These two law-enforcement officers did what police officers tell the public to do: Don't intervene. Get a description of the offender. Call the police. Be a good witness.

Much debate ensued about whether the officers' behavior was appropriate, but the real tragedy is that the victims of this rampage did not have the legal opportunity to arm themselves. To them, the message was clear: Be a good victim.

In Marin County, the jurisdiction where those two officers work, Sheriff Robert Doyle requires residents to demonstrate "extreme need" before they can get concealed-handgun permits. Among the few who have met this burden are private investigators, jewelry dealers, and a former district attorney.

Ten states still use a system that subjects lawful self-defense to the whim of a functionary such as Sheriff Doyle, a practice known as a "may issue" policy. (Two more refuse to grant concealed-carry permits to anyone.) The decision rests with the local chief law-enforcement officer, who may employ whatever criteria he deems valid — or deny permits for no reason at all. The result is that only those who are wealthy or politically connected are able to secure permits. Sean Penn got one after he claimed that a former employee was stalking him and that he had received a number of crank calls and letters.

This is not the case in most of the nation. Thirty-eight states have "shall issue" permit systems, which essentially require the chief law-enforcement officer to issue permits to everyone who passes background checks and training requirements. Many of these states have established reciprocity agreements, making the permits they issue valid in much of the nation. Years of experience have shown that permit holders are far more law-abiding than the general populace.

The propriety of "may issue" permitting is now being challenged in court on the opposite coast. The District of Columbia maintains a "shall issue" or, more appropriately, a "no issue" policy. After the Supreme Court struck down the District's ban on handgun possession within the home last year, the District repealed the police chief's power to issue permits to let gun owners carry their weapons outside the home. Several plaintiffs have filed a lawsuit challenging this refusal to issue handgun-carry permits.

In the Heller decision last year, the Supreme Court affirmed the Second Amendment right of individuals to keep arms in their home and have them in a condition useful for self-defense. The Court stressed that the individual right to arms was not an unlimited one, leaving undisturbed bans on carrying guns into "sensitive places" such as schools and government buildings. The D.C. suit does not challenge this power, but asks the court to recognize that the whole of the District of Columbia cannot be a "sensitive place."

The District will almost certainly mention that the Heller decision also did not call into question 19th-century bans on concealed carry. This ignores the fact that while concealed carry was considered the mark of a brigand, open carry was accepted and legal. Modern feelings are the reverse; concealed carry is now practiced far more often than open carry. The plaintiffs do not specify the method of carry — open or concealed — merely that the Second Amendment does not stop at your front door.

The lawsuit intends to make the District face reality. Criminals have guns. They brandish them when the police are not on the scene and victims are outside of their homes. The D.C. government should not handicap the honest, law-abiding citizens who wish to carry arms in order to defend themselves.

One of the plaintiffs, Tom Palmer (disclosure: Tom is my colleague at the Cato Institute), once used a handgun to deter a mob of violent aggressors who were yelling death threats at him. Tom's right, and the right of any other citizen, to arm himself should not be subject to approval by a civil servant who will not be present to protect them. Even if the police are present when someone is being assaulted or killed, they don't necessarily have a duty to intervene — as evidenced by the praise given to the two Marin County officers by their sheriff after the aforementioned incident.

Just as the Supreme Court affirmed a right to be armed in the home for self-defense, the courts of the District of Columbia should affirm the right of law-abiding citizens to be armed and defend their own lives outside of their homes. Ending "may issue" policies that work to ensure the victimization of average people will make the District, and eventually the nation, a safer and more just place to live.

The lack of rigorous debate over this policy is ominous. In the Senate, the hate-crime legislation was not even adopted as a stand-alone measure, but as an add-on to another bill. This relative stealth aside, the flourish of the president's signature pen will radically redraw the boundaries between state and federal jurisprudence.

States and the federal government are considered separate sovereigns. If someone has broken both state and federal laws, he can have a day in court in both systems. A counterfeiter can be charged for his funny money in federal court, for instance, and also face murder prosecution by a state if he has moved to eliminate his competition. A trial by a state does not rule out federal prosecution for the same crime, and this does threaten to thwart the Fifth Amendment's demand that no person suffer double jeopardy. In practice, however, this hasn't happened too often; until now, limited federal jurisdiction meant that Uncle Sam usually didn't have the ability to try or retry a state defendant.

That's what makes the new hate-crime law so remarkable. Its defining feature is not that it allows federal prosecution of crimes motivated by the race, gender, sexual orientation, or disability of the victim. What's significant is that it greatly expands the federal government's jurisdiction to prosecute cases that properly belong in a state court.

In legal terms, this law achieves its aims through federal authority over interstate commerce. If someone assaults you by throwing a cell phone at you, what Congress has done is enabled the prosecution of the thrower as a function of the fact that the cell phone was made in Japan, and therefore must have crossed state lines. To non-lawyers, that surely sounds absurd which is precisely why this law's drastic overreach is so stark. This is a sea change in the power of the government to reach into a state and define violence between two people as a federal matter, one traditionally handled by state laws and state prosecutors.

An equally striking feature of the law is that the federal power to prosecute is not dissipated even if the defendant is found guilty by the state. It explicitly says, in fact, that federal charges should be pursued if the state verdict "left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence."

The term "demonstratively unvindicated" becomes downright Orwellian when applied to the kinds of cases that will inevitably invite public outcry. The crime of rape, for example, is already severely punished by every state but has brand-new implications as a hate crime because it is typically an offense based on gender. And are there any high-profile rape cases that do not produce amplified cries for vengeance?

The protection against double jeopardy was put in place to prevent retrying a politically unpopular but evidentially elusive defendant until he was found guilty. Congress apparently sees this as a glitch, rather than a virtue, in the American criminal-justice system.

The power to reprosecute is not one we should grant to any government, much less one with a politicized selection of who will be haled into court. For evidence, look no further than the Duke lacrosse non-rape case a few years ago. If the trial had gone to court and ended in acquittal, would we now be in federal court for a second round? The recent Department of Justice decision not to prosecute members of the New Black Panther Party who engaged in voter intimidation last November illustrates the flip side of this coin. Decisions to prosecute or not based on race undermine the rule of law.

Politically motivated prosecutions are sure to result from this statute. Attorney General Eric Holder saw fit to lecture America as a "nation of cowards" when it comes to race. He is now empowered with the new hate-crime authority to retry many high-profile cases that split political constituencies on hot-button issues. I have no desire to see what havoc his notions of "courage" will wreak upon fundamental American civil liberties.

