More, that I hope isn't too tangential:
We discussed in another thread recently the spectacular decline of War in the West over the past 60 years or so. The whys and hows are a broad discussion, but along with the decline of War came a rise in morality, manifest as a reduced tolerance for the terribleness of war. Some of it just happened (smart bombs instead of carpet bombing - not just cheaper, easier and more effective, but now a moral requirement), some was legislated (Geneva Conventions). The problem comes in trying to integrate the civilized Western world with the 'everyone else' in the world. And I don't care if that sounds arrogant: it's a reality - it's what this discussion is really about.
The clearest example of Western morality's failure to deal with people who don't buy-into Western morality is with our utter failure to adequately deal with the piracy problem in Africa. The US Navy and Marine Corps' very first power projection abroad was in dealing with African piracy (the Barbary Wars). The wiki on it calls the successful Second Barbary War "the beginning of the end of piracy in that region...Within decades, European powers built ever more sophisticated and expensive ships which the Barbary pirates could not match in numbers or technology." But now piracy is back. The physical equation hasn't changed - if anything, the technological divide is even broader. What has changed is that we've built ourselves a cage of supposed superior morality that prevents us from dealing with these pirates on their terms. To bring back the sports analogies: it is tough to win a game when you follow the rules and your opponent doesn't.
IMO, a morality that leaves the moral unable to protect themselves from the immoral is ineffectual. If everyone subscribed to and was or could be held accountable to the same morality, it would make sense to ship pirates to Paris or New York for trials (as we have), but they don't and it doesn't. It may feel nice[/b] to do it, but we don't have an NYPD precinct in Mogadishu, so it just doesn't have much value beyond showing the pirates that we are, in fact, not serious about stopping them.
Piracy is a simple, clear-cut, historically vetted example of the necessity of dealing with such people on their terms and our failure to do so makes it very surprising to me that we are dealing with terrorists - IMO correctly - on their terms in a lot of cases. Terrorism is new and much more difficult because of what it is in many cases: an infiltration.
Anwar al-Awlaki, an American citizen, killed by a drone in Yemen, was not just a crazy guy with a Youtube account. He was a recruiter and manager of al Qaeda terrorists (just read his wiki - these things are too obvious to need to actually discuss them here). His activity in the US in the '90s and leading up to 9/11 - as a prominent, mainstream Muslim, secretly helping coordinate terrorist attacks - make him the archetype of why Muslims are often feared in the US.
AFAIK, he was never charged with a [major] crime, but was placed on a targeted killing list by Obama - which was shocking to me. His fater, in the US, sued Obama to have him removed. The lawsuit was thrown out for lack of legal standing. When operating in the US, he was under the jurisdiction of and was investigated by the FBI. When he left to go to Yemen, he put himself under the "jurisdiction" of the department of defense and the department of defense handled him as is their way. Yet for some reason, at the same time, we put pirates under the jurisdiction of the NYPD?! Crazy.
My point is this: The law is built on a framework of morality, but that framework has limitations - gaps - that sometimes make it difficult to stretch the law to fit it. We should absolutely continue to strive to fill those gaps and codify our morality, but we should not lose sight of where the gaps just can't yet be filled. This is one of those cases. The US has a long and prominent history of development, expansion and protection of rights. It is, imo, silly, insulting and paranoid to see us becoming Stalinist Russia because we're struggling to deal with a newly found gap (due to a new threat) in our ability to apply morality to the law - or rather, our ability to protect our morality with the law.
Going a step further, people need to relax about viewing this as a sign of moral decline. It is actually just the opposite: It is the rise of morality that exposes such gaps. Though it should be obvious, it is obviously not. But if you doubt it, just consider how different this conversation would be if we were to have had it 65 years ago, when carpet bombing was standard operating procedure and the Geneva Conventions didn't exist. We're having this conversation because our morality is evolving/advancing, not because it is declining.