05/13/2010 11:58 am ET Updated May 25, 2011

You Can't Fight a War in Court

Whatever their ideology, Americans have serious reason for concern over this Administration's handling of national security matters. Simply put, this Administration does not appear to treat national security as its highest priority and does not see that we face a mortal threat from enemies both internal and external. It is time for Americans to say "Enough already!" and demand that their leadership protect them. Otherwise, the other Administration priorities -- e.g. health care, clean energy, financial reform -- will become moot.

The events and Administration comments of recent weeks indicate that Goldman Sachs and the rest of Wall Street, and health insurers are more of a threat than Iran and the growing, Muslim-based Fifth Column in the U.S. It has become impossible to pick up a newspaper or review a major internet news site without hearing about some new denunciation or prosecution of an investment or commercial bank or a health insurer. However, we hear relatively little about how the Administration proposes to protect us from the growing threats to our physical security.

Iranian rhetoric becomes more bellicose each day, and is now being disseminated on American soil at the UN and reflects increasing nuclear capability and defiance of Western desires. How do we respond? We respond with unprecedented criticism of Israel, prompting several full page ads from Jewish organizations to defend Israel, and with angry denunciations of Iran from Secretary Clinton and a walkout of the American U.N. delegation. We do not respond with real economic sanctions or military action aimed at heading off the rise of an irresponsible nuclear power.

The rising frequency of domestic terrorist incidents (acknowledged as such by none other than Attorney General Holder) with at least three major ones in the last six months: Ft. Hood, the Christmas Day attempted bombing and the Times Square attempted bombing -- make clear that in the terrorist community situated in the U.S., we are seen as an increasingly soft target. How do we respond?

In every case, we respond with criminal prosecutions befitting drug dealers, tax cheats or bank robbers. We do not acknowledge that these episodes are acts of war, when the ties of the perpetrators to foreign enemies make clear that this is the case. We did not win WW II with indictments, briefs and motions, and we will not win the war on terror with such mechanisms. As an attorney and adjunct law professor, I can confidently say that the criminal justice model with its insistence upon proof of "guilt" with legally admissible evidence was never intended for use against external enemies who happen to be temporarily present in the U.S., and does not provide the flexibility to take action to prevent harm from external attacks.

Our administration, headed by its Law Professor in Chief, seems unwilling or unable to differentiate between noxious, inappropriate stereotyping and punishment of persons based upon their ethnicity - e.g. WW II internment of Japanese-Americans strictly because of such status - and common sense consideration of individual behavior by Muslims. There appears to be a belief that any weighing of someone's ethnic background when determining if they are a threat is unconstitutional. This belief is tragically wrong and invites more incidents from those who would use prosecutions as some sort of forum.

Attorney General Holder continues the miss the point. In suggesting in televised public appearances on May 9, 2010, that legislative changes to the requirement that Miranda warnings be given to terrorism suspects should be considered, he again focuses on introduction of evidence in criminal proceedings (and overlooks the fact that Congress can not change the Miranda doctrine pertaining to criminal defendants, which is constitutional in nature). Miranda is irrelevant here because terrorist suspects, even U.S. citizens who appear to be in the service of foreign regimes, should not be in the criminal justice system at all. They are engaged in war against the U.S., so that convicting them in court is beside the point.

After 9-11 and other incidents, we hear about how the perpetrators were trained in Pakistan or Afghanistan before coming to the U.S. We do not appear to take a closer look at persons who are returning to or entering the country from such places. Perhaps there are legitimate commercial or family reasons for such visits, but we should at least be asking a lot of questions of such persons to see if there is reason for concern in individual cases.

Similarly, it is hardly unconstitutional to address on an urgent basis, specific alarms which are sounded about a person, Muslim or otherwise, yet this was not done with Maj. Hassan of Ft. Hood notoriety when he began spewing extremist rhetoric while on duty or with Mr. Abdulmutallab when his father -- a leading Nigerian banker -- called the American embassy with his concerns. It may not have been done on a timely basis with Mr. Shazab following the Times Square incident when despite being on a 'no fly" list, he was allowed to board a plane.

I am calling on Americans of all persuasions to peaceably but vocally demand that their government use more vigilance and better judgment incorporating practical considerations when addressing the threats to our security.