The following, with which I agree wholeheartedly, is by Patrick Radden Keefe. Keefe, a program officer and fellow at The Century Foundation and author of “Chatter: Dispatches from the Secret World of Global Eavesdropping.”
One much-reviled political tactic famously employed by President George W. Bush and his surrogates was to play offense against critics by implying that the very act of questioning administration policy was somehow unpatriotic (http://www.slate.com/id/2106109/). I never thought I’d say this, but as the Republican hysteria over the prospect of trying terrorists in federal courts intensifies and weak-kneed Democrats show real signs of folding on what history may judge to be a make-or-break issue for the Obama administration, the president and his advisers need to take a page from the Bush play-book, go on the offensive, and call the increasingly craven rhetoric of Dick Cheney, Lindsey Graham and others what it is: a politically-driven, deeply unpatriotic suggestion that the American system of federal justice spelled out in Article III of the Constitution is simply not up to the task. (See http://www.politico.com/news/stories/0210/32998.html#ixzz0feO3RAMa , http://voices.washingtonpost.com/44/2010/02/bond-says-brennan-needs-to-go.html?wprss=44 , and http://online.wsj.com/article/SB30001424052748704022804575042112185849380.html).
Rather than focus on the rank hypocrisy of conservatives who cheered the Bush administration’s handling of the Richard Reid case in 2001 but decry the Obama administration’s decision to Mirandize Umar Farouk Abdulmutallab on Christmas Day, let’s focus instead on the sheer cynicism of the attacks currently being aimed at Eric Holder’s justice department. (See http://www.politico.com/news/stories/0210/32399.html , http://firstread.msnbc.msn.com/archive/2009/11/18/2130565.aspx , and http://mobile.salon.com/politics/war_room/2010/02/04/bond/index.html .)
In the Abdulmutallab case, and in the controversy over whether Khalid Sheikh Mohammed should be tried in federal court, the rather novel argument put forth by administration critics is that the American judiciary is somehow ill-equipped to administer justice in terrorism cases. Never mind that these very courts have been used repeatedly, both prior to 9/11 and in the years since, to prosecute and convict terrorists, securing nearly two hundred convictions since 2001 (http://www.lawandsecurity.org/publications/TTRCFinalJan142.pdf). Leave aside that by contrast, the military tribunal system favored by Graham and others has seen the adjudication of only three cases at Guantanamo (http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer) — and two of those suspects are now walking free. What’s most disturbing about those who criticize the administration for having the nerve to try terrorists in our courts is the plainly nihilistic lack of faith in the American system of government to administer justice and keep the country secure — an attitude that longtime FBI interrogator Ali Soufan justifiably calls a “smear” on the FBI agents and federal prosecutors on the front lines of the legal effort to disrupt and dismantle al-Qaeda (http://www.nytimes.com/2010/02/12/opinion/12soufan.html). The Republican (and some Democratic) lawmakers who are currently attacking Holder have all sworn an oath to uphold the Constitution. Yet they’re betraying an astonishing indifference to the document itself (http://www.politico.com/news/stories/0210/32840.html).
“I have to be more forceful in advocating for why I believe these are trials that should be held on the civilian side,” Holder told the New York Times this week (http://www.nytimes.com/2010/02/15/us/politics/15holder.html), and it is certainly true that the administration’s handling of the terror-trial issue has been an out-and-out failure of messaging. Part of the problem is that Holder’s announcement, in November, that he intended to try Mohammed and four other 9/11 conspirators in New York was accompanied by the news that the administration would try other Guantanamo detainees in military tribunals. This meant that Holder couldn’t do something that he needed to, politically, which was explain to the American people the utter lousiness (and potential lawlessness) of military tribunals.
But an even larger problem has been efforts by the White House, and particularly, as documented in the Times and the New Yorker (http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer), by Rahm Emanuel, to allow political pressure from congressional Republicans to pervert the decisionmaking process at Justice. (Emanuel recently earned a commendation for his efforts from no less than Bush veterans Dana Perino and Bill Burck (http://corner.nationalreview.com/post/?q=MjkwMjViZmVjYjIwMmY5YTYyNzczZTUyZmMxZTA1MTA). The chief of staff worried that “political fights over national security could hamper progress on the administration’s fundamental goals, like overhauling healthcare,” the Times suggests. But to judge by Obama’s campaign rhetoric, inaugural address, and early months in office, restoration of the rule of law was also a fundamental — perhaps the fundamental — goal.
