Obama and Military Tribunals
Yesterday, Obama’s attorney general, Eric Holder, held a press conference and announced that Khalid Shaik Mohammed (KSM) would be prosecuted for war crimes before a military tribunal. It’s probably fair to say, as some newspapers have noted, that the idea of bringing KSM to New York City to be tried in civilian court for the 9/11 atrocity was Holder’s “signature” decision since becoming attorney general–and that that idea is now dead. However, Obama and Holder conceded a place for tribunals more than a year ago and they could never really offer a good explanation as to why some persons would go to civilian court and why others would go before tribunals. Like Bush, Cheney, and Rumsfeld, Obama and his people would just sorta decide case-by-case.
Conservatives are chortling over Obama’s apparent embrace of Bush policies, such as keeping Guantanamo open and reviving trials before tribunals. Like the escalation of the war in Afghanistan, however, Obama has not stumbled on to the correct path. He has instead shown exceptionally poor judgment yet again. Two questions are now looming on the horizon. First, prosecutors are anxious to have a lengthy 9/11 trial, but what if KSM calls the tribunal a farce and decides to skip the trial, plead guilty, and then demands to be executed so he can become a martyr? The tribunal might grant the wish, but the legitimacy of the military system may be called into question again–especially in the Muslim world. Second, the Pentagon has made it pretty clear that anyone acquitted by a tribunal will remain a prisoner at Guantanamo (pdf). There may be a legal rationale for that, but, again, how is that going to be perceived by the world? As a start, one might consider how we would react if an American were acquitted by a court abroad, but was nonetheless returned to his prison cell to be detained indefinitely.
There is no need to go there. Obama should close Gitmo and transfer the prisoners to Bagram and hold them there, but with full transparency. The Bush policies of secret prisons, secret interrogation methods, and secret trials before special military courts were wrongheaded and remain so.
For additional background, go here.
Tuesday Links
- America’s involvement in the war in Libya can’t be justified on either security or humanitarian grounds.
- Obamacare can’t be fixed, and now is the time to dismantle it.
- The no-fly zone over Libya can’t mean good things for American politics or policy.
- Bureaucrats can’t allocate goods more efficiently than market actors.
- President Obama can’t blame former President Bush for Guantanamo Bay anymore:
Thursday Links
- “If financial institutions are indeed better than consumers at managing interest risk, then those companies should be able to offer consumers attractive terms for doing so — without the moral hazard of an enormous taxpayer backstop.”
- We should be thankful that the president is spending time on his golf game.
- After all, he recently reinstated military tribunals at Guantanamo Bay and has continued the use of extra-constitutional prisons in the U.S. after the Bush era.
- “It’s odd that debate here centers on a no-fly zone, a form of military intervention that shows support for rebels without much helping them.”
- Does Haley Barbour really want to cut defense spending? Or is he just really politically astute?
Obama’s Military Tribunals
This week Obama announced that he intends to prosecute prisoners before military tribunals. The administration is taking pains to point out that Obama is not embracing the Bush policy. These will be Obama’s tribunals, not Bush’s. But since Mr. Obama’s executive order can be revised or withdrawn at any time, the new and improved procedures do not amount to much. The tribunals were wrongheaded under Bush and the critique applies equally well to Obama’s “new” policy.
As others have noted, Obama has now embraced tribunals, Gitmo, and the Patriot Act. Bad news, but at least Obama kept his promises to end the wars and get us on a sound financial footing.
For additional Cato work related to military tribunals, go here and here.
Playing Chicken Again
As I wrote in this post, Senators McCain and Lieberman proposed a broad piece of anti-terrorism legislation. The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected domestic terrorists, including American citizens. This is a sea change in counterterrorism policy and a break from American principles that mandate a day in court.
This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that — it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.
The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.
The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard — commissions for Muslims in America, civilian trials for everyone else — is counterproductive when it comes to defeating terrorist recruiting.
I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:
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.
Obama’s Military Commissions
President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses. Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”
Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:
What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins. It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking. Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.
Greenwald is right. The primary issue is not due process. The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?
For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.
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