On the Senate floor, John McCain, R-Ariz., cut to the unconstitutional core of this bill and all such "hate crime" legislation. Leahy's bill, as of this writing, the president is eager to sign.

Said McCain: "Our legal system is based on identifying, capturing and punishing criminals, and not on using the power of government to try to divine biases." In opposing what James Madison condemned as "thought crimes," McCain added: "Crimes motivated by hate deserve vigorous prosecution, but so do crimes motivated by absolute wanton disregard for life of any kind." No matter against whom.

Leahy's bill, like the counterpart "hate crimes" measure of House Judiciary Chairman John Conyers, D-Mich., that passed in the House this past April, violates the 14th Amendment's equal protection under the laws for individual Americans by setting up a special collective class of victims whose assailants, when convicted, will be given extra punishment for crimes perceived to be based on gender identity, sexual orientation or disability, among other biases. Those who attack the elderly, police or those of the poor who are not among the "protected classes" would not get lengthier "hate" sentences than the law provides for the ACT itself. Doesn't this make lesser citizens of their victims?

Very late into the night on July 12, Democratic Senate leader Harry Reid slipped the Leahy "hate crimes" bill, as an amendment, into the $680 billion Defense Authorization Act. Leahy agreed with this avoidance of a full-scale floor debate. The amendment was approved by voice vote, following a 63-28 procedural vote that broke a Republican filibuster. All the 28 negatives were by Republicans. Harry Reid declared the vote "a victory for all Americans."

For some Americans more than others.

An editorial in the daily Free Lance-Star (Fredericksburg, Va.) in May warned: "Hate-crimes bill is an assault on the Constitution." (Full disclosure: The editorial mentions content I wrote for the Cato Institute.) Unique among daily newspapers, this paper occasionally runs educational articles on the Constitution, very much including the Bill of Rights. I wrote one for it on the First Amendment. Too bad other papers don't tell Americans who they are.

Trying to avoid criticism of the impending law by First Amendment protectors, Sen. Sam Brownback, R-Kan., had submitted an amendment to the Leahy measure that passed and says this law will not infringe on freedom of speech "if such exercise of religion, speech, expression or association was not intended to plan or prepare for an act of physical violence; or incite an imminent act of physical violence against another."

However, the bill still punishes a PERCEIVED hate crime.

That's the kind of broad language James Madison did not intend to encumber the First Amendment with when he wrote it. The ACLU now insists the Senate bill include what it calls the stronger protection of free-speech rights in the House bill. But the White House Web site points out that the House bill cites a hate crime is based on actual or PERCEIVED hate against a victim. Both bills include constitutional violations of double-jeopardy prosecutions by making it easier for the federal government to prosecute a defendant in a hate-crime case when the state says it cannot convict or chooses not to prosecute.

There were minor differences between the Senate and House "hate-crimes bills," requiring a Senate-House conference to resolve them. As I write this column, the conference hasn't happened yet, but I expect to see President Obama, a former professor of constitutional law, to delightedly sign it.

Almost as alarming as this invitation to state and then federal prosecutors to pursue "thought crimes" is a statement made by Leahy advancing the bill before the Senate Judiciary Committee, which he chairs. The list of supporters he cited is too long for inclusion here, but among them are: "26 state attorneys general ... the Federal Law Enforcement Association; the International Association of Chiefs of Police; the Hispanic National Law Enforcement Association ... The National Asian Peace Officers Association; National Black Police Association, National Center for Women in Police ... 26 state attorneys general ... National District Attorneys Associations...and 44 women's organizations."

I have often reported on other such constitutionally disadvantaged groups: school boards, heads of school systems, principals and teachers who fail - while assiduously teaching to tests in reading and math under No Child Left Behind - to inform students of the roots of their individual liberties in the Bill of Rights. Absent from most classes are the dramatic stories of the long, tumultuous history of what it's taken to keep the First Amendment, due process, the right to privacy and the rest of the Constitution alive.

How many Americans of all ages know of James Madison writing to Thomas Jefferson: We have "extinguished forever the ambitious hope of making laws for the human mind." But here we now have added federalization of one way not even Bush and Cheney ever thought of to undermine the 14th Amendment's "equal protection of the laws" for individuals, not protected classes.

The law would expand federal jurisdiction from crimes motivated by the victim's race, color, religion, or national origin to include the victim's gender, sexual orientation, gender identity, and disability. It also disconnects the prosecution from traditional civil rights statutes such that whole categories of intrastate crimes successfully prosecuted by state courts would become the business of the federal government.

There are two problems with the proposed law. First, crimes motivated by racial animus, misogyny, or homophobia are already recognized as atrocities and prosecuted to the fullest extent of the law. No new law is needed. Second, making the ideology of the perpetrator a centerpiece of the trial doesn't deter like-minded extremists; it encourages them.

We don't have to look far through today's headlines to see that the current system works. Those who commit crimes of violence motivated by extremist ideology are consistently locked up by a rule of law that criminalizes their actions, not their ideas.

Scott Roeder is accused of shooting abortion doctor George Tiller to death; he is sitting in jail awaiting prosecution. The same goes for Abdulhakim Mujahid Muhammad, who shot up an Army recruiting station in Arkansas and killed Pvt. William Long. As soon as Holocaust Museum shooter James von Brunn is out of the hospital, he can join them.

Each of these depraved individuals saw a world out of touch with their values, and there are others like them. The difference between these three individuals as lone radicals and the broader inspirations for antiabortion, radical Islamic, and anti-Semitic groups is how they are perceived by their audience. Not the public at large, but the audience of like-minded individuals who might copy their actions.

A smart prosecutor would not go down the road of a suspect's approved and disapproved motivations to kill someone. Murder is always murder most foul. If you try extremists or domestic terrorists for their actions, not their ideas, they are no longer martyrs. No longer heros, freedom fighters, nor revolutionaries. They are criminals.

With these kinds of defendants, the worst thing you can do is charge them under a statute that criminalizes their ideas. When the whole point of their violence is to stir up like-minded people, hate-crime charges are so counterproductive they border on the insane.

The indicted murderer can now proudly stand in court and espouse why it was necessary to kill someone in cold blood. The prosecutor, claiming that a crime for the sake of an idea is somehow worse than a crime for money or a crime of passion, will rail against the racist/sexist/homophobic nature of the defendant.

