The rule of law during war

In response to a recent editorial suggesting that Sen. Max Baucus should share some blame in the case of three Navy SEALs being prosecuted for roughing up a known terrorist in Iraq, I would suggest it is more appropriate to blame the application of a legal paradigm rather than our senior senator of 30 years of service. Allow me to explain.

The facts in the incident involving the SEALs are that they were given the mission to transport a known terrorist suspect to a secure site. The SEALs in question were not part of the apprehension team but had full knowledge of the terrorist's profile and background.

However, a SEAL represents our nation's best, and they were wrong in being anything less than absolutely professional. Considering the outcome of the encounter with the three SEALs was only a "fat lip," a verbal admonishment would have sufficed.

The fact that the incident was subsequently investigated twice by the Naval Investigative Service, and in both cases no evidence of gross misconduct was found, should have been the end of the story. However, when the Iraqi government complained, the State Department, under the leadership of Hillary Clinton, not only felt compelled to listen to a foreign government over its own military institution, but also pressured the military for additional disciplinary action.

It should have not been a surprise that the young SEALs, hardened in combat and trained never to quit, refused to roll over and demanded their right to courts martial. The Obama administration, firm in the misguided belief that negotiation and adherence to the rule of law can solve all our problems overseas, failed to step in and provide leadership as commander-in-chief. The end result was the incident becoming a national embarrassment and serving to demonstrate weakness to our enemies.

The real issue, however, has little to do with the SEALs and is far more dangerous in terms of our national security. Simply put, the issue is the administration's insistence that the same criminal justice system we enjoy at home should somehow be applied to a war environment overseas.

As a former constitutional law scholar, the President seems to be caught in a legal paradigm that is difficult to reconcile with the reality and complexity of the global war on terrorism. The idea that the rules of evidence are the same on the battlefield in Afghanistan as they are while serving a warrant in Chicago, or that one can negotiate and reason with an enemy that applauds the killing of thousands of innocent civilians, demonstrates a profound lack of understanding of the meaning of war.

Our military evaluates and strikes an enemy based on threat and risk. Introducing a host of legal requirements associated with collecting evidence and affording Constitutional rights to our enemies inhibits our ability to fight effectively. Yet, placing our troops into harm's way and saddling them with additional administrative and legal burdens is very real and under way.

During the last few months, NATO commanders in Afghanistan have been forced to limit operations at night, and ground commanders are being tasked to seek higher approval in order to engage a known enemy. The restriction on unilateral military operations in Iraq and the requirement to bring Iraqi troops "along for the ride" on every mission reduces operational security and puts our own forces at greater risk.

If there is one lesson to be learned from 9/11, it should be that the rule of law is only effective if your enemy is willing to abide by it. The fact that Gitmo (the detention center at Guantanamo Bay) remains open a year after the President directed it to be closed should be a clue that the lines are not so black and white when it comes to borderless terrorism and the threat it poses. The harsh reality is that we face an enemy that answers to no country or government and is willing to do anything to kill us in the name of God.

As a former Acting Commander of all Special Forces in Iraq, the difference between terrorist and criminal activity is obvious the first time that one of your soldiers is killed in combat. No reasonable person wants war, but if we are to fight, we must fight to win. America must defend her right to use every advantage necessary to win in combat and resist any attempt by any government or power, to turn a battlefield into a courtroom.

Retired U.S. Navy SEAL Cmdr. Ryan Zinke, of Whitefish, is the state senator representing Senate District 2, Whitefish and Columbia Falls.