Marco Rubio, the hard-core conservative vying to become Florida’s next Republican senator, brought the house down at the Conservative Political Action Conference (CPAC) last week [Feb. 18] by calling for prosecuting terrorists in military tribunals instead of civilian courts. But the audience might not have been so enthusiastic if Rubio had told them the record since 9/11: nearly 200 al Qaeda- or Taliban-related terrorism convictions in federal courts and only three in the military commissions operating at Guantanamo.
Rubio is one of many Republicans rooting for military over civilian trials in terrorism cases with blatant disregard of the successful criminal prosecution of terrorists during the Bush administration. Their number includes former Vice President Dick Cheney, who argued for wider use of military tribunals while in office only to be overruled by President Bush. The Bush Justice Department in fact touted its “considerable success” in prosecuting and incarcerating terrorists in September 2008, on the seventh anniversary of the 2001 attacks.
The newfound criticism of civilian prosecutions is driven by two Obama administration decisions: Attorney General Eric Holder’s decision in November to try Khalid Sheikh Mohammed (KSM), the alleged mastermind of the 9/11 attacks, in a federal court in New York City; and the joint law enforcement decision to arrest Umar Farouk Abdulmutallab, the Christmas Day bomber, and treat him as an ordinary criminal suspect with all that entails — including Miranda warnings.
Both of those decisions are open for debate. It should be noted, however, that New York Mayor Michael Bloomberg initially welcomed bringing KSM and the other alleged 9/11 conspirators to justice within a mile of ground zero. Only later did he become concerned about the expense and risks of a high-profile trial in Lower Manhattan.
As for Abdulmutallab, the Republicans’ earlier complaint that the Nigerian was Mirandized just 55 minutes after his arrest appears to be inaccurate. The detailed timetable released by the administration shows that Abdulmutallab was questioned for 50 minutes without being advised of his rights and gave useful information before being taken away for surgery. After the four-hour procedure, Abdumutallab decided to stop talking. Only then was he given Miranda warnings. And, now, he is talking — after being given a lawyer and hearing from family members in Nigeria who were visited by FBI agents.
Neither of those two controversies directly implicates the question whether civilian courts or military tribunals are the best forum to prosecute people for aiding al Qaeda or the Taliban against the United States. The Republicans’ demand to treat suspected terrorists as “enemy combatants” in military tribunals sounds tough and resonates not only with conservatives but also with the general public. A poll by CNN three days after Holder’s announcement in November found that 60 percent favored trying KSM in a military tribunal.
Public opinion would almost certainly change if people read two comprehensive reports on terrorism-related prosecutions since 9/11 — one written by two former federal prosecutors for the group Human Rights First; the other by researchers at New York University Law School’s Center on Law and Security. Both reports, available here and here, say flatly that criminal prosecutions have been successful despite the difficulties inherent in the court system.
A quick clarification about numbers. The NYU study uses a catch-all methodology to count 523 terrorism convictions since 9/11. President Obama once used a figure of 300. Republicans attacked that number, but, as NPR’s Ari Shapiro pointed out, the figure came from the Bush Justice Department. The most useful figure, however, comes from the two ex-prosecutors, who counted 195 defendants convicted of at least one count in an al Qaeda- or Taliban-related case. With 19 acquittals or dismissals, the conviction rate is 91 percent.
Some of the convictions came in prominent cases: Zacarias Moussaoui, the so-called 20th hijacker; the Lackawanna Six, an al Qaeda “sleeper” cell; and the Liberty City Six, five of them convicted for plotting to blow up the Sears Tower. Eleven defendants got life sentences; prison terms for others averaged a little over eight years. The few major setbacks, according to report co-author James Benjamin, stemmed from garden-variety trial errors instead of any systemic weakness in using civilian court.
By contrast, the military commissions have “underperformed,” according to Brookings Institution expert Benjamin Wittes. Only three defendants have been convicted: David Hicks, the so-called Australian Taliban; Salim Ahmed Hamdan, Osama bin Laden’s driver; and Ali Hamza Ahmad Suliman al Bahlul, an al Qaeda filmmaker and propagandist.
Hicks and Hamdan are both free after being given relatively minimal sentences; Bahlul received a life term. But Hamdan and Bahlul are appealing their convictions on the ground that the offense charged — material support of terrorism — cannot be tried in the military system because it is not a traditional war crime. If they prevail — and the legal issue is close — that very effective prosecutorial tool would be available only in civilian courts, not in the military commissions.
` The GOP criticism of civilian trials is “silly,” according to Wittes. Like the Obama administration, he would not rule out the use of military commissions. But “any responsible administration” would look first to civilian courts, Wittes says, because of “their much richer history of cases being prosecuted successfully.”
Monday, February 22, 2010
Tuesday, February 16, 2010
Strong Presidents Have No Need for Torture
Constitutional law professor John Yoo is out promoting his new book and its stout defense of the need for a strong president in times of national emergencies. But the demonstrators in orange jump suits outside his recent appearance in Washington, D.C., were a reminder that Yoo’s thesis has an inevitable subtext: his authorship of the later-repudiated Justice Department memo claiming a presidential power to commit torture.
Yoo makes no mention in Crisis and Command of either of the two infamous torture memos that he drafted in 2002 and 2003 as deputy director of the Justice Department’s Office of Legal Counsel under President George W. Bush. Having returned to the University of California-Berkeley law school, Yoo makes his case for a strong presidency by citing assertive chief executives viewed favorably by history: chiefly, Washington, Jackson, Lincoln, and FDR. And he contrasts them with failed presidents, such as James Madison and James Buchanan, who took a less expansive view of their powers.
Despite all the indicia of respectable scholarship, the book is to some extent an academic sleight of hand. For one thing, Yoo neglects to tell readers of his belief that the president enjoys unbounded power as commander in chief over the detention and interrogation of enemy combatants — even to the point of violating domestic law and international treaties against torture.
Even in the covered material, however, Yoo glosses over the critical distinction between the use of presidential power in institutional conflicts — with Congress or the states — and the misuse of presidential power against individuals. It is one thing to commend Franklin Roosevelt for skirting neutrality statutes to lead the nation into a just and necessary war. It is another to defend Roosevelt for the internment of Japanese Americans or the summary convictions and executions of German saboteurs.