In a sense, the murderer then wins. He can blame the new law that protects a certain class of people more than others. This is the same class of people that he says runs or exerts undue influence over the government.

Worse yet, the proposed legislation picks favorites among the public. Mr. Von Brunn could arguably be charged under the proposed hate-crime legislation because he targeted a Jewish museum and shot an African-American guard. Mr. Roeder's crime had the same death toll, but because there is no hate-crime protection for abortion providers he is outside the hate-crime ambit (though arguably subject to prosecution under a separate overfederalization of violence against abortion providers).

Mr. Muhammad wanted to kill an American soldier and he did, but it's not a hate crime unless he was specifically looking for a Christian, female, or gay soldier.

The folly of this legislation was put on display in recent Senate Judiciary hearings. Sen. Ben Cardin (D) of Maryland said that hate crimes not only hurt the victim, they diminish the whole community.

If this is the case, then the best remedy is for the community to reinforce its values and make itself whole by prosecuting a violent criminal for his actions.

If there is a subset of the local population that shares the views that drove the perpetrator to commit his crime, then the imposition of federal jurisdiction based solely on the motive of the criminal engenders resentment and encourages others to mimic his behavior.

What is being proposed is feel-good legislation that gives ideologues more incentive to commit their crimes and a bigger platform for their views. The federal government should not create an aid program for hatemongers.

Protecting life is the foundation for a republic such as our own. Indeed, the most fundamental liberty is to life itself.

Tiller's murder obviously violates both a commitment to life and the rule of law. No free society can survive if its members believe themselves authorized to mete out their personal version of justice on others.

The murder has turned Tiller into a martyr to some yet, ironically, his lifework was death. Celebrated by the Center for Reproductive Rights as "a stalwart and fearless defender of women's fundamental health and rights," Tiller was known for performing partial birth abortions. That often meant delivering and then killing a fetus well past "viability," that is, the ability to survive on its own.

There's no doubt that the circumstances of many of those seeking abortions are difficult. Nor can any defender of liberty feel comfortable advocating government intrusion in such a personal matter as childbirth.

Yet a baby is not the property of his or her mother. Few people disagree that children have the full right to life like adults. Moreover, the moment of birth makes no difference in the moral value of life. Even some abortion advocates are uncomfortable with the brutality of many late term abortions, of which the late Sen. Daniel Patrick Moynihan said "This is too close to infanticide."

Nevertheless, "viability" should have no more moral significant than birth. Once formed, every human life is unique. That death is presented as the preferred option for "unwanted" children is bizarre. With families desperate to adopt, how can one advocate killing babies as a solution?

The strongest argument for not restricting abortion is personal liberty. Yet liberty always has been constrained when another person is involved. Especially when the other person exists only because of one's free choice.

Abortion is not a matter of choice, but an attempt to flee from responsibility. Other than in the case of rape, pregnancy results from the decision to have sex, freely made. People are, rightly, legally free to have sex with whomever they desire whenever they desire. That being the case, they also should be held responsible for the consequences of their decisions. One of those consequences is a baby.

One can argue about the appropriate responsibility of putative parents for their child. But surely they cannot argue that, having freely brought a life into being, they have an untrammeled right to snuff it out. Yet that is the position of the far precincts of the "pro-choice" movement.

Indeed, some see abortion as a positive good. Consider the "National Day of Appreciation for Abortion Providers," celebrated last March 10. As people, including the young, have turned against abortion — a recent poll showed a pro-life majority — Katha Pollitt of the Nation declared: abortion providers could "use some love." If only they showed a little love to the most helpless among us.

Pro-abortion forces now dominate the White House, Congress, the courts, and the media. Indeed, this is the most extreme administration since Roe v. Wade — in contrast to such leading Democrats as Richard Gephardt, Al Gore, and Bill Clinton, in running for president Barack Obama didn't have to flip-flop away from any earlier pro-life votes or decisions. Yet abortion advocates remain on the defensive, angry that social disapproval leads so many medical professionals to refuse to provide and even to learn how to provide abortions.

So we see the demand not just for the right to abortion, including essentially up to the day of birth. We also see the demand to force medical students to learn and hospitals to provide abortion. And for pharmacies to provide abortifacients. Freedom of conscience is twisted to mean the denial of freedom of conscience. As a result, the Obama administration, despite the president's eloquent appeal to find "common ground," is rolling back the Bush administration rule protecting health care workers who refuse to participate in abortion. Sen. Patty Murray (D-Wash.) complained: "It threatens the health and well-being of women and the rights of patients across the country." In her view, apparently, women not only have a right to get an abortion, but to force doctors to provide an abortion.

Although federal institutions are firmly under the control of abortion advocates, many states are not. So the battle there continues, with state governments declaring the unborn to be persons and requiring that pregnant women be informed of fetal development and view ultrasounds of their babies. Opponents complain of "emotional blackmail," but surely women should be aware that it is a life they are ending before they choose to abort their unborn children. Thus, congressional abortion proponents, backed by the administration, are pushing the so-called "Freedom of Choice Act" to override state restrictions on abortion.

President Obama's policies are resolutely pro-abortion, but at least he does what many of his backers refuse to do: extend a "presumption of good faith" to those who oppose abortion and "honor the conscience of those who disagree with abortion." Indeed, admitted the president, "abortion is never a good thing." In contrast, many abortion activists are angered that anyone would make a moral judgment about abortion. A live baby. A dead baby. What's the difference, they seem to ask?

"At some level, the views of the two camps are irreconcilable," said President Obama in his speech at Notre Dame. Sad but true. Thus, the battle over abortion must continue. 

Peaceful battle, that is. Pro-life must mean pro-life. The murder of abortionists — there have been five since Roe — must be roundly condemned by anyone committed to the protection of life. There can be no moral justification for murder.

Instead, the battle must be one of persuasion. There progress is being made. And ultimately there the fight will be won.

We may have to find out how strong a shelter the Constitution will be under a plan being considered by President Obama for "a new legal system" that can indefinitely confine — possibly in American "Supermax prisons" — certain terrorism suspects at Guantanamo Bay, and not only there. They cannot be tried in our civilian courts because they have been tortured (preventing evidence against them being admitted) or because as NPR's Ari Shapiro puts it, they "would compromise sensitive sources and methods." Like, he adds, if they've been tortured, the assumption could be "they're dangerous because they've been tortured."

