The Red Team’s Spin on The Christmas Bomber
In recent weeks, conservatives have worked themselves into a self-righteous lather over how the Obama administration handled the would-be Christmas bomber. It’s a complaint you could hear again and again at last weekend’s Conservative Political Action Conference: Mirandizing the 23-year-old Nigerian Muslim was a big mistake, the story goes, because it denied us valuable intelligence, and it’s just so typical of Barack Obama’s callow, weak, law-enforcement-oriented approach to the terrorist threat.
As a constitutional matter, I’ve never been entirely comfortable with the Miranda decision, which smacks of judicial lawmaking, and I don’t think liberty stands or falls on whether one failed terrorist got read his rights. In fact, I think Mirandizing Abdulmutallab was a pretty silly thing to do. The administration could and should have continued to question him and gather intelligence (and it’s not as if you’d need his statements to convict when there were scads of witnesses aboard the plane).
Nonetheless, I still find it hard to see all the hubbub as much more than manufactured partisan outrage.
After all, Richard Reid, the failed shoebomber of December 2001, was Mirandized repeatedly by George W. Bush’s FBI, who, rather than questioning him for 50 minutes, read Reid his rights as soon as the Massachusetts staties handed him over. That was barely two months after the largest terror attack in American history, at a time when we had good reason to fear that the terrorist threat was far greater than it now appears to be. Somehow, though, I don’t recall hearing quite as much wailing and gnashing of teeth from the Right back then. Moreover, outside of the special pleading of former Bush officials, there’s little evidence that Bush would have handled the situation much differently even if it happened much later in his tenure as president.
We’re told that the Christmas Bomber’s treatment reveals Obama’s pusillanimous new paradigm for the War on Terror. But virtually anyone who’s taken a serious look at Obama’s terrorism policies has concluded they differ from Bush’s mainly in terms of rhetoric, not substance. You can love the Bush approach or hate it, but if you’re drawing a sharp distinction between his policies and Obama’s, you’re misinformed at best.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
John Yoo on Civilian Trials for Terrorism Cases
Yesterday, the Wall Street Journal published an article by John Yoo that criticized the Obama administration’s decision to prosecute Khalid Sheik Mohammed (KSM) and several of his fellow Guantanamo prisoners in civilian court. Yoo makes too many claims for me to respond to in a blog post, but let me address a few.
According to Yoo, “The treatment of the 9/11 attacks as a criminal matter rather than an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.” That is an odd thing to say for several reasons. First, it is all over the news: We are still very much at war. Second, even if Obama pulled U.S. troops out of Afghanistan and Iraq, would the United States really be “crippled” in the fight against bin Laden? ”Crippled” suggests the U.S. is on the verge of joining Costa Rica or Belize in terms of our military strength. Farfetched. Third, the Bush administration also treated the 9/11 attacks as a criminal matter when it indicted and prosecuted Zacarias Moussaoui in civilian court. Yoo seems to think that that call was mistaken, but did it ”cripple” the U.S.? Did the Bush administration, in effect, declare that the U.S. was “no longer at war”? Of course not. So why does Yoo make that claim now? Odd.
Next, Yoo complains that by bringing KSM to New York for a civilian trial, the prisoner will get to “enjoy the benefits and rights that the Constitution accords to citizens and resident aliens.” This is another odd statement because the benefits of a civilian trial (public trial, jury trial, calling witnesses, confronting adverse witnesses, etc) are not limited to citizens and resident aliens. After all, Asian tourists and illegal immigrants from Mexico, to take two examples, are not “citizens” or “resident aliens.” If a federal prosecutor were to accuse them of a crime, they would get a trial in civilian court. A claim that the government could deny, say, a nonresident alien from China a civilian trial would be totally at odds with American constitutional law. Yoo may disagree with that law, but if he does, he should have made that clear because he left a misleading impression.
Third, Yoo calls the Moussaoui trial a “circus” because it provided Moussaoui with a “platform to air his anti-American tirades.” Well, to start, just because Yoo calls a trial a “circus” does not make it so. The federal judge in the Moussaoui case did what we would expect a good American judge to do–that is, give the person who is accused of the crime a fair opportunity to speak and to offer a defense. At the same time, the judge must maintain order in the courtroom and anyone who becomes disruptive (including the accused) can be removed. The potential problem of a “tirade” is nothing new and is not, of course, limited to persons who share bin Laden’s twisted worldview. Some recent examples include the Unabomber and the shooter at the Holocaust museum. In short, it is a weak argument to critique our system of civilian trials because the defendant may want to insist on saying something that is unpopular, unpleasant, or incoherent. And, at the time of sentencing, a trial judge can respond, as Judge William Young did when he sentenced Richard Reid to life behind bars.
For more on the subject of military commissions, go here and here. For more on John Yoo, go here and here.
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