Yoo begins with the first president, George Washington, and his assertion of a critical foreign affairs power vis-à-vis Congress in 1793 in issuing a proclamation of neutrality in the war between Britain and France. Two of the framers, Alexander Hamilton and Madison, debated whether Washington had overstepped his powers. As Yoo says, Hamilton’s view defending Washington’s action has prevailed.
History similarly judges Andrew Jackson to have been right in two important tests of presidential power when he was in the White House. Jackson stared down a Senate censure over his decision to withdraw government funds from the corruption-plagued National Bank. And he stood up against John Calhoun and others who claimed for the states a power of “nullification” over federal laws that they disapproved.
Turning to the Civil War, Yoo says that both Buchanan and Abraham Lincoln believed that Southern states had no power to secede from the Union. Lincoln succeeded where Buchanan failed, Yoo says, because he thought — unlike Buchanan — that the president could use force against the secessionists. Then, during the war, Lincoln stretched his powers as commander in chief to issue the Emancipation Proclamation, even though Congress had a different approach on freeing the slaves.
History judges Lincoln right on both counts, but it gives no agreed verdict on Lincoln’s suspension of the writ of habeas corpus — ratified by Congress only after the fact — and his detention of thousands of suspected saboteurs, spies and Confederate sympathizers. Whether justified or not, it should be noted that Lincoln countermanded some of the harsher decisions by military tribunals. And the war was won not by jailing secessionists in the North but by besting the Confederate Army on the battlefields in the South.
Franklin Roosevelt’s actions in the run-up to World War II demonstrated a resolve similar to Lincoln’s to use presidential power to confront a threat to national security. As commander in chief, FDR helped forge the alliance that defeated Germany and Japan. But history gives him no credit for the decision to send 120,000 Japanese Americans to concentration camps. And it is jarring to hear Yoo cite with approval the Supreme Court’s discredited decision, Korematsu v. United States, upholding Roosevelt’s action.
The Supreme Court brought no credit to itself either in upholding FDR’s use of truncated procedures against the German saboteurs captured in June 1942 in New York and Florida, who were convicted within two months and put to death even before the justices had time to issue a formal opinion on their appeals.
Yoo says the Bush presidency must await history’s verdict, but for his part reaffirms his support for all of the post-9/11 policies as consistent with the historical precedents of Washington, Lincoln and FDR. Again, though, Yoo makes no distinction between the use of force to confront and defeat the nation’s enemies on the battlefield and the use of ad hoc procedures against captured “enemy combatants” that skirt constitutional rights and international law.
Yoo himself is awaiting the verdict from an internal Justice Department investigation on whether he violated legal ethics in providing the advice that permitted the use of waterboarding and other “enhanced interrogation techniques” and that depicted the president in any event as above the law in ordering those policies. He defends those memos, rescinded by the Bush Justice Department itself, as his best judgment as a lawyer. Perhaps they were. But history provides no basis, even in Yoo’s telling, for believing that a strong president needs arbitrary powers, much less the right to use torture, to keep the country safe and secure.
Yoo makes no mention in Crisis and Command of either of the two infamous torture memos that he drafted in 2002 and 2003 as deputy director of the Justice Department’s Office of Legal Counsel under President George W. Bush. Having returned to the University of California-Berkeley law school, Yoo makes his case for a strong presidency by citing assertive chief executives viewed favorably by history: chiefly, Washington, Jackson, Lincoln, and FDR. And he contrasts them with failed presidents, such as James Madison and James Buchanan, who took a less expansive view of their powers.
Despite all the indicia of respectable scholarship, the book is to some extent an academic sleight of hand. For one thing, Yoo neglects to tell readers of his belief that the president enjoys unbounded power as commander in chief over the detention and interrogation of enemy combatants — even to the point of violating domestic law and international treaties against torture.
Even in the covered material, however, Yoo glosses over the critical distinction between the use of presidential power in institutional conflicts — with Congress or the states — and the misuse of presidential power against individuals. It is one thing to commend Franklin Roosevelt for skirting neutrality statutes to lead the nation into a just and necessary war. It is another to defend Roosevelt for the internment of Japanese Americans or the summary convictions and executions of German saboteurs.
Yoo begins with the first president, George Washington, and his assertion of a critical foreign affairs power vis-à-vis Congress in 1793 in issuing a proclamation of neutrality in the war between Britain and France. Two of the framers, Alexander Hamilton and Madison, debated whether Washington had overstepped his powers. As Yoo says, Hamilton’s view defending Washington’s action has prevailed.
History similarly judges Andrew Jackson to have been right in two important tests of presidential power when he was in the White House. Jackson stared down a Senate censure over his decision to withdraw government funds from the corruption-plagued National Bank. And he stood up against John Calhoun and others who claimed for the states a power of “nullification” over federal laws that they disapproved.
Turning to the Civil War, Yoo says that both Buchanan and Abraham Lincoln believed that Southern states had no power to secede from the Union. Lincoln succeeded where Buchanan failed, Yoo says, because he thought — unlike Buchanan — that the president could use force against the secessionists. Then, during the war, Lincoln stretched his powers as commander in chief to issue the Emancipation Proclamation, even though Congress had a different approach on freeing the slaves.
History judges Lincoln right on both counts, but it gives no agreed verdict on Lincoln’s suspension of the writ of habeas corpus — ratified by Congress only after the fact — and his detention of thousands of suspected saboteurs, spies and Confederate sympathizers. Whether justified or not, it should be noted that Lincoln countermanded some of the harsher decisions by military tribunals. And the war was won not by jailing secessionists in the North but by besting the Confederate Army on the battlefields in the South.
Franklin Roosevelt’s actions in the run-up to World War II demonstrated a resolve similar to Lincoln’s to use presidential power to confront a threat to national security. As commander in chief, FDR helped forge the alliance that defeated Germany and Japan. But history gives him no credit for the decision to send 120,000 Japanese Americans to concentration camps. And it is jarring to hear Yoo cite with approval the Supreme Court’s discredited decision, Korematsu v. United States, upholding Roosevelt’s action.