It's important to emphasize, if Obama prevails, that his "prolonged detention" — as he prefers to call "preventative detention" — will, as Salon's ever-vigilant constitutional analyst Glenn Greenwald tells us, also allow (beyond Guantanamo) "imprisonment not based on proven crimes or past violations of law, but of those deemed generally 'dangerous' by the Government for various reasons."

This is America, Mr. President?

And more "Supermax" prisons could be built to accommodate other "dangerous" terrorism suspects held, in cooperation with the U.S. in Egypt, Pakistan, Jordan, Indonesia — and why not here at home?

Ever since the Bush-Cheney administration's Attorney General John Ashcroft, American streets are considered part of the jihadists' "battleground," and Americans suspected of giving the enemy "material support" could be subjected to the Bush, and now Obama, versions of due process and imprisoned.

Ah, but President Obama assured us (Miami Herald, June 1) that "prolonged detention should not be the decision of any one man." He added (NPR, May 22): "If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight."

We continually see how that "oversight" operates under Obama. On May 2, the Senate passed the "Detainee Photographic Records Protection Act of 2009" that prevents disclosure of all photographs taken between Sept. 11, 2001, and Jan. 22, 2009, "relating to the treatment of individuals engaged, captured or detained after Sept. 11, 2001, by our armed forces outside the United States if the defense secretary and chairman of the Join Chiefs of Staff have determined they would endanger military personnel if released."

But Obama continually and forcefully speaks of his "unyielding belief" that his administration must operate "with an unprecedented level of openness."

Asks Glenn Greenwald (Salon, June 1): "What kind of a country passes a law that has no purpose other than to empower its leader to suppress evidence of the torture it inflicted on people?"

Answer: We are living in that very country.

The Obama administration apparently never tires of adjusting our legal system to cover up defilement of our laws and treaties by itself and the Bush-Cheney regime. Witness Attorney General Eric Holder, asserting state secrets to force the cancellation of court cases that could reveal what was done to victims of "extraordinary renditions" during the years of CIA secret prisons.

For another illustration of the dedicated "transparency" of the Obama presidency, New York Times reporter William Glaberson broke the story (June 6) that, "The Obama administration is considering a change in the law for the military commissions at the prison of Guantanamo Bay that would clear the way for detainees facing the death penalty to plead guilty without a full trial."

That's a neat way to ensure that any testimony about the torture of these defendants will be literally buried along with them. Denny LeBoeuf, an American Civil Liberties Union lawyer involved in death penalty cases at Guantanamo, asks: "Don't we have an interest as a society in a trial that examines the evidence and provides some reliable picture of what went on?"

The president doesn't agree.

Also, when he was a senator, Obama threatened to veto a bill that would absolve telecommunications companies of complicity in the NSA's extensive lawless monitoring of our e-mails and phone calls. But he then voted for the bill that was passed by Congress; and on June 4, Chief Judge Vaughn R. Walker of Northern California's Federal District Court reluctantly agreed with Obama's Justice Department to throw out dozens of lawsuits by "ordinary Americans" against AT&T, among other companies, which could have been hit with billions of dollars in damages.

Walker ruefully explained that these alleged constitutional violations of personal privacy by Bush and the telecommunications companies, championed by Obama as well, could not withstand the wishes of Congress. That, you see, is Obama-style congressional and judicial "oversight."

That sentiment is an affront to the rule of law, but, surprisingly, it doesn't seem to be reflected in Sotomayor's own record. She's never been a reliable vote for pro-choice litigants, and, despite her "wise Latina" empathy, she rejected 80 percent of the race discrimination claims that came before her as an appellate judge.

It's a shame to watch another confirmation battle cover the same tired old territory. Far more important issues are at stake. Why do we have federal courts in the first place? According to James Madison, they were meant to serve as "an impenetrable bulwark against every assumption of power in the legislative or executive."

When it comes to checking government power, Sotomayor's record is pretty poor. Civil libertarians can't be happy with her pro-police orientation: The former prosecutor has backed law enforcement in more than two-thirds of criminal cases that she's heard.

Her record on property rights is no more promising: In 2006's Didden v. Village of Port Chester, she ratified an eminent domain abuse that makes the infamous Kelo case look mild.

The landowner in Didden, who wanted to build a CVS, refused to pay off a politically connected developer, so the town gave his property to the developer to build a Walgreen's. Sotomayor's panel saw no evil in this case of state-sponsored extortion.

In the years to come, though, an "impenetrable bulwark" will be especially vital in checking presidential power. Obama's rhetoric is kinder and gentler than his predecessor's, but, like Bush, he claims to be the sole "decider" on warrantless wiretapping and executive secrecy. Sotomayor's record here is thin, but it gives us reasons for cautious optimism.

The Second Circuit, Sotomayor's home for the last 11 years, gets few national security cases. But what we can glean from three key cases she's participated in suggests she agrees with former Justice Sandra O'Connor that the War on Terror "is not a blank check for the president."

A Justice Sotomayor is unlikely to move in lockstep with the ACLU in this area. In Cassidy v. Chertoff (2006), she rejected a Fourth Amendment challenge to post-9/11 security searches conducted by a ferry operator acting at the behest of the Bush administration.

But in 2008's Doe v. Mukasey, she joined two colleagues to strike down provisions of the Patriot Act related to National Security Letters (NSL). NSLs allow the FBI to seize private customer information from ISPs and other businesses, and place the recipient under a "gag order," preventing disclosure of the demand.

Sotomayor signed onto an opinion holding that the gag order provisions violated the First Amendment, and that the government had the burden of proving that nondisclosure was necessary. "Under no circumstances," the panel wrote, "should the Judiciary become the handmaiden of the Executive."

Still before the Second Circuit is the case of Maher Arar, a Canadian citizen sent to Syria under the U.S. government's extraordinary rendition program and tortured there. At oral argument last December, Sotomayor questioned the administration's lawyer sharply: "So the minute the executive raises the specter of foreign policy, it is the government's position that that is a license to torture?"

Sotomayor is unlikely to participate in the final decision, but her line of questioning suggested skepticism toward broad claims of executive power. That record isn't much to go on, but it hints that Sotomayor won't be as pro-executive as recent GOP nominees.