Assuming that Holder can hold on to his office, and isn’t squeezed out for his adamant commitment to constitutional principles, the justice department and the White House need to bring the argument for terror trials in Article III courts to the American people. And they shouldn’t be afraid to take the gloves off, singling out dangerously obstructionist gestures like Graham’s bill to block funding for a civilian trial of KSM (http://www.mcclatchydc.com/national-security/story/83468.htm), and forcefully articulating the rationale for trying terrorists in federal courts.
This shouldn’t be so hard to do. It’s a pretty persuasive rationale.
The suggestion that Abdulmutallab or any other terrorist detained on American soil should not be read his Miranda rights should be dismissed as recklessly shortsighted. As Holder observed in a letter to Mitch McConnell, “There is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney.” (http://attackerman.firedoglake.com/2010/02/03/eric-holders-response-to-mitch-mcconnell) That “court-approved” bit should give pause not just to those among us who don’t want our government to violate the law, but also to anyone who wouldn’t want to see Abdulmutallab raising his denial of process as a defense in some subsequent trial — be it civilian or military.
The Constitution extends not just to U.S. citizens, but to anyone inside the United States, and as Jane Mayer pointed out in the New Yorker, the two instances in which the Bush administration transferred suspected terrorists arrested in the U.S. into military custody were each overturned on appeal. In both cases, the suspects were returned to the civilian system. The debate on these issues has tended, in recent weeks, to be characterized as a clash between rule-of-law sticklers, on the one hand, and “pragmatists” on the other. But from either point of view, terrorists arrested on U.S. soil should be read their Miranda rights and prosecuted in federal courts, as that is the surest route to a solid conviction and a lengthy sentence.
This pragmatic argument can also be applied to the need to try the 9/11 conspirators in federal court. If the desire is to see justice applied as swiftly and surely as possible, civilian courts are the only option, because they have the institutional experience and the actual laws and procedures that are required in a case of this magnitude. Military tribunals of the sort endeavored at Guantanamo are a comparatively recent innovation, and they remain by-and-large untested — both in terms of their capacity to try complex cases, and in terms of the baseline legality of the justice they administer. According to the Times, the prosecutors and judges in the military system are “less experienced” than their counterparts in the federal court system, and the rules by which military tribunals operate remain “a work in progress.” The tribunal system has never been used to try a murder case, and there is a strong possibility that the innovative conspiracy and material support charges that have resulted in many terrorism convictions in civilian court might be overturned on appeal if they were brought in a military tribunal, because they have not traditionally been considered crimes of war (http://www.dailykos.com/story/2010/2/11/132249/694).
Clearly, the administration is in something of a trick box on this issue. Just as Joe Biden was forced, on “Meet the Press (http://www.msnbc.msn.com/id/3032608/),” to insist that while Khalid Sheikh Mohammed should receive a fair trial in civilian court, in the unlikely event of his acquittal, he will not be set free, the administration is unable to fully embrace the civil court system and malign military tribunals — because it has elected to try other detainees in the tribunals as well. Still, unless President Obama and his advisers present a uniform face on this issue and bring the argument to the American people, there is a real danger that they will not find the political and popular support to hold a civilian trial for KSM in any jurisdiction in the United States. If that happens, it will signal a huge victory for congressional Republicans, and a resounding vote of no-confidence in our federal courts. Graham and his cohort will only grow emboldened, and may insist, eventually, that the judiciary is never the right venue in which to try terror suspects. The end result could be a perverse departure from Obama’s stated creed and an irony for historians to chew on: the Bush justice department may well end up having tried more terrorists in civilian courts than the Obama justice department ever will.
“The coming weeks could determine the ultimate shape of Obama-era detainee policy,” the Times (http://www.nytimes.com/2010/02/15/us/politics/15holder.html) suggests, and that’s true. But there’s more at stake here than detainee policy. What lies in the balance is nothing less than our collective faith in the efficacy of our system of government, as enshrined in the constitution. Overhauling health care may well be the administration’s fundamental goal right now. But Obama’s next steps on detainee policy will fundamentally shape his legacy.