The Supreme Court brought no credit to itself either in upholding FDR’s use of truncated procedures against the German saboteurs captured in June 1942 in New York and Florida, who were convicted within two months and put to death even before the justices had time to issue a formal opinion on their appeals.
Yoo says the Bush presidency must await history’s verdict, but for his part reaffirms his support for all of the post-9/11 policies as consistent with the historical precedents of Washington, Lincoln and FDR. Again, though, Yoo makes no distinction between the use of force to confront and defeat the nation’s enemies on the battlefield and the use of ad hoc procedures against captured “enemy combatants” that skirt constitutional rights and international law.
Yoo himself is awaiting the verdict from an internal Justice Department investigation on whether he violated legal ethics in providing the advice that permitted the use of waterboarding and other “enhanced interrogation techniques” and that depicted the president in any event as above the law in ordering those policies. He defends those memos, rescinded by the Bush Justice Department itself, as his best judgment as a lawyer. Perhaps they were. But history provides no basis, even in Yoo’s telling, for believing that a strong president needs arbitrary powers, much less the right to use torture, to keep the country safe and secure.
Monday, February 8, 2010
'All Deliberate Speed' on Don't Ask, Don't Tell?
When the Supreme Court outlawed racial segregation in schools in 1954, Chief Justice Earl Warren tried to soften the impact of the ruling by giving local school systems time to comply. One year after the ruling, the court said in a follow-up that local school systems had to desegregate not immediately but “with all deliberate speed.”
The strategy paid off — for the segregationists. With no court orders issued or imminent, segregationists mounted a campaign of “massive resistance” at every level of government. A decade later, hardly any school districts had effectively desegregated.
Today, the Obama administration appears to be following a similar strategy in trying to repeal the “don’t ask, don’t tell” policy on gays in the military. The administration’s hopes depend on the assumption that with enough time and “deliberation,” supporters of the present discriminatory policy will recognize what the top Pentagon leaders now believe: gay men and lesbians can and should serve openly and proudly in the U.S. military.
The initial indications are mixed. Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, is drawing wide praise for his forthright statement in favor of ending “don’t ask, don’t tell.” In the wake of Mullen’s appearance along with Defense Secretary Robert Gates before the Senate Armed Services Committee [Feb. 2], there is no evidence of a widespread anti-gay backlash among the public at large.
Indeed, the administration now has an important ally in trying to repeal the policy: retired general Colin Powell. As chairman of the Joint Chiefs in 1993, Powell played the pivotal role in the defeat of President Bill Clinton’s effort to end discrimination against gays in the military and the enactment instead of the compromise “don’t ask, don’t tell” policy. Today, Powell says, “attitudes and circumstances have changed.”
On the other hand, Republicans in Congress and social conservatives outside the Capitol are digging in their heels to block any change in the policy. Sen. John McCain, R-Ariz., the committee’s ranking Republican, said he was “deeply disappointed” in Mullen’s stance.
Previously, McCain had said he was open to repealing the policy if the military signed off. After hearing Mullen’s statement, however, McCain insisted that the policy “has been effective” even if “not ideal.” And he emphasized that Congress enacted the policy into law in 1993 and only Congress can repeal it.
To counter the anticipated opposition, the administration is relying on the high-level study ordered by Gates to be co-chaired by the Pentagon’s top civilian lawyer and the commander of U.S. forces in Europe and due to be completed by the end of the year. The study is aimed at ascertaining the views of service members, examining the impact of gay service members in other militaries, and identifying any specific steps needed after gays are allowed to serve openly.
Mullen emphasized that there has been no statistically valid study of the troops’ views. The only evidence that supporters of the policy cite is organized letter-writing by retired officers and write-in surveys by present service members who oppose allowing gays to serve openly.
Anecdotal evidence and a RAND Corporation study of vets in Iraq and Afghanistan suggest most service members will have no problem with gays serving openly. Mullen himself said he had served with homosexuals since 1968. But the relevance is unclear. No poll of students and families in the 1950s would have changed the constitutional imperative to abolish racial segregation. In addition, as Sen. Kirsten Gillibrand, D-N.Y., pointed out, the present policy effectively prevents gay service members themselves from speaking out on the issue without risking discharge. Gates lamely suggested gathering information from some of the gay soldiers already discharged under the policy.
As for other issues, the evidence is already in. Based on a study of militaries in six countries and police and fire departments in six U.S. cities, the RAND Corporation told Congress in 1993 that gays were serving openly with no apparent impact on effectiveness or cohesion.
Seventeen years later, the evidence is only stronger. Of two dozen militaries that allow gays to serve openly, none report negative effects. For the United States, the most visible effect is the loss in manpower. Since 1994, around 13,500 service members have been discharged under the policy. They took with them what the Government Accountability Office estimated in 2005 as close to $200 million invested in their recruitment and training.
Republican senators at the Armed Services hearing cited no studies to substantiate their warnings of a loss of unit cohesion. They did not contradict the polls indicating public support as high as 75 percent for allowing gays to serve in the military. In The Weekly Standard, the conservative commentator William Kristol described the policy as a success that, in any event, affects only “a few thousand” people. Actually, an Urban Institute demographer estimates 65,000 gay men and lesbians are currently serving in the U.S. military.
Politics appears to be driving the Republicans’ stance. Sen. Orrin Hatch, R-Utah, made an ambiguous suggestion one day that he was open to repealing the policy only to retreat the next. In a political fight, time can help either side build support and momentum. The Obama administration’s challenge on “don’t ask, don’t tell” is to use the coming months to its advantage instead of letting opponents build up resistance to a change in policy.
The strategy paid off — for the segregationists. With no court orders issued or imminent, segregationists mounted a campaign of “massive resistance” at every level of government. A decade later, hardly any school districts had effectively desegregated.
Today, the Obama administration appears to be following a similar strategy in trying to repeal the “don’t ask, don’t tell” policy on gays in the military. The administration’s hopes depend on the assumption that with enough time and “deliberation,” supporters of the present discriminatory policy will recognize what the top Pentagon leaders now believe: gay men and lesbians can and should serve openly and proudly in the U.S. military.
The initial indications are mixed. Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, is drawing wide praise for his forthright statement in favor of ending “don’t ask, don’t tell.” In the wake of Mullen’s appearance along with Defense Secretary Robert Gates before the Senate Armed Services Committee [Feb. 2], there is no evidence of a widespread anti-gay backlash among the public at large.