As Pulitzer-Prize winning reporter Charlie Savage explains in his book Takeover, President Bush didn't pick Harriet Miers because he wanted to reward a friend; rather, Bush and Cheney saw her as someone who "could be counted on to embrace Bush's expansive view of presidential powers," their key criteria for judicial nominations. In that sense, in Roberts and Alito, the country got smarter versions of Harriet Miers.

For all her faults, it's unlikely that Sonia Sotomayor will be a pushover for any wartime president. Constitutionalists and civil libertarians should take comfort in the fact that it could have been worse.

Without casting aspersions on Judge Sotomayor, we may ask whether these are really the characteristics we want in a judge.

Clearly, a good judge must have "an understanding of how the world works and how ordinary people live." Judicial decision-making involves the application of abstract rules to concrete facts; it is impossible to render a proper judicial decision without understanding its practical effect on both the litigants and the wider community.

But what about compassion and empathy? Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another's emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel. What could be wrong with that?

Frederic Bastiat answered that question in his famous 1850 essay, "What is Seen and What is Not Seen." There the economist and member of the French parliament pointed out that law "produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them." Bastiat further noted that "[t]here is only one difference between a bad economist and a good one: The bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen."

This observation is just as true for judges as it is for economists. As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about -- that is, for those who are "seen."

One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.

One can empathize with innocent children born with birth defects. Such children and the adversity they face can be seen. One cannot empathize with as-yet-unborn children in rural communities who may not have access to pediatricians if a judicial decision based on compassion raises the cost of medical malpractice insurance. These children are unseen.

One can feel for unfortunate homeowners about to lose their homes through foreclosure. One cannot feel for unknown individuals who may not be able to afford a home in the future if the compassionate and empathetic protection of current homeowners increases the cost of a mortgage.

In general, one can feel compassion for and empathize with individual plaintiffs in a lawsuit who are facing hardship. They are visible. One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.

Calling on judges to be compassionate or empathetic is in effect to ask them to undo this balance and favor the seen over the unseen. Paraphrasing Bastiat, if the difference between the bad judge and the good judge is that the bad judge focuses on the visible effects of his or her decisions while the good judge takes into account both the effects that can be seen and those that are unseen, then the compassionate, empathetic judge is very likely to be a bad judge. For this reason, let us hope that Judge Sotomayor proves to be a disappointment to her sponsor.

That memo urged law enforcers nationwide to monitor the allegedly gathering danger from Rightist radicals, including pro-lifers, immigration opponents, and those who reject "federal authority in favor of state and local authority."

Was this a sinister conspiracy by an administration full of Chard-sipping arugula eaters determined to spy on Red-State patriots? That's quite unlikely: The memo was commissioned during the Bush administration, as was a similar memo focusing on "Leftwing Extremists."

But conservatives were nonetheless right to be concerned. The DHS memo suggests that bureaucratic "mission creep" can be as dangerous to liberty as a deliberate campaign of repression.

America's experience with domestic spying in the pre-Watergate period makes that clear. Presidents Johnson and Nixon believed antiwar groups were being funded by the Soviet Union, and pressured the CIA, the FBI, and the military to establish the link.

Federal intelligence operatives assigned to domestic spying programs like COINTELPRO and Operation CHAOS found little evidence of communist subversion.

Yet it's the rare bureaucracy that closes up shop for lack of anything useful to do: instead, COINTELPRO and CHAOS agents began keeping files on law-abiding citizens who disagreed with their government.

The U.S. military got into the act as well. The Army kept files on over 100,000 citizens, including such dangerous national security threats as folk singers Arlo Guthrie and Joan Baez.

Senate Judiciary Committee hearings on the program revealed that "comments about the financial affairs, sex lives, and psychiatric histories of persons unaffiliated with the armed forces appear throughout the various records systems."

Given the history, it's not entirely paranoid for conservatives to wonder if federal observers might lurk among the crowds at future tea parties.

A more recent example of mission creep's dangers can be seen in the Pentagon's TALON program. TALON, short for Threat and Local Observation Notice, encouraged military personnel and civilian DoD employees to file reports on suspicious activities, which could then be sent on to law enforcement. As before, the military quickly began to monitor peaceful protests.

In March 2005, the Army's 902nd Military Intelligence Group warned the Akron, Ohio, police department about an assembly of middle-aged peace activists organized by local Quakers.

Responding to criticism of the Army's Quaker-watching excursion, a Pentagon spokesman declared, "The fact that the marches proceeded peacefully is irrelevant to leveling criticisms against the Army in this instance. Hindsight is always 20/20."

Public ridicule led to TALON's end in 2007. But other post-9/11 surveillance efforts continue apace. Yale law professor Jack Balkin warns that fear of terrorism has contributed to the growth of what he calls "the National Surveillance State," a regime in which the federal government uses its expanded information gathering capabilities to monitor the citizenry and ward off potential threats.

That in itself presents a threat, Balkin writes, because "the more powerful government becomes in knowing what its citizens are doing, the easier it becomes to control people's behavior."

In the Vietnam era, keeping tabs on dissenters was a low-tech affair. FBI and CIA agents depended on paper files and index cards; they needed to physically open letters and individually review telegrams. Today, with modern processing power and data-mining technology, the possibilities for surveillance are staggering. And so is the potential for abuse.

In March, Rod Beckstrom, the DHS official in charge of cybersecurity, resigned, citing concerns about an information security plan that envisioned a lead role for the NSA, giving the agency a dangerous level of access to civilians' web searches and email.

And the week after the "Rightwing Extremism" memo was revealed, Justice Department officials admitted that the NSA had been engaged in illegal "overcollection" of Americans' domestic communications.

Though some bloggers and radio hosts may have overreacted to the DHS memo, it was heartening to see conservatives finally show concern over possible abuses by the national security bureaucracy.

But their level of outrage shouldn't depend on whose ox is getting gored — constitutional privacy shouldn't be a Red Team/Blue Team issue. As the National Surveillance State grows, the need for new checks and balances has never been greater.

The response to the Amethyst Initiative was predictable: Advocates of restricted access and zero tolerance decried the statement for not recognizing that the MLDA21 saves lives by preventing traffic deaths among 18- to 20-year-olds. The president of Mothers Against Drunk Driving, for example, accused the university heads of "not doing their homework" on the relationship between the drinking age and traffic fatalities.

In fact, the advocates of the MLDA21 are the ones who need a refresher course. In our recently completed research, we show that the MLDA21 has little or no life-saving effect.

