Try the 9/11 Conspirators in Both Federal Courts and Military Commissions?
That’s the proposal Benjamin Wittes makes in today’s Washington Post. Wittes says that by splitting the legal baby, by “charging the 9/11 case in both military commissions and federal court,” the Obama administration can satisfy political considerations on both sides of the aisle.
This is a path fraught with legal issues. The constitutional bar against double jeopardy would prevent a trial in one forum and re-trial in the other for the same actions. Wittes spells out his proposal in greater detail in this post at the Lawfare blog, and he acknowledges this risk. The same sovereign cannot try someone twice for the same crime and Wittes acknowledges that the “John Allen Muhammed Model,” named after one of the Beltway snipers, used the separate sovereigns doctrine in ways that do not apply to Guantanamo. The Beltway snipers were liable for separate crimes in Maryland and Virginia in a way that does not translate directly to the 9/11 conspirators.
Wittes recognizes these legal issues and proposes that federal prosecutors and military commissions prosecutors clearly separate the crimes they respectively charge.
I’d go further. The clearest way to make this work is not to “charg[e] the 9/11 case in both military commissions and federal court.” This proposal only works if you charge pre-9/11 conduct in an Article III court and the 9/11 attacks in a military commission.
The Double Jeopardy Clause of the Fifth Amendment would prevent “charging the 9/11 case in both military commissions and federal court.” Federal prosecutors charged Khalid Sheikh Mohammed well before 9/11 for his participation in the Bojinka Plot, a plan to blow up airliners over the Pacific Ocean. To the extent that he and other 9/11 co-conspirators can be charged with crimes related to Bojinka or other pre-9/11 attacks, this would pass constitutional muster. Otherwise, this is a not an advisable course of action.
1,000 Troops = $1 Billion/Year
There is a useful math lesson buried near the end of Greg Jaffe and Karen DeYoung’s widely discussed story on an Afghan war game that the Obama administration is using to weigh the costs and risks of competing strategies.
One question being debated is whether more U.S. troops would improve the performance of the Afghan government by providing an important check on corruption and the drug trade, or would they stunt the growth of the Afghan government as U.S. troops and civilians take on more tasks that Afghans might better perform themselves. Another factor is cost. The Pentagon has budgeted about $65 billion to maintain a force of about 68,000 troops, meaning that each additional 1,000 U.S. soldiers in Afghanistan would cost about $1 billion a year.
I haven’t seen this figure before, and it is based upon a back-of-the-envelope calculation that might be undone by economies of scale. It is not obvious, for example, that the first 1,000 troops would cost the same as the last 1,000. Still, it is a reasonable estimate that is apparently being used inside of the Obama administration.
Accepting the number as basically accurate, the question then turns to “Is it worth it?” That can only be answered by weighing the opportunity costs.
If the Obama administration goes along with Gen. Stanley McChrystal’s request for more troops, and therefore chooses to spend additional money on this mission, the administration is saying, in effect, that an expanded troop presence will do more to prevent a repeat of 9/11 than if the money had been spent on countless other missions and programs ostensibly directed to the same purpose.
Count me a skeptic. There is considerable evidence that a large-scale and open-ended troop presence is counterproductive to fighting terrorism. Meanwhile, there have been a number of highly effective counterterrorism programs that cost far, far less than even $1 billion a year. The proponents of a huge troop increase in Afghanistan obviously disagree, and thus implicitly claim that $40 billion is money well spent (for reference, the entire Dept. of Homeland Security budget for FY 2010 will total $42.8 billion).
Let the advocates for a larger troop presence attempt to make that case. At least now we have a tangible measure for weighing competing options. Thanks to Jaffe and DeYoung for shedding some light on a previously under-reported statistic.
The Zero Percent Doctrine
I was never a fan of Dick Cheney’s one percent doctrine.
According to Ron Suskind, after 9/11 Cheney explained to law enforcement and intelligence officials that they should treat even the one percent chance of a terrorist attack as a mathematical certainty. The particular case was of a Pakistani nuclear scientist helping al-Qaeda to acquire a nuclear bomb, but the standard became a shorthand for U.S. counterterror efforts generally. No scale of effort would be too great. Better to chase down 100 leads, 99 of which turn out to be bogus, because finding just that one nugget would have been worth the level of effort.
Now we have evidence that the federal government is chasing down far more than 99 blind alleys for just one lead. From today’s front-page story in the New York Times, Eric Schmitt explains how the FBI has adapted and evolved since 9/11:
The bureau now ranks fighting terrorism as its No. 1 priority. It has doubled the number of agents assigned to counterterrorism duties to roughly 5,000 people, and has created new squads across the country that focus more on deterring and disrupting terrorism than on solving crimes.
But the manpower costs of this focus are steep, and the benefits not always clear. Of the 5,500 leads that the squad has pursued since it was formed five years ago, only 5 percent have been found credible enough to be sent to permanent F.B.I. squads for longer-term investigations, said Supervisory Special Agent Kristen von KleinSmid, head of the squad. Only a handful of those cases have resulted in criminal prosecutions or other law enforcement action, and none have foiled a specific terrorist plot, the authorities acknowledge. (Emphasis mine.)
So, just to review:
- 5,500 leads over 5 years
- 5 percent deemed credible
- “A handful” technically would mean five or less, but charitably might total a few dozen. Still, that translates to far less than 1 percent of leads investigated resulting in a criminal prosecution.
But, and here’s the kicker,
- None – zero, zip, nada – foiled a specific terrorist plot.
On the face of it, this seems like a waste of time and resources that should be spent elsewhere.
Civil Liberties and President Barack W. Bush?
It’s fair to say that civil liberties and limited government were not high on President George W. Bush’s priorities list. Indeed, they probably weren’t even on the list. Candidate Barack Obama promised “change” when he took office, and change we have gotten. The name of the president is different.
Alas, the policies are much the same. While it is true that President Obama has not made the same claims of unreviewable monarchical power for the chief executive–an important distinction–he has continued to sacrifice civil liberties for dubious security gains.
Civil libertarians recently accused President Obama of acting like former President George W. Bush, citing reports about Mr. Obama’s plans to detain terrorism suspects without trials on domestic soil after he closes the Guantánamo prison.
It was only the latest instance in which critics have argued that Mr. Obama has failed to live up to his campaign pledge “to restore our Constitution and the rule of law” and raised a pointed question: Has he, on issues related to fighting terrorism, turned out to be little different from his predecessor?
The answer depends on what it means to act like Mr. Bush.
As they move toward completing a review of their options for dealing with the detainees, Obama administration officials insist that there is a fundamental difference between Mr. Bush’s approach and theirs. While Mr. Bush claimed to wield sweeping powers as commander in chief that allowed him to bypass legal constraints when fighting terrorism, they say, Mr. Obama respects checks and balances by relying on — and obeying — Congressional statutes.
“While the administration is considering a series of options, a range of options, none relies on legal theories that we have the inherent authority to detain people,” Robert Gibbs, the White House press secretary, said this week in response to questions about the preventive detention report. “And this will not be pursued in that manner.”
But Mr. Obama’s critics say that whether statutory authorization exists for his counterterrorism policies is just a legalistic point. The core problem with Mr. Bush’s approach, they argue, was that it trammeled individual rights. And they say Mr. Obama’s policies have not changed that.
“President Obama may mouth very different rhetoric,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “He may have a more complicated process with members of Congress. But in the end, there is no substantive break from the policies of the Bush administration.”
The primary beneficiaries of constitutional liberties are not terrorist suspects, but the rest of us. The necessary trade-offs are not always easy, but the president and legislators must never forget that it is a free society they are supposed to be defending.
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