Indeed, the administration now has an important ally in trying to repeal the policy: retired general Colin Powell. As chairman of the Joint Chiefs in 1993, Powell played the pivotal role in the defeat of President Bill Clinton’s effort to end discrimination against gays in the military and the enactment instead of the compromise “don’t ask, don’t tell” policy. Today, Powell says, “attitudes and circumstances have changed.”
On the other hand, Republicans in Congress and social conservatives outside the Capitol are digging in their heels to block any change in the policy. Sen. John McCain, R-Ariz., the committee’s ranking Republican, said he was “deeply disappointed” in Mullen’s stance.
Previously, McCain had said he was open to repealing the policy if the military signed off. After hearing Mullen’s statement, however, McCain insisted that the policy “has been effective” even if “not ideal.” And he emphasized that Congress enacted the policy into law in 1993 and only Congress can repeal it.
To counter the anticipated opposition, the administration is relying on the high-level study ordered by Gates to be co-chaired by the Pentagon’s top civilian lawyer and the commander of U.S. forces in Europe and due to be completed by the end of the year. The study is aimed at ascertaining the views of service members, examining the impact of gay service members in other militaries, and identifying any specific steps needed after gays are allowed to serve openly.
Mullen emphasized that there has been no statistically valid study of the troops’ views. The only evidence that supporters of the policy cite is organized letter-writing by retired officers and write-in surveys by present service members who oppose allowing gays to serve openly.
Anecdotal evidence and a RAND Corporation study of vets in Iraq and Afghanistan suggest most service members will have no problem with gays serving openly. Mullen himself said he had served with homosexuals since 1968. But the relevance is unclear. No poll of students and families in the 1950s would have changed the constitutional imperative to abolish racial segregation. In addition, as Sen. Kirsten Gillibrand, D-N.Y., pointed out, the present policy effectively prevents gay service members themselves from speaking out on the issue without risking discharge. Gates lamely suggested gathering information from some of the gay soldiers already discharged under the policy.
As for other issues, the evidence is already in. Based on a study of militaries in six countries and police and fire departments in six U.S. cities, the RAND Corporation told Congress in 1993 that gays were serving openly with no apparent impact on effectiveness or cohesion.
Seventeen years later, the evidence is only stronger. Of two dozen militaries that allow gays to serve openly, none report negative effects. For the United States, the most visible effect is the loss in manpower. Since 1994, around 13,500 service members have been discharged under the policy. They took with them what the Government Accountability Office estimated in 2005 as close to $200 million invested in their recruitment and training.
Republican senators at the Armed Services hearing cited no studies to substantiate their warnings of a loss of unit cohesion. They did not contradict the polls indicating public support as high as 75 percent for allowing gays to serve in the military. In The Weekly Standard, the conservative commentator William Kristol described the policy as a success that, in any event, affects only “a few thousand” people. Actually, an Urban Institute demographer estimates 65,000 gay men and lesbians are currently serving in the U.S. military.
Politics appears to be driving the Republicans’ stance. Sen. Orrin Hatch, R-Utah, made an ambiguous suggestion one day that he was open to repealing the policy only to retreat the next. In a political fight, time can help either side build support and momentum. The Obama administration’s challenge on “don’t ask, don’t tell” is to use the coming months to its advantage instead of letting opponents build up resistance to a change in policy.
Monday, February 1, 2010
Civilian or Military Trials for Terrorism Cases?
It seemed like a good idea at the time: trying Khalid Sheikh Mohammed and four other alleged 9/11 conspirators in a federal court in New York City. Let’s give the “worst of the worst” the best of American justice, only blocks away from Ground Zero.
But the Obama administration is retreating from the decision to hold KSM’s trial in Lower Manhattan after New York City Mayor Michael Bloomberg, who had originally supported the plan, changed his mind. Bloomberg told reporters on Wednesday [Jan. 27] that a trial expected to last months if not years would disrupt the city, damage its economy, and cost up to $1 billion in security.
The White House initially stood its ground, but for less than 48 hours. By Friday, aides were saying the trial, scheduled to begin in September, would be moved — to a location yet to be determined. New York officials were relieved.
The relocation, however, leaves in place the more fundamental decision — also drawing increased criticism — to try the self-confessed architect of the 9/11 attacks in a civilian court instead of a military tribunals. For the most part, the issue pits a Democratic administration against Republicans in Congress and national security-minded advocacy groups against civil liberties organizations. But doubts raised by some less ideological experts and even some liberals suggest that the question deserves careful consideration without being cast as a litmus test on the administration or the U.S. Constitution.
Attorney General Eric H. Holder Jr. sought to explain the decision in non-ideological terms in his prepared statement before the Senate Judiciary Committee on Nov. 18, a week after announcing the plan. KSM could be tried in a civilian court or a military commission, Holder said. He made the decision as a prosecutor, the attorney general said, based on “where the government will have the greatest opportunity to present the strongest case in the best forum.”
As he went beyond his prepared statement, Holder tried to reassure GOP senators about the risk of an acquittal. “Failure is not an option,” Holder said. The reassurance did little to neutralize criticism from the right but provoked tut-tuts from some nonpartisan experts about the apparent assumption of a predetermined outcome: verdict first, trial after.
The issue receded in the winter holiday season, but gained new traction with the administration’s decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber of flight 253, in civilian court too. Republican and conservative critics saw the decision as further confirmation that the administration naively views al Qaeda-inspired attacks on the United States as merely a law enforcement problem, not a war.
Civil liberties groups, including the bipartisan Constitution Project, defend use of civilian courts in part by pointing to the record. Nearly 200 terrorists have been successfully prosecuted in federal courts since 2001, they say, compared to only three so far in the military commission system set up at Guantanamo. In addition, they say the use of civilian courts showcases the U.S. legal system and denies accused terrorists the opportunity to depict themselves as victims of a sham proceeding.