To understand why, a bit of history is useful.

When the U.S. repealed the prohibition of alcohol in 1933, states were free to legalize, regulate or prohibit access to it as they saw fit. Most legalized but regulated it. In particular, 32 states adopted an MLDA of 21, while 16 chose an MLDA between 18 and 20. With few exceptions, these disparities persisted through the late 1960s.

Between 1970 and 1976, 30 states lowered their MLDA from 21 to 18. These changes coincided with other national efforts to enfranchise youth, exemplified by the 26th Amendment, which granted those 18+ the right to vote.

In 1984, however, Congress passed the Federal Underage Drinking Act (FUDAA), which withholds transportation funding from states that do not have an MLDA21. The justification given for the act was that higher MLDAs would result in fewer traffic fatalities.

By the end of 1988, after passage of the FUDAA, all states adopted an MLDA21. Several states had adopted an MLDA21 before the FUDAA, but the other states were less eager to change. Several passed MLDA21 legislation but set it up for repeal if the FUDAA were held unconstitutional. Others enacted "sunset provisions" in case federal sanctions expired. But when the Supreme Court upheld the FUDAA, states faced a strong incentive to maintain an MLDA21.

Our research compares traffic fatality rates in states before and after they changed their MLDA from 18 to 21. In contrast to all earlier work, however, we examined separately the impact in states that adopted an MLDA21 on their own and those that were coerced by the FUDAA.

The results are striking. Virtually all the life-saving impact of the MLDA21 comes from the few early-adopting states, not from the larger number that resulted from federal pressure. Further, any life-saving effect in those states that first raised the drinking age was only temporary, occurring largely in the first year or two after switching to the MLDA21.

Our results thus challenge both the value of the MLDA21 and the value of coercive federalism. While we find limited evidence that the MLDA21 saves lives when states adopted it of their own volition, we find no evidence it saves lives when the federal government compels this policy.

This makes sense if a higher MLDA works only when state governments can set a drinking age that responds to local attitudes and concerns — and when states are energized to enforce such laws. A policy imposed from on high, especially one that is readily evaded and opposed by a large fraction of the citizenry, is virtually guaranteed to fail.

The major implication of these results is that the drinking age does not produce its main claimed benefit. Moreover, it plausibly generates side effects, like binge drinking and disrespect for the law — the very behavior that events planned for this month's alcohol awareness theme are designed to deter.

If we are to truly tackle the dangers of youth drinking, we must admit that the National-21 experiment has failed. We welcome the surgeon general's recent call to action to reduce underage drinking, to the extent that it provides tips for families and educators to curb the dangers of alcohol abuse.

The federal government has taken alcohol policy out of these parties' hands, however, by imposing an ineffective policy on everyone. An awareness campaign can only do so much when the most significant impediment to change is not on college campuses but in Washington.

Have you heard of Santiago Meza Lopez? They call him "The Soupmaker." In January he confessed to Mexican authorities that he had dissolved over 300 dead human bodies in acid. There's a lot of money to be made in America's black market for drugs and Mexican suppliers are willing to kill a lot of people to control those markets and capture the gains. Conservative estimates put the death toll of the war between rival Mexican gangs at over 5,000 in the last year alone. When you kill so many people it's hard to know what to do with all of the rotting bodies. One way to handle the problem is to call in the Soupmaker. Six hundred American dollars per corpse.

Did you know that the United States of America, the Land of the Free, puts a larger portion of its population behind bars than any country on earth? Thanks in large part to the War on Drugs, Americans lock more of their own in cages than do the thuggish Russians or those "Islamofascist" Saudis. As it happens, American drug prohibition and sentencing policies hit poor black men the hardest, devastating already disadvantaged black families and communities—a tragic, mocking contrast to the achievement of Obama's election. Militarized police departments across the nation month after month kick down the wrong doors, terrify innocent families, shoot lawful citizens, and often kill the family dog.

So why is Obama laughing? To be fair, in 2004, Obama called the War on Drugs "a complete failure." And he's much saner about pot than most politicians. He has in the past called for decriminalization of marijuana and his Justice Department has promised the DEA will ease up on medical marijuana dispensaries that comply with state law (though the Feds just cracked down on a cannabis coop in San Francisco). Sure, Obama's got a lot on his hands these days. But his dismissive snicker reflects a sadly common nonchalance toward America's disastrous experiment in prohibition. This is a "war" that has not only failed utterly to shut down the market for drugs, but has, on the way, perpetuated the shameful American legacy of racial stratification, eroded the rights and safety of American citizens, and fomented a civil war on our southern border in which knock-on markets for assassins and corpse liquidation specialists flourish. To call this "complete failure" is to put on a happy face.

Barack Obama inhaled. "The point was to inhale," he once smartly observed. But Obama also knows how to get elected president. Sadly, at this point in history, it remains a political liability to have become intoxicated on certain safe but illegal and stigmatized substances, like marijuana. Obama has said his past drug use was a regrettable youthful indiscretion, and he might even believe it. But why regret it? He managed to become president, didn't he? It's easy to laugh off the folks who jammed the White House switchboard when we imagine them as pranking "stoners," and this picture of "the online audience" concedes the harmlessness of marijuana users while refusing to take them seriously. But why not imagine them as regular folks motivated by a love of liberty, justice, peace, and, sure, maybe a taste for grass? Why not imagine them as successful professionals, unlike Barack Obama only in political ambition?

Marijuana is neither evil nor dangerous. Scientists have proven its medical uses. It has spared millions from anguish. But the casual pleasure marijuana has delivered is orders of magnitude greater than the pain it has assuaged, and pleasure matters too. That's probably why Barack Obama smoked up the second and third times: because he liked it. That's why tens of millions of Americans regularly take a puff, despite the misconceived laws meant to save us from our own wickedness.

The Atlantic Monthly's Andrew Sullivan has been documenting on his blog the stories of typical, productive Americans—kids' football coaches, secretaries of the PTA—who smoke marijuana because they like to smoke marijuana, but who understandably fear emerging fully from the "cannabis closet." This is a profoundly necessary idea. If we're to begin to roll back our stupid and deadly drug war, the stigma of responsible drug use has got to end, and marijuana is the best place to start. The super-savvy Barack Obama managed to turn a buck by coming out of the cannabis (and cocaine) closet in a bestselling memoir. That's progress. But his admission came with the politicians' caveat of regret. We'll make real progress when solid, upstanding folk come out of the cannabis closet, heads held high.

