In Josh Marshall's back-and-forth with The National Review's writers Thiessen and McCarthy, Marshall credits McCarthy for making a more coherent argument in favor of trying the "Underwear Bomber" in a military tribunal rather than in a civilian court.

Theissen argues in favor of a military tribunal for Umar Farouk Abdulmutallab, and Marshall rightly discounts it for reason that Thiessen attempts to make a distinction between the Underwear Bomber and the Shoe Bomber where no such distinction exists.  If our system of civilian justice was capable of serving our needs in the Reid case, then it most assuredly should be available to us in the case of Abdulmutallab. Thiessen is shown to simply be stretching the facts and his rhetoric to match GOP talking points and thus ignominiously achieve nothing more than an attempt to score political advantage from this terrorist act against the United States.

Marshall then shows that McCarthy takes a more rhetorically defensible tack in first asserting that we were wrong in trying Reid in a civilian court.
 

"This is all a perfectly consistent, reasonable argument. Not one I agree with, I think, for a number of different reasons. But still one that can stand on its own two feet and have its tires kicked without toppling or falling apart. What you really can't do is claim that the Reid decision was the right one but that Abdulmutallab has to be treated differently -- or that President Bush didn't have the ability to treat Reid differently than he did. The whole question can be smashed to pieces, which McCarthy clearly gets, if you're just willing to say: Bush made a mistake. But that seems to be beyond Thiessen's reach."

Marshall correctly identifies the distinction between Thiessen's intellectual cowardice and the more defensible argument presented by McCarthy. But Marshall's troubling waffle ("I think") about the depth of his opposition to McCarthy's argument is itself quite troubling.

McCarthy simply reiterates what has become the "Jack Bauer" defense of a near total disregard for human rights or even the rule of law itself in this hysterical "defense of our national security." There is simply no measure too extreme that must be undertaken to ensure that any terrorist - real or imagined - gets the punishment he deserves. Torture? Check! Extraordinary Rendition? Check! Secret Gulags? Check! Suspension of Habeus Corpus and other protections of civil liberties? Check!

Expressed justifications aside, it really doesn't matter if these activities actually promote the public's safety. In the matter of torture as a component of acquiring useful information, for example, the record shows that it is in fact counter productive in many cases and compromises the ability to determine the guilt or innocence of the person being interrogated. Intelligence experts almost universally agree that torture is a device by which you can compel someone to say whatever it is you want them to say (i.e. "I was abducted by aliens!"), but patently useless in gaining actionable intelligence.

But don't let such details stand in the way of the McCarthys and the Cheneys, et. al., in showing the world just how tough we are to terrorists (again, real or imagined). And here is the point in McCarthys argument wherein we should all take a step back and consider just what it is that is being promoted here:

"By contrast, military detention -- which the Supreme Court reaffirmed in the 2004 Hamdi case -- allows us to take our time, months or years if necessary, to create the atmosphere of isolaton and dependence needed for thorough-going interrogation.  Even after the detainee's current, operational intelligence is exhausted and stale, we can continue going back to him to help us identify newly discovered players and break the code on newly discovered plots.  (Insiders know much more about how al Qaeda works than government agents, and they usually remain valuable resources for years.) Plus, postponing discovery and trials denies al Qaeda valuable intelligence about our state of knowlege, methods of intelligence gathering, and sources of information.

"The law of war framework maximizes our ability to prevent terrorist attacks while maintaining our ability to prosecute at the time and in the system of our choosing -- rather than according to the rigors of the civilian system's Speedy Trial Act. Adopting it would enable President Obama to prioritize his first responsibilities -- protecting the nation and fighting the war -- without compromising his important but subordinate interest in prosecuting war criminals.

"That is, it's a no-brainer."

A no-brainer, indeed! McCarthy isn't even bashful in making the assertion that military tribunals are preferred over civilian courts for reason that they can be convened (or not, even) in a manner that avoids any pesky rules protecting the rights of the accused. National Security first! We can worry about human rights and the rule of law later! These are the priorities that McCarthy so plainly outlines, and they should send a chill up the spine of us all.

As Marshall points out, McCarthy makes a coherent and a rhetorically defensible argument. But where is there room in this argument for any exception, such as that which might be made in the case of a U.S. citizen who might be deemed a terrorist? Read the argument as presented above once again, and ask yourself why the national origin of the "terrorist" or ill-defined "war criminal" would present a threshold beyond which McCarthy or the other "Jack Bauers" wouldn't cross in an effort to "preserve national security."

There is a convenient assumption made, of course, that such measures are reserved for only non-citizens, and then only the "worst of the worst" at that. We are a nation of laws, after all, that would never allow such an abrogation of our own principles and our Constitution to abide any such violation of a citizen's civil liberties, right?

Maybe not. Look at just how far we have travelled down the road of anarchy and a genuine contempt for basic, overall principles of personal Liberty since launching this "War on Terror." Who, after all, in the pre-Cheney era would have ever assumed that we would brook discussions among our elected officials about just how much torture we as a nation would sponsor under ANY circumstance? Yet, the waterboarding of KSM and the abusive treatment of other detainees who have never even been charged with or tried for ANY crime is no longer even newsworthy, and is then considered within the framework of "Did the detainee deserve to be tortured?" Who would have envisioned secret prisons operated beyond the purview of Congress or the International Red Cross by our President and his private army made up of the CIA and private contractors? Such things were once considered to be the domain of only the most extreme dictatorships, yet we have meekly accepted the reality of such U.S. sponsored installations lest we be personally accused of being insufficiently "tough on terrorists."

It is not a stretch at all to anticipate the day wherein we at last cross the present threshold and surrender our own civil liberties and the rule of law as preserved in our Constitution, all to "enhance" our ability to fight the War on Terror. Indeed, an honest review of McCarthys argument in favor of military tribunals for anyone HE would define as a "war criminal" offers a resounding justification for just such an eventuality.

Yet, we ultimately must remember that a nation is nothing if not defined by its Constitution and its adherence to the rule of law. If we are to submit to McCarthys priority of "national security first; Liberty second," we will have in fact surrendered to the terrorists such as McCarthy and Cheney and the others who would willfully destroy this nation in order to save it.

Josh Marshall says he "thinks" he's opposed to such an undermining of our deepest principles such as is presented in the argument offered by McCarthy that promotes military tribunals over civil courts. I'd say vigorous opposition to McCarthys terroristic embrace of fascism is a "no brainer" for any patriot concerned about the future of this nation and its required adherence to common decency and the Rule of Law.