The Roman Emperor Augustus joked that it’s better to be Herod’s pig than his son. Herod did not eat pigs, and they were safe, but he murdered his sons. A judge who cleared the Kurdish PKK off Bush’s terrorist groups list seems to forget the aphorism.

The PKK is credibly implicated in terrorism, weapons and drug trade, and other high crimes. Virtually every civilized country recognizes the PKK as criminal, terrorist group. That doesn’t imply the PKK is evil; perhaps its ends justify the means.

Police detain people who are not yet sentenced by a court and might prove innocent. The judicial system has long shifted the burden of proof in wrongful arrest cases onto plaintiffs who must show the police’s bad intent. It is thus established that law enforcement agencies can act on suspicion to prevent clear and present danger. They are professionals, and their unbiased judgment about clear and present is presumed sound.

The perceived danger is a function of the crime’s severity. Murderers may be arrested on the less suspicion than horse race cheats. Suspected terrorists may be arrested on the slightest evidence. Freezing an organization’s assets is akin to arresting it, a preventive measure. Suspected terrorist activity justifies freezing assets.

Foreign terrorist activity can rarely be proven in civil courts. The difference between war and peacetime, battlefield and domestic justice, has long been recognized; thus military tribunals operate differently from civil courts. The US once abandoned extraditing Bin Laden because no firm evidence existed to convict him. How could anyone prove, according to the high standards of US due process, that the PKK is involved in terrorism? The key people are abroad; the witnesses are dead or bound by the fear of reprisal; written evidence does not exist, and legal wiretaps abroad are impossible; the terrorist organization may not even violate US security. It takes the FBI years to bring US gangs to trial. The gangsters are the US citizens, live and move in America, are open to surveillance and wiretaps. They commit crimes on American soil, not in remote corners of the world. They are driven by greed, not ideology; criminals, not soldiers. Convicting a terrorist organization is qualitatively more difficult than convincing a gang, and there are thousands of terrorist organizations. Prosecuting them in civil courts is not an option; leaving them free to act is no option, either.

Wartime societies face similar questions about enemy military personnel and civilians. Many in the military do not bear weapons, but differentiating them from active shooters is impractical. Killing enemies is therefore accepted as right unless proven clearly wrongful. Affiliation with hostile groups reverses the standard of justice to “guilty until proven innocent.” It is up to the PKK to prove its non-involvement in terrorism.

The current approach of presuming terrorist suspects innocent condemns the American people and American interests worldwide. Terrorists will act against the US and its allies with impunity. The judicial system finds the suffering of innocent but inconspicuous people more acceptable than freezing the assets of terrorist suspects who enjoy publicity.

There is a war going on, and collateral damage is inevitable. Organizations wrongly suspected of terrorism suffer less than other collateral victims, such as dead Iraqi civilians. The US government had no malicious intent toward the Kurds when it listed the PKK among terrorist organizations.

In legalistic states, courts continuously expand their authority. The PKK decision is a worrying example of the US courts asserting their authority over the prosecution of war. Theoretically, courts can even stop military campaigns, especially since the Iraqi war was based on the doctored evidence. The US courts have already asserted their jurisdiction over foreign matters, such as in the case of the Panamian ruler Noriega. Sitting in his peaceful Los Angeles office, one judge decides on military matters and in effect manages the war.

The PKK judgment opens the way for Hamas and PIJ claims.