So here we go. My name is Will Wilkinson. I smoke marijuana, and I like it.

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On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were "decriminalized," not "legalized." Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense.

While other states in the European Union have developed various forms of de facto decriminalization — whereby substances perceived to be less serious (such as cannabis) rarely lead to criminal prosecution — Portugal remains the only EU member state with a law explicitly declaring drugs to be "decriminalized." Because more than seven years have now elapsed since enactment of Portugal's decriminalization system, there are ample data enabling its effects to be assessed.

Notably, decriminalization has become increasingly popular in Portugal since 2001. Except for some far-right politicians, very few domestic political factions are agitating for a repeal of the 2001 law. And while there is a widespread perception that bureaucratic changes need to be made to Portugal's decriminalization framework to make it more efficient and effective, there is no real debate about whether drugs should once again be criminalized. More significantly, none of the nightmare scenarios touted by preenactment decriminalization opponents — from rampant increases in drug usage among the young to the transformation of Lisbon into a haven for "drug tourists" — has occurred.

The political consensus in favor of decriminalization is unsurprising in light of the relevant empirical data. Those data indicate that decriminalization has had no adverse effect on drug usage rates in Portugal, which, in numerous categories, are now among the lowest in the EU, particularly when compared with states with stringent criminalization regimes. Although postdecriminalization usage rates have remained roughly the same or even decreased slightly when compared with other EU states, drug-related pathologies — such as sexually transmitted diseases and deaths due to drug usage — have decreased dramatically. Drug policy experts attribute those positive trends to the enhanced ability of the Portuguese government to offer treatment programs to its citizens — enhancements made possible, for numerous reasons, by decriminalization.

This report will begin with an examination of the Portuguese decriminalization framework as set forth in law and in terms of how it functions in practice. Also examined is the political climate in Portugal both pre- and postdecriminalization with regard to drug policy, and the impetus that led that nation to adopt decriminalization.

The report then assesses Portuguese drug policy in the context of the EU's approach to drugs. The varying legal frameworks, as well as the overall trend toward liberalization, are examined to enable a meaningful comparative assessment between Portuguese data and data from other EU states.

The report also sets forth the data concerning drug-related trends in Portugal both pre- and postdecriminalization. The effects of decriminalization in Portugal are examined both in absolute terms and in comparisons with other states that continue to criminalize drugs, particularly within the EU.

The data show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success. Within this success lie self-evident lessons that should guide drug policy debates around the world.

Bush claimed to respect federalism, but his Justice Department repeatedly brought the heavy hand of the law down on desperately sick people who, with the approval of their state governments, used marijuana to ease their pain.

Calling off the raids was the right thing to do, and—for a liberal president vulnerable to the charge of being "soft on drugs"—a politically courageous move ("the Audacity of Dope"?).

Thousands of Americans use marijuana to treat glaucoma, cancer, and other diseases. The federal government has no business coming between them and their doctors. Cancer survivor Richard Brookhiser made that clear when he testified before Congress in 2006.

Brookhiser, a staid senior editor at National Review, hardly resembles the stereotypical pot smoker. But in 1992, he contracted a particularly virulent form of cancer and found that only marijuana would allow him to hold down enough food to survive the treatment.

"God forbid that anyone in this room should ever need chemotherapy," Brookhiser testified, but if you do, "Let me assure you that whatever you think now, or however you vote, if that moment comes to you, you will turn to marijuana. Extend that liberty to your fellow citizens."

In recent years, 13 states have done just that. After California passed the Compassionate Use Act in 1996, the Clinton administration commissioned a comprehensive study on medical marijuana.

That report came out 10 years ago this month, and it indicated that the drug had shown promise as a treatment "for symptoms such as pain relief, control of nausea, and vomiting." The scandal-scarred Clinton worried that his opponents might portray his administration as a klatch of licentious Baby Boomers, so he wasn't entirely happy with the report's result. His administration sued medical marijuana dispensaries, and tried to revoke the licenses of doctors who prescribed the drug.

President Bush was more aggressive still. In the case of Gonzales v. Raich, the Bush Justice Department insisted that, regardless of what California's voters had decided, it had every right to deny use of the drug to a woman with an inoperable brain tumor.

In the process, the Bush team undermined the core constitutional principle that federal power is limited. As Justice Clarence Thomas wrote in his Raich dissent, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

Holder made clear last Wednesday that the Obama administration won't pursue cases like Raich. That's good news, but the new policy doesn't go nearly far enough. There's no good reason to wage war against people who use marijuana as medicine, but neither is there any reason to prosecute recreational users. It's a disgrace that, in the 21st century, in a free country, we continue to send people to prison for using or selling the drug.

Survey data tell us that some 40 percent of Americans have tried pot. Any policy that suggests that 100 million Americans are criminals needs rethinking. Among them are a host of political elites who support the drug war, at least tacitly: Bill Clinton, Al Gore, Newt Gingrich, Sarah Palin, and Barack Obama himself.

Obama's no legalizer. But his early moves—including the appointment of a moderate as drug czar—suggest that he's much less hawkish than his predecessors. There are even some signs of new thinking on Capitol Hill.

Last year Reps. Barney Frank (D-MA) and Ron Paul (R-TX) cosponsored a bill to decriminalize possession of marijuana. Senator Jim Webb (D-VA) recently took to the pages of the Washington Post to lament the fact that the United States locks up more people per capita than any other country in the world—many of them nonviolent drug offenders.

We're still far away from calling an end to our foolish and destructive War on Drugs, but the debate finally seems to be headed in the right direction. The prospects for drug policy reform look better than they have for decades.

Shouldn't Phelps be charged? Along with President Obama and his two predecessors, all of whom, it seems, used illegal drugs? If not, perhaps it is time to have a serious debate about the drug laws.

Of course, Michael Phelps immediately apologized for his poor judgment. Attention turned to his sponsors, since their contracts include the usual moral clauses, which protect their investment in celebrities who behave foolishly, if not actually immorally. Happily for Phelps's bank account, some of his big-money backers, including Speedo, Hilton, and Omega, accepted his apology. Subway and Visa haven't been talking, but don't look like they are going to jump. Kellogg's, so far in the minority, announced it would drop Phelps.

