Biden vs. Cheney

One television commentator referred to it as a smackdown worthy of World Wrestling Entertainment, but, to be honest, Sunday’s talk-show back-and-forth between Dick Cheney and Joe Biden was a surprisingly substantive exchange on how best to bring terrorists to justice. For the most part, the current vice president had the better of the argument, but on one issue -- whether Khalid Shaikh Mohammed should be tried in a civilian court -- Biden ominously signaled that the administration might be moving toward Cheney’s view.

We were not surprised when Cheney said that alleged Christmas bomber Umar Farouk Abdulmutallab should have been treated as an enemy combatant, not a criminal with the right to remain silent; nor were we shocked to hear him say that Abdulmutallab should have been turned over to interrogators who could decide how best to win his cooperation -- even employing waterboarding if necessary. Biden rightly countered that skilled FBI interrogators “got all the information they could get from him prior to him going silent” and noted that Abdulmutallab has continued to cooperate.

The fact is that interrogators did question Abdulmutallab before advising him of his right to remain silent -- and could have continued for even longer. Since 1984, the Supreme Court has recognized an exception to the Miranda rule when required by “overriding considerations of public safety.” That would apply when an arrested terrorist might know of impending attacks.

Biden also neutralized Cheney’s larger complaint that the Obama administration doesn’t believe it’s at war. Biden cited not just President Obama’s statements but recent U.S. successes on the battlefield. To the argument that a state of war doesn’t permit treating terrorists as criminal defendants, Biden had a devastating reply: Even under President Bush, he noted, hundreds of terrorists -- or “enemies,” if you like -- were successfully prosecuted in civilian courts.

It’s distressing, however, that Biden indicated that -- in light of congressional opposition -- the administration might be rethinking its decision to try Mohammed and other alleged 9/11 plotters in federal court rather than before a military commission. Such a retreat would be unwise not because military trials are inherently unfair -- as Biden observed, “We have improved military commissions considerably” -- but because civilian trials are both demonstrably effective and an affirmation that even this country’s enemies will be afforded due process of law. Making that statement would be a victory for the United States on another battlefield -- that of world public opinion.