Sen. Thune's weekly conference call starts in an hour, which to me says there's no better time than to finally write up an exchange I had with him on LAST week's conference call. (Yes, I know, I get behind on non-deadline stuff.)

As part of his response to President Obama's State of the Union, Thune emphasized what's become a resurgent Republican talking point since Scott Brown's Senate victory — the giving of legal rights to terrorists such as the underwear bomber.

No one else was asking questions on the call, so I tried to draw Thune's reasoning out a little more on the issue: What, I asked, makes a foreigner who commits a crime in the name of Allah different from one who commits it for other reasons.

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For example, what about, say, a member of the Italian Mafia who comes to the United States and guns down down a dozen people in a retaliatory killing. That person would be tried in criminal court without a second thought. But in a case like that of Malik Nadal Hasan, the Fort Hood shooter, if he had not been a member of the military and thus subject automatically to military justice there would be an outcry over conducting a trial in regular order. (This is speculative, but I don't think it's going out on a limb.) In both cases you have a foreigner commiting a heinous crime on American soil; why did Thune believe he should be treated differently?

(Note: This type of question can cause some confusion — in asking it I'm not *arguing* with Thune because I disagree with him, I'm rhetorically adopting a position to challenge him and draw out an in depth response. If I want someone to give a robust defense of a position, the best way to do that is to make them defend the position.)

Thune said the difference is a state of war between Al Qaeda and the United States.

"Organizations like Al Qaeda have declared war on Americans and want to kill and destroy Americans," Thune said. "I think we have to treat them as unlawful enemy combatants. You treat unlawful enemy combatants very differently than you do common criminals."

Thune made three arguments — one philosophical, and two practical — against giving accused terrorists civilian trials.

The philosophical objection was that terrorists are a priori different from criminals, and should be treated differently.

"These are terrorists," he said. "These are people who are part of networks that are intent on killing Americans. They've declared war on the United States. That's a very different standard than dealing with common criminals."

Second, Thune argued that civilian trials will give accused terrorists the opportunity to make their case in public and become martyrs.

"These are terrorists who wanted to use the American court system to have show trials, and we're accomodating them and doing that," he said.

(As a point of order, I think what the terrorists WANT to do was kill Americans. Since most of these attacks are suicide attacks, getting a show trial is simply plan B.)

Finally, Thune said the American court system gives terrorists too many rights and protections and gets in the way of interrogations.

"If you don't interrogate them when you capture them, you're not going to get the kind of actionable intelligence that would prevent future terrorist attacks," Thune said. "That's what happened with Abdulmutallab."

(I'm not afraid to admit I copied the spelling of that name off Wikipedia.)

The White House has been pushing back against these critiques in the last day, claiming that reading suspects their Miranda rights is standard policy, even under George W. Bush (the "shoe bomber," Richard Reid, was Mirandized repeatedly) and that Abdulmutallab began talking again in recent weeks after family members encouraged him to cooperate.

Also, a point of clarity on Miranda rights: police can interrogate someone without reading them their rights. Where the Miranda rights come in is that you can't count on using information gained from an interrogation in criminal court unless the suspect was read their Miranda rights. If the police don't Mirandize you, it's not a get-out-of-jail-free card. They just can't use anything you said before they Miranized you in court.

These two arguments are, by virtue of being empirical arguments, theoretically verifiable. I don't know enough about the issue to say authoritatively whether the show-trial and Miranda arguments are valid or not. The real interesting argument is the philosophical argument.

Under the old laws of war, written when wars occurred principally between states, there are rules to deal with enemy combattants, such as the Geneva Conventions. There are also rules for dealing with people who violate the laws of war, and I think few people would argue that terrorists don't violate the laws of war — they're nonprivileged combattants or unlawful combattants.

That much is clear (although there's no international treaty defining the term "unlawful combattant.") What makes terrorist cases curious is the question of whether a state of war exists.

Under those same traditional laws of war, a "war" is something that happens between states. Once that happens, this special set of rules kicks in. But the question of a "war" with a nonstate actor like Al Qaeda is not yet settled. Can any nonstate actor declare war? Can the United States be at war without formally declaring war? (Presumably the answer to that one is yes: I suspect there's a nearly universally acknowledged exception for authorized peacekeeping actions, for which Afghanistan would qualify. Not sure about Iraq, and things get really murky when you move away from the two theaters in which the United States is engaged in conventional military action.)

I'm not an expert in international law. But the arguments for both sides here about what makes members of a nonstate terrorist group unlawful enemy combattants are exceptionally interesting.

As a footnote, I asked Thune about terrorists who are also American citizens. Thune said that's a harder call but his gut would say they forfeit their constitutional protections.

"Obviously if you're a citizen of the United States, it gives you a status (compared to) someone who is an attacker from another country," Thune said. "(But) anytime someone joins an organization like Al Qaeda — becomes a member of a terrorist network whose sole purpose is to kill and destroy Americans — they should be covered by the law of war."