But if marijuana use is so horrid as to warrant criminalization, why are we wasting time discussing whether Phelps will be able to keep his endorsement deals? Shouldn't he be prosecuted—just like millions of other Americans, whose lives have been ruined by criminal convictions for smoking pot?

In 2007, 872,721 Americans were arrested for marijuana violations, 775,138 of them for possession. Some number of the latter undoubtedly were caught growing or selling and were charged with lesser offenses, but, in any case, hundreds of thousands of Americans ended up in jail for doing precisely what Michael Phelps did: lighting up. Roughly three-quarters of those arrested for marijuana offenses were, like Phelps, under 30. With most of their lives ahead of them, they face the greatest harm from prosecution under the drug laws.

So why shouldn't Phelps go to jail?

To ask the question is to answer it. While smoking pot may be a stupid thing to do for many reasons—risking adverse health effects, endangering endorsements, undermining Phelps's status as a celebrity role model—he hurt no one but himself. He could have been photographed while drunk and stumbling out of a party, and it would have been no different. Bad press and angry sponsors would have forced an abject apology, and everyone would have moved on. Just like with his marijuana hit.

Of course, advocates of prohibition argue that illicit drugs are different. And so they are—mostly because their use is illegal, a situation that creates the most serious problems usually associated with drug use.

The arguments are old but clear. Whatever the law might say, the people have voted with their lungs: 95 million Americans over the age of 21 have smoked pot, 20 million have smoked in the last year, and 11 million use the drug regularly. It's hard to believe that all of them, almost one-third of the U.S. population, are criminals who deserve jail time.

Moreover, the violence associated with drugs is principally from prohibition rather than use. Drunks are far more likely to commit (and be victims of) violent crimes than are users of marijuana. Prohibition-era Chicago offered a dramatic lesson in the impact of banning a widely used drug. That city's violent era is being played out on a larger scale in Colombia and Mexico, where urban and rural communities have been overwhelmed with drug-gang violence.

The health arguments remain disputed, but the basic question is whether we live in a free society in which people can choose to engage in risky behavior. Cigarette smokers, hang gliders, and rock climbers all take risks that many others view as unacceptable. That's no reason for arresting them.

And it's pretty hard to argue that marijuana use will prevent Phelps from being productive. Most all of us probably remember pothead classmates who ended up wildly successful in their chosen careers. Will some people use to excess? Yes, just as some people drink too much, gamble too much, spend too much, and act irresponsibly in a multitude of other ways. Criminal law is not the answer.

Is Michael Phelps likely to go to jail? No, and for good reason. But for the same reason, the rest of us should not be arrested for smoking pot, either. Whether marijuana use is good or bad is not the issue. Short of engaging in behavior that directly threatens others, people should be left alone. That's what a society grounded in individual liberty is—or at least should be—all about.

Obama needs to recognize that establishing such courts is a recipe for both bad law and bad policy. Along with numerous compelling legal arguments, any court outside of existing civilian or military systems only serves to exaggerate the power of extremist terrorists and validate their delusions of grandeur.

Proponents of national security courts often point to the Foreign Intelligence Surveillance Court (FISC), which reviews requests for surveillance warrants against suspected foreign intelligence agents. The FISC uses judges with high-level security clearances that, as some proponents argue, could be used as the backbone for a new court system to try the detainees. The trials would be largely closed to the public and would not use a jury.

Using closed courts to try suspected terrorists plays the propaganda game in exactly the way our enemies want, and cheapens American justice on the world stage. Terrorism and insurgency constitute violence with a message. To effectively counter terrorists, we must provide a message of our own that denies a propaganda victory to their cause. Meting sound and irreproachable justice is an important way to do that.

While American forces are constantly improving their counterterrorism and counterinsurgency methods, we remain ineffective in countering enemy propaganda in the field of "lawfare." Lawfare is the use of international law to attack nation-states in courts of law and public opinion. The Taliban do this every time they hide behind civilians and then denounce Coalition forces for the inevitable and regrettable casualties. Guantanamo represents a self-inflicted lawfare wound against the United States, where the limbo between domestic criminal law and the law of war erodes at America's values and international standing.

While serving as a Special Forces officer in Afghanistan, I took into account the Taliban's propaganda purposes when planning operations. They didn't need to kill us to win a small victory. They needed to shoot at us and run away to tell the tale, where fishing stories of exaggerated casualties could encourage ever larger groups of radicalized fighters to attack the Afghans and their American allies.

Khalid Sheikh Mohammed had lawfare in mind when he and several co-defendants tried to plead guilty to the Military Commissions and ask for the death penalty. This constituted one final martyrdom mission where he could complain to the world about his treatment before a kangaroo court. We must not give him his final moment of glory.

Instead, transfer Khalid Sheikh Mohammed into an existing court along with the other detainees we have enough evidence to try. Courts-martial are the envy of the world's military justice systems. Better yet, use the federal court system; nothing destroys Al Qaeda's message better than a jury trial. A co-equal branch of government, represented by a life-tenured judge not beholden to the president, using a jury of average American citizens, weighing the evidence and coming to a guilty verdict--that is effective counter-lawfare.

Federal courts are fully able to handle such cases. They have successfully prosecuted over a hundred terrorism cases since 9/11, attaining over a 90 percent conviction rate. Using the Classified Information Procedures Act (CIPA), federal courts can exclude classified information or offer it in a redacted or unclassified version to protect government interests. Federal courts have proven flexible and successful with CIPA, special detention rules, jury security measures, and exceptions to domestic law that mean we won't have to read Miranda rights to future detainees.

The Founders wrote the Bill of Rights after a violent insurgency brought on by government oppression, and the principles contained therein are no weaker while countering today's terrorists. Using national security courts to try the detainees in Guantanamo opens the door to closed and classified trials of domestic terror suspects. This degradation of essential liberties is unwise and avoids the social function of trials: to show the world--not just a judge in his chambers--that the defendant is guilty and deserves our condemnation.

In the current war of images, Al Qaeda struck a terrible blow with airplanes smacking into the sides of skyscrapers. Since that awful moment, America has a mixed record in the battle of opposing pictures and video clips, with Abu Ghraib and Guantanamo effectively offsetting the purple fingers of voters in new democracies. Let the next image--Khalid Sheikh Mohammed marching off to life imprisonment with a federal marshal at his side--follow an open trial with declassified versions of the necessary evidence, not a hearing behind closed doors.