As the Supreme Court gets ready to release its decisions in the enemy combatant cases, the Scott Peterson case offers a helpful reminder that establishing proof of guilt beyond reasonable doubt is a tall order–as it should be in conventional criminal cases. In cases involving individuals suspected of waging war against us, however, a different approach is needed. Ruth Wedgwood, a law professor at Johns Hopkins University, explains it well in this month’s issue of Foreign Affairs:

The purpose of domestic criminal law is to inflict stigma and punishment, and so it must be applied cautiously. Such reticence is proper for civil government in peacetime, but it is not always appropriate in war. Different priorities come to the fore when an international foe embarks on a campaign to kill or wound thousands of people. The law of armed conflict thus allows measures, such as the preventive internment of enemy combatants during the conflict, that do not require the full-dress procedure of criminal trials.

The difficulties of relying on criminal law, especially on its cumbersome standards of proof, may not be self-evident to nonlawyers. Roth suggests that criminal justice can provide all the tools necessary to defend a democratic public against catastrophic terrorism. But few criminal cases can be built on circumstantial evidence alone, and criminal proof demands near certainty — or proof “beyond a reasonable doubt” — a very high hurdle that even first-rate intelligence cannot usually meet. In a typical case, defendants cannot be arrested or sent to trial unless the state can find eyewitnesses or co-conspirators willing to testify against them publicly, braving the dangers of retaliation. Similarly, the rules of evidence used in criminal trials keep critical information out of the courtroom. Items that were seized without a search warrant or that lack a flawless chain of custody — for example, the al Qaeda computer hard drives chock full of organizational data that a Wall Street Journal reporter found in a Kabul marketplace — might not be admissible, no matter how important they are. Statements made by combatants in custody might also be rejected if the fighters were denied access to counsel at the time. Any defense lawyer sent to the battlefield would advise captured combatants to stop talking, undermining chances of uncovering timely intelligence about al Qaeda’s plans. And criminal law requires that sensitive methods of surveillance be disclosed when they yield information offered as evidence, even though such transparency may prevent intercepting telltale signs of future attacks.

The bottom line is, when we are at war, there must be some means other than the traditional criminal justice system whereby potentially dangerous individuals can be detained.

For more on this topic by Wedgwood, see “The Enemy Within,” which appeared on the Wall Street Journal op-ed page in June 2002. See also “Justice for Terrorists: Can we afford to try members of al Qaeda in ordinary civilian courts?” by J. Andrew Kent in the June 2004 issue of Commentary magazine (available online for $4.95).

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