By JENNIFER VAN BERGEN

Two recent articles by Andrew C. McCarthy, a contributor to the National Review and a former chief assistant U.S. attorney who led the prosecution of Sheik Omar Abdel Rahman in connection with the first World Trade Center bombing,[1] discuss related topics of great interest to those concerned about how we handle the war on terrorism. In one, McCarthy discusses the topics of torture, the laws of war, the laws prohibiting torture, the POW status, and finally torture warrants.[2] In the other, McCarthy proposes a new court system which he calls a "national security court."[3] I admire the intelligence and clarity of McCarthy's analyses (and can overlook his occasional pot-shots at leftists and "pie-in-the-sky libertarians"), and he nearly convinces me, but in the end I find flaws and disagree with his conclusions. Let's look at them.

In his article on Abu Ghraib, McCarthy admits that "the whole crossroad of terrorism and law enforcement is complex," but argues that terrorists "must be fought as military enemies rather than criminal elements" for three reasons: (1) "the justice system . . . is incapable on its own of neutralizing more than a tiny fraction of the hordes that oppose us," (2) "judicial proceedings that target a relative handful of committed (and some suicidal) jihadists do not dissuade them; they have the opposite effect," and (3) terrorist cases require us to "cut corners" constitutionally, which is not good for "our system's majesty" because if we say "we treat terrorists just like we treat everyone else . . . everyone else is [in fact] being treated worse, and that is not the system we aspire to."[4] McCarthy concludes that "[b]y stretching precariously to assimilate [terrorists] while accommodating national security, the system succeeds only in warping itself."

It's a compelling argument. McCarthy adds that "it's not fair that the barbarity of a few should be of such profound consequence, but anyone who thinks that 'trust us' carries the same assurances today as it did [before the revelations of Abu Ghraib] is hallucinating." With powerful concessions to the principles often relied on by civil libertarians (ie., that "the sanctity and dignity of human life is a bedrock premise of civilized society, expressed at the Founding in the Declaration of Independence itself"), McCarthy nearly has his cake and eats it too. And his consequent suggestion becomes nearly irrefutable: that in order to prevent the dilution of our constitutional system of protections, we create a new parallel legal system just for terrorists, which he calls a "national security court."