Conservatives counter that accused terrorists will enjoy too many procedural rights in a civilian court and will use a federal trial as a soapbox for anti-American rants. The critique oddly disregards the rights granted the accused in the military commission system and denigrates federal judges’ ability to control a courtroom. But Benjamin Wittes, a scholar at the Brookings Institution who has tried to steer a nonideological course on these issues, says evidentiary and legal hurdles in civilian trials do carry a risk for successful prosecutions.
From a more liberal perspective, Stephen Vladeck, a professor at American University Law School in Washington, worries that courts will circumvent these problems in terrorism cases at the cost of degrading the criminal justice system for others. In any event, Vladeck says, KSM’s case logically belongs in the military tribunal. He is accused of war crimes — plotting an attack on civilian targets as a ranking al Qaeda leader — and was captured abroad by U.S. intelligence agents. If not for this case, Vladeck asks, what are the military commissions for?
The Obama administration may be shying away from the military commissions because of their dubious history. The Bush administration created them without adequate safeguards and housed them at Guantanamo with the intention of evading effective legal review. Yet Obama is not abjuring the use of military commissions altogether. At the same time, the administration is saying that roughly 50 Guantanamo detainees may be held indefinitely without any trial either in a civilian or military forum.
The administration may have a logic to these decisions, but it has yet to emerge. Steven Engel, a Washington lawyer who served in the Bush Justice Department, hints at a concern that the administration is simply manipulating the choice of forums: stronger cases showcased in civilian courts, weaker cases out of sight in military commissions.
KSM’s trial may yet be held in federal court, and his eagerness to claim credit for 9/11 may moot any concerns about the outcome. But the administration still needs to offer a better explanation of its legal strategy in what the president and Holder both acknowledge is a “war” against terrorism.
But the Obama administration is retreating from the decision to hold KSM’s trial in Lower Manhattan after New York City Mayor Michael Bloomberg, who had originally supported the plan, changed his mind. Bloomberg told reporters on Wednesday [Jan. 27] that a trial expected to last months if not years would disrupt the city, damage its economy, and cost up to $1 billion in security.
The White House initially stood its ground, but for less than 48 hours. By Friday, aides were saying the trial, scheduled to begin in September, would be moved — to a location yet to be determined. New York officials were relieved.
The relocation, however, leaves in place the more fundamental decision — also drawing increased criticism — to try the self-confessed architect of the 9/11 attacks in a civilian court instead of a military tribunals. For the most part, the issue pits a Democratic administration against Republicans in Congress and national security-minded advocacy groups against civil liberties organizations. But doubts raised by some less ideological experts and even some liberals suggest that the question deserves careful consideration without being cast as a litmus test on the administration or the U.S. Constitution.
Attorney General Eric H. Holder Jr. sought to explain the decision in non-ideological terms in his prepared statement before the Senate Judiciary Committee on Nov. 18, a week after announcing the plan. KSM could be tried in a civilian court or a military commission, Holder said. He made the decision as a prosecutor, the attorney general said, based on “where the government will have the greatest opportunity to present the strongest case in the best forum.”
As he went beyond his prepared statement, Holder tried to reassure GOP senators about the risk of an acquittal. “Failure is not an option,” Holder said. The reassurance did little to neutralize criticism from the right but provoked tut-tuts from some nonpartisan experts about the apparent assumption of a predetermined outcome: verdict first, trial after.
The issue receded in the winter holiday season, but gained new traction with the administration’s decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber of flight 253, in civilian court too. Republican and conservative critics saw the decision as further confirmation that the administration naively views al Qaeda-inspired attacks on the United States as merely a law enforcement problem, not a war.
Civil liberties groups, including the bipartisan Constitution Project, defend use of civilian courts in part by pointing to the record. Nearly 200 terrorists have been successfully prosecuted in federal courts since 2001, they say, compared to only three so far in the military commission system set up at Guantanamo. In addition, they say the use of civilian courts showcases the U.S. legal system and denies accused terrorists the opportunity to depict themselves as victims of a sham proceeding.
Conservatives counter that accused terrorists will enjoy too many procedural rights in a civilian court and will use a federal trial as a soapbox for anti-American rants. The critique oddly disregards the rights granted the accused in the military commission system and denigrates federal judges’ ability to control a courtroom. But Benjamin Wittes, a scholar at the Brookings Institution who has tried to steer a nonideological course on these issues, says evidentiary and legal hurdles in civilian trials do carry a risk for successful prosecutions.
From a more liberal perspective, Stephen Vladeck, a professor at American University Law School in Washington, worries that courts will circumvent these problems in terrorism cases at the cost of degrading the criminal justice system for others. In any event, Vladeck says, KSM’s case logically belongs in the military tribunal. He is accused of war crimes — plotting an attack on civilian targets as a ranking al Qaeda leader — and was captured abroad by U.S. intelligence agents. If not for this case, Vladeck asks, what are the military commissions for?
The Obama administration may be shying away from the military commissions because of their dubious history. The Bush administration created them without adequate safeguards and housed them at Guantanamo with the intention of evading effective legal review. Yet Obama is not abjuring the use of military commissions altogether. At the same time, the administration is saying that roughly 50 Guantanamo detainees may be held indefinitely without any trial either in a civilian or military forum.
The administration may have a logic to these decisions, but it has yet to emerge. Steven Engel, a Washington lawyer who served in the Bush Justice Department, hints at a concern that the administration is simply manipulating the choice of forums: stronger cases showcased in civilian courts, weaker cases out of sight in military commissions.
KSM’s trial may yet be held in federal court, and his eagerness to claim credit for 9/11 may moot any concerns about the outcome. But the administration still needs to offer a better explanation of its legal strategy in what the president and Holder both acknowledge is a “war” against terrorism.
Monday, January 25, 2010
The Roberts Court's Activist Blow for Corporate Speech
The Roberts Court’s decision to free corporations to spend unlimited amounts of their money in congressional and presidential campaigns is an undisputed instance of judicial activism and one of the least defensible in terms of judicial procedure, historical experience or public policy.
The Jan. 21 decision in Citizens United v. Federal Election Commission belatedly vindicates the conservative advocacy group's right to produce and distribute through video-on-demand the documentary hit piece Hillary: The Movie during the 2008 primary season. The FEC had barred the plan because some of the group’s financing had come from for-profit corporations. The corporate financing ran afoul of the so-called electioneering communications provision in the 2003 McCain-Feingold campaign reform law, which prohibited corporate or union financing of election-time campaign advertising on radio or TV.
