I've got a short op-ed about returning American jihadis in the Room for Debate section of today's New York Times site. Here's what it says:
Americans returning home from a foreign jihad pose a very real danger to this country, now and for years to come, as the Charlie Hebdo attacks reveal. One of the attackers, Cherif Kouachi, had been caught and convicted of trying to join the war in Iraq, and his brother may have trained with Al Qaeda in Yemen. Despite these warning signs, French authorities lacked the resources to keep watching the brothers.
Our law is even less suited to the threat than France's. We have not made it a federal crime for Americans to join the fight against a U.S. ally. And, like the French, we cannot afford to put 24-hour tails on every returnee. We could afford to conduct electronic surveillance of the returnees, but that would require specific evidence of a new plot here at home. And new plots, the Kouachis showed, are often easy to hide from the authorities.Until we can distinguish the reformed from the continuing threats, the penalty for this new crime should at a minimum include years of probation and electronic surveillance.
These are gaps we should fix. It should be unlawful to join a foreign war against the United States or its allies. That doesn't mean that every returnee should go to jail. I like to think that many will find themselves disillusioned and repelled by the reality of life under Islamist rule. Some will become valuable sources of intelligence on their former comrades, others will simply want to live down a profound mistake.
But until we can distinguish the reformed from the continuing threats, the penalty for this new crime should at a minimum include years of probation and electronic surveillance. Under U.S. law, the government hasfar greater authority to search parolees than ordinary citizens, especially when the purpose of the surveillance is to ensure that the probationer is fully rehabilitated. So even if all prosecutions under the new law were to end in suspended sentences and long paroles, we would greatly cut the risk that the most dangerous of the returnees will evade government monitoring the way the Kouachis did.