Protection principle provides framework for handling terror cases?

The arrest of Times Square bombing suspect Faisal Shahzad raises anew the question of how and where to try accused terrorists.

Shahzad is a naturalized American citizen, and it seems a virtual certainty that he will be tried in a 'civilian' federal court. This seems particularly likely in light of the Obama administration's promise late last year to try alleged 9/11 mastermind (and Kuwaiti native) Khalid Sheikh Mohammed in the Southern District of New York -- although the government has retreated from this position somewhat since. (Recently, Attorney General Holder said that there has been no final decision about where Khalid Sheikh Mohammed's trial will take place or even whether it will be held in a civilian court. Sources: Jake Tapper, ABC News, mystateline.com.)

But, sadly, as Shahzad's case reminds us, there will be other terror attempts. And, if Shahzad is an American citizen, Umar Farouk Abdulmutallab (the "Underwear Bomber") was not.

An article by Philip Hamburger, the Maurice & Hilda Friedman Professor of Law at Columbia Law School, Beyond Protection, 109 Colum. L. Rev. 1823 (Dec. 2009), looks to the principle of "protection" for a way to explain why it may well be appropriate to handle Shazad and Abdulmutallab differently. As the summary of the article explains, "Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no obligation to obey American law; moreover, not having protection, he had no rights under such law." In other words, the government has different obligations to citizens who engage in terrorism as opposed to foreigners who try to commit terrorist acts in this country. Explains Hamburger, "The principle thereby permits the nation to defend itself without having to compromise civil liberties." (109 Colum. L. Rev. at 1833.)

I do not pretend to have read the article. I was attracted to it, though, by an article about Professor Hamburger's article appearing in the current issue of the Wilson Quarterly.