By Jay Sekulow

As an attorney who’s spent more than a dozen years protecting the right of both America and Israel to wage war against international terrorism, including appearances before the Office of the Prosecutor of the International Criminal Court at the Hague, I’m stumped.

My American Center for Law & Justices colleagues at our offices all over the world from Jerusalem, to France, to Washington, D.C. --who are even at this moment at an anti-terrorism conference in Israel -- are puzzled.

Here’s our question for the Obama administration: are we at war or not?

On the one hand, the administration has steadfastly defended its drone war – which rains sudden death on enemy combatants, American and non-American alike – as a necessary instrument in an ongoing military conflict against Al Qaeda.

Enemy combatants should be interrogated relentlessly, not given Miranda warnings.

In making this argument, the administration is extending Bush administration legal policy that was first implemented immediately after September 11, when the Congress passed the Authorization for Use of Military Force against those organizations responsible for the worst enemy attack on foreign soil in our nation’s history. In short, under international law, we have declared war.

But then the administration captured Abu Ghaith, a Kuwaiti member of Al Qaeda -- a member of Usama bin Laden’s family, no less -- and brought him to the United States for a civilian trial in a Manhattan courtroom one mile from Ground Zero. In fact, he’s already appeared in that courtroom to plead not guilty to charges of conspiracy to kill Americans.

How does this make any sense? How is this consistent with any principled approach to fighting our War on Terror?

Senators Lindsey Graham and Kelly Ayotte – and a number of other lawmakers – have rightly raised serious objections to Ghaith’s civilian detention and civilian trial.

Enemy combatants shouldn’t be tried in civilian courtrooms in the middle of a densely populated city – creating a much softer target for a spectacular and symbolic terrorist attack than a fortified military base like Guantanamo Bay.

Moreover, if we’re going to make the legal argument at home and abroad that we’re at war, why play right into our critics’ hands by suddenly and arbitrarily treating our war like an episode of “CSI: New York”?

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