In their ruling, the five-justice majority went beyond striking down that recently enacted federal law to throw out a 20-year-old precedent and the century-old premise of campaign finance permitting greater restrictions on corporations than on individuals. The conservative bloc fully understood the appearance of judicial overreaching in their decision. Between them, Justice Anthony M. Kennedy in the majority opinion and Chief Justice John G. Roberts Jr. in a concurrence devoted more than 30 pages to deny the suggestion.
The Court’s protestations that it had no choice may satisfy supporters of the decision, but less ideological observers are unconvinced. “There is such a long laundry list of other things they could have done,” says Barry Friedman, a law professor at New York University and author of the new book, The Will of the People, on the Supreme Court and public opinion. “They so clearly didn’t have to do what they did.”
Justice John Paul Stevens listed some of those narrower ways to have decided the case. Citizens United originally had not asked to strike down the electioneering communications provision, but only to get out from under it. The Court could have found, for example, that the provision did not apply to video on demand or that it did not apply to a not-for-profit corporation such as Citizens United as long as it received no or only minimal corporate funding.
As Stevens noted, that approach would have been consistent with Roberts’ own definition of judicial restraint. “If it is not necessary to decide more, it is necessary not to decide more,” Roberts has said and written both before and after his appointment as chief justice.
In his opinion, Roberts acknowledges the quote, but insists that in this case it was necessary to decide more. He and the other conservatives reach that conclusion only by exaggerating the impact of the provision. Repeatedly, they refer to the McCain-Feingold provision as a “ban” on political speech by corporations.
As Stevens notes, the provision only bars corporations (or unions) from using their own funds for campaign spending and only on radio or TV advertising close to an election. Even under the law, corporations or unions could form political action committees (PACs) to pay for election-time broadcast advertising. Kennedy is less than convincing in responding that forming a PAC is simply too much of a burden on political speech.
With an exaggerated view of the breadth of the law, Roberts responds tartly to Stevens that judicial restraint is not the same as “judicial abdication.” The point is well taken. On numerous occasions, the Court has gone beyond a narrow decision in a case to issue broad rulings to enforce constitutional rights. One example, directly pertinent here, is New York Times v. Sullivan, the landmark 1964 libel decision safeguarding a First Amendment right to criticize public officials (and, later, public figures).
In Sullivan, the Court could have held that the segregationist Alabama official who sued the Times over a political advertisement in the newspaper had no case because he was never named in the ad. The Court chose to go further and set a high, almost insurmountable barrier to libel suits by public officials. Undoubtedly, the justices were influenced by the larger stakes in the case. Sullivan’s suit — filed at the height of the civil rights revolution — showed how local juries in the South could chill national publications such as the Times in their coverage of the most important domestic issue of the day. The Times, in fact, was facing so many libel suits in Alabama that it withdrew its correspondents from the state for a while to avoid service of process.
Citizens United reached the Supreme Court with no comparable threat to political speech at hand. Whatever the five justices may think, most Americans do not believe that corporations need more outlets for their political views. Neither history nor current events suggest that corporations lack effective avenues to make their views known and heard despite the century-old ban on direct campaign contributions to federal candidates, the bans on campaign spending in about half of the states, or McCain-Feingold’s targeted restriction on direct corporate financing of radio and TV ads.
The effect of the Court’s decision remains to be seen. For now, the ruling is evidence that the conservative majority knows how to flex its muscles — and is willing to do so. Conservatives hope, and liberals rightly fear, that this will not be the last such occasion.
The Jan. 21 decision in Citizens United v. Federal Election Commission belatedly vindicates the conservative advocacy group's right to produce and distribute through video-on-demand the documentary hit piece Hillary: The Movie during the 2008 primary season. The FEC had barred the plan because some of the group’s financing had come from for-profit corporations. The corporate financing ran afoul of the so-called electioneering communications provision in the 2003 McCain-Feingold campaign reform law, which prohibited corporate or union financing of election-time campaign advertising on radio or TV.
In their ruling, the five-justice majority went beyond striking down that recently enacted federal law to throw out a 20-year-old precedent and the century-old premise of campaign finance permitting greater restrictions on corporations than on individuals. The conservative bloc fully understood the appearance of judicial overreaching in their decision. Between them, Justice Anthony M. Kennedy in the majority opinion and Chief Justice John G. Roberts Jr. in a concurrence devoted more than 30 pages to deny the suggestion.
The Court’s protestations that it had no choice may satisfy supporters of the decision, but less ideological observers are unconvinced. “There is such a long laundry list of other things they could have done,” says Barry Friedman, a law professor at New York University and author of the new book, The Will of the People, on the Supreme Court and public opinion. “They so clearly didn’t have to do what they did.”
Justice John Paul Stevens listed some of those narrower ways to have decided the case. Citizens United originally had not asked to strike down the electioneering communications provision, but only to get out from under it. The Court could have found, for example, that the provision did not apply to video on demand or that it did not apply to a not-for-profit corporation such as Citizens United as long as it received no or only minimal corporate funding.
As Stevens noted, that approach would have been consistent with Roberts’ own definition of judicial restraint. “If it is not necessary to decide more, it is necessary not to decide more,” Roberts has said and written both before and after his appointment as chief justice.
In his opinion, Roberts acknowledges the quote, but insists that in this case it was necessary to decide more. He and the other conservatives reach that conclusion only by exaggerating the impact of the provision. Repeatedly, they refer to the McCain-Feingold provision as a “ban” on political speech by corporations.
As Stevens notes, the provision only bars corporations (or unions) from using their own funds for campaign spending and only on radio or TV advertising close to an election. Even under the law, corporations or unions could form political action committees (PACs) to pay for election-time broadcast advertising. Kennedy is less than convincing in responding that forming a PAC is simply too much of a burden on political speech.
With an exaggerated view of the breadth of the law, Roberts responds tartly to Stevens that judicial restraint is not the same as “judicial abdication.” The point is well taken. On numerous occasions, the Court has gone beyond a narrow decision in a case to issue broad rulings to enforce constitutional rights. One example, directly pertinent here, is New York Times v. Sullivan, the landmark 1964 libel decision safeguarding a First Amendment right to criticize public officials (and, later, public figures).
In Sullivan, the Court could have held that the segregationist Alabama official who sued the Times over a political advertisement in the newspaper had no case because he was never named in the ad. The Court chose to go further and set a high, almost insurmountable barrier to libel suits by public officials. Undoubtedly, the justices were influenced by the larger stakes in the case. Sullivan’s suit — filed at the height of the civil rights revolution — showed how local juries in the South could chill national publications such as the Times in their coverage of the most important domestic issue of the day. The Times, in fact, was facing so many libel suits in Alabama that it withdrew its correspondents from the state for a while to avoid service of process.
Citizens United reached the Supreme Court with no comparable threat to political speech at hand. Whatever the five justices may think, most Americans do not believe that corporations need more outlets for their political views. Neither history nor current events suggest that corporations lack effective avenues to make their views known and heard despite the century-old ban on direct campaign contributions to federal candidates, the bans on campaign spending in about half of the states, or McCain-Feingold’s targeted restriction on direct corporate financing of radio and TV ads.
The effect of the Court’s decision remains to be seen. For now, the ruling is evidence that the conservative majority knows how to flex its muscles — and is willing to do so. Conservatives hope, and liberals rightly fear, that this will not be the last such occasion.
Monday, January 18, 2010
Conservatives Get Wide Strike Zone From High Court
The Supreme Court’s conservatives showed their activist side last week when they stopped a federal judge from allowing limited Internet streaming of California’s same-sex marriage trial to several other courthouses in the country. Besides its extraordinary nature, the intervention also shows the habit of the Roberts Court majority of viewing policy-laden factual disputes through an ideological lens.
The court based its unsigned, 5-4 decision on supposed procedural flaws in the decision by U.S. District Court Judge Vaughn Walker to allow live streaming of the challenge to California’s Proposition 8 to five other U.S. courthouses. With the trial set to begin Jan. 11, Judge Walker admittedly made some hasty mistakes in taking advantage of the Dec. 22 decision by the Ninth Circuit’s governing Judicial Council to permit broadcast of nonjury civil trials on a pilot basis.
As Justice Stephen G. Breyer pointed out for the dissenting liberal justices, however, the parties to the case, including the groups defending the state initiative that bars marriage for same-sex couples, had known since September of Walker’s interest in allowing broadcast of the trial if possible. And in the foreshortened notice-and-comment period, the court received more than 138,000 e-mailed comments on the plan, all but 32 of which favored transmitting the proceedings.
Against that backdrop, the high court’s decision to second-guess the trial judge turned on weighing the potential harms against the claimed benefits of wider accessibility of this nationally significant trial. The majority passed over the benefits in the 17-page decision, saying simply that no irreparable harm would result from limiting the opportunity to view the trial to a few hundred people in the San Francisco courthouse.
The claimed harms, however, got the conservative justices’ full attention. The anti-gay marriage forces claimed that some of their expert witnesses feared harassment if they had to testify with video cameras running. Some claimed they had already suffered harassment, even death threats, because of their opposition to same-sex marriage.
As Breyer pointed out in the dissent, the witnesses had already appeared on television or Internet broadcasts, toured California during the Proposition 8 campaign in 2008, and engaged in extensive public commentary on the issue. In the words of an applicable Supreme Court decision, they had become “public figures” by voluntarily thrusting themselves into the vortex of a public issue.
Breyer also noted that the vast majority of states — 42 out of 50 — and at least two federal district courts give judges discretion to permit full broadcast coverage of civil nonjury trials. Put differently, the trial quite likely would have been televised live if the suit had been filed in a California court. And, as Breyer stated, there is simply no empirical evidence after decades of experience that the presence of cameras adversely affects judicial proceedings.
For the contrary position, the majority pointed only to a concurring opinion in the court’s decision in 1965 that frowned on television coverage of trials. That decision, however, came in an era of bulky, obtrusive TV cameras. Video cameras used in courtrooms today are barely noticeable.
Supreme Court justices are notoriously camera-shy, of course, but the conservatives insisted they were making no judgment about cameras in the courtroom. Instead, they said they needed to step in to prevent the irreparable harm that “likely” would result from the limited video streaming of the trial. The opinion accepted the claim by some witnesses that they would refuse to testify if the trial were broadcast even though, as Breyer noted, none of the witnesses actually joined in petitioning the Supreme Court to intervene.
Gay rights advocates reacted with fears that the decision indicated the conservative majority’s predisposition against constitutionalizing same-sex marriage. Perhaps, perhaps not. At the least, however, the ruling showed that the conservative bloc — with little evidence — viewed this preliminary issue with more sympathy for the opponents.
The conservatives have betrayed their ideological sympathies in many other cases calling for careful consideration of policy-laden evidentiary disputes. In the most prominent example, Justice Anthony M. Kennedy conjured up fears of women suffering post-abortion trauma in the 5-4 decision in 2007 upholding the federal ban on so-called partial birth abortions. As Justice Ruth Bader Ginsburg pointed out in dissent, the evidence that women suffer psychological harm after abortions is flimsy at best.
A year later, Chief Justice John G. Roberts Jr. gave the back of the court’s hand to much stronger evidence from two Kentucky death row inmates that the current method of lethal injection creates a risk of inflicting unnecessary pain on the condemned during an execution. The majority, including two liberals, saw no reason to allow the inmates a full hearing on the issues before being put to death — irreparable harm, indeed.
In his confirmation hearing, Roberts likened the judge’s role to that of an umpire: calling balls and strikes but not defining the strike zone. All baseball fans know, however, that some umpires have a wide strike zone; others, not so much. For Roberts and the other conservatives, the strike zone in close cases appears to be wider on the side favoring ideologically conservative positions.
The court based its unsigned, 5-4 decision on supposed procedural flaws in the decision by U.S. District Court Judge Vaughn Walker to allow live streaming of the challenge to California’s Proposition 8 to five other U.S. courthouses. With the trial set to begin Jan. 11, Judge Walker admittedly made some hasty mistakes in taking advantage of the Dec. 22 decision by the Ninth Circuit’s governing Judicial Council to permit broadcast of nonjury civil trials on a pilot basis.
As Justice Stephen G. Breyer pointed out for the dissenting liberal justices, however, the parties to the case, including the groups defending the state initiative that bars marriage for same-sex couples, had known since September of Walker’s interest in allowing broadcast of the trial if possible. And in the foreshortened notice-and-comment period, the court received more than 138,000 e-mailed comments on the plan, all but 32 of which favored transmitting the proceedings.
Against that backdrop, the high court’s decision to second-guess the trial judge turned on weighing the potential harms against the claimed benefits of wider accessibility of this nationally significant trial. The majority passed over the benefits in the 17-page decision, saying simply that no irreparable harm would result from limiting the opportunity to view the trial to a few hundred people in the San Francisco courthouse.
The claimed harms, however, got the conservative justices’ full attention. The anti-gay marriage forces claimed that some of their expert witnesses feared harassment if they had to testify with video cameras running. Some claimed they had already suffered harassment, even death threats, because of their opposition to same-sex marriage.
As Breyer pointed out in the dissent, the witnesses had already appeared on television or Internet broadcasts, toured California during the Proposition 8 campaign in 2008, and engaged in extensive public commentary on the issue. In the words of an applicable Supreme Court decision, they had become “public figures” by voluntarily thrusting themselves into the vortex of a public issue.
Breyer also noted that the vast majority of states — 42 out of 50 — and at least two federal district courts give judges discretion to permit full broadcast coverage of civil nonjury trials. Put differently, the trial quite likely would have been televised live if the suit had been filed in a California court. And, as Breyer stated, there is simply no empirical evidence after decades of experience that the presence of cameras adversely affects judicial proceedings.
For the contrary position, the majority pointed only to a concurring opinion in the court’s decision in 1965 that frowned on television coverage of trials. That decision, however, came in an era of bulky, obtrusive TV cameras. Video cameras used in courtrooms today are barely noticeable.
Supreme Court justices are notoriously camera-shy, of course, but the conservatives insisted they were making no judgment about cameras in the courtroom. Instead, they said they needed to step in to prevent the irreparable harm that “likely” would result from the limited video streaming of the trial. The opinion accepted the claim by some witnesses that they would refuse to testify if the trial were broadcast even though, as Breyer noted, none of the witnesses actually joined in petitioning the Supreme Court to intervene.
Gay rights advocates reacted with fears that the decision indicated the conservative majority’s predisposition against constitutionalizing same-sex marriage. Perhaps, perhaps not. At the least, however, the ruling showed that the conservative bloc — with little evidence — viewed this preliminary issue with more sympathy for the opponents.
The conservatives have betrayed their ideological sympathies in many other cases calling for careful consideration of policy-laden evidentiary disputes. In the most prominent example, Justice Anthony M. Kennedy conjured up fears of women suffering post-abortion trauma in the 5-4 decision in 2007 upholding the federal ban on so-called partial birth abortions. As Justice Ruth Bader Ginsburg pointed out in dissent, the evidence that women suffer psychological harm after abortions is flimsy at best.
A year later, Chief Justice John G. Roberts Jr. gave the back of the court’s hand to much stronger evidence from two Kentucky death row inmates that the current method of lethal injection creates a risk of inflicting unnecessary pain on the condemned during an execution. The majority, including two liberals, saw no reason to allow the inmates a full hearing on the issues before being put to death — irreparable harm, indeed.
In his confirmation hearing, Roberts likened the judge’s role to that of an umpire: calling balls and strikes but not defining the strike zone. All baseball fans know, however, that some umpires have a wide strike zone; others, not so much. For Roberts and the other conservatives, the strike zone in close cases appears to be wider on the side favoring ideologically conservative positions.
Monday, January 11, 2010
Obama Taking Partisan Fire on National Security
The good will from President Obama’s inauguration lasted only as long as it took him to reaffirm his campaign pledge to close the Guantanamo Bay prison camp on his second full day in the White House. One year out, national security law remains a political battlefield, with Republicans and conservatives mounting partisan attacks grounded more in ideology than in evidence or reason.
The GOP critique depicts Obama as a feckless chief executive more interested in legal niceties than counterterrorism. Exhibit No. 1 is the decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber on Northwest flight 253, in federal court instead of before a military commission.
The criticism comes from such Bush administration alumni as former vice president Dick Cheney and White House political guru Karl Rove as well as sitting GOP officeholders. “We must treat these terrorists as what they are — not common criminals, but enemy combatants in a war,” said Sen. Christopher (Kit) Bond, the Missouri Republican and ranking member on the Senate Intelligence Committee.
One former Bush administration official, however, is OK with the decision: Robert Gates, secretary of defense in Bush’s last two years in office and held over in the post by Obama. Gates was reportedly consulted in advance of the Justice Department’s decision to prosecute Abdulmutallab and raised no objection.
The Republican critics appear blind to the poor record of the military commission system created up by the Bush administration _ either in intelligence-gathering or terrorist-prosecuting _ as well as its use of civilian courts to prosecute many suspected terrorists. Most specifically, in a case virtually identical to Abdulmutallab’s, the Bush administration prosecuted shoe bomber Richard Reid in federal court after his failed attack on a Boston-bound flight in December 2001.
Reid was indicted on eight terrorism-related counts in January 2002, pleaded guilty in October, and was sentenced to a life prison term that he is now serving in a maximum security prison within the United States. When reminded of this recent history, Republican critics can say only that the Bush administration made a mistake.
Attorney General Eric Holder says that Abdulmutallab similarly faces a possible life sentence if convicted under the six-count indictment that the government obtained on Jan. 6. Apart from any possible sentence, however, the Republican critics say that the administration has given up valuable leverage in obtaining useful intelligence from Abdulmutallab by vesting him with the legal rights of the criminal justice system _ including the right to a lawyer _ instead of the diminished procedural protections of the military commission system.
As the New York Times reporter Charlie Savage has pointed out, however, Abdulmutallab has the right to counsel in the military commission system under Supreme Court rulings that rejected the Bush administration’s efforts to bar federal court scrutiny of the system. In addition, the GOP critics disregard the likelihood that a defense lawyer will encourage, not discourage, Abdulmutallab to provide information to the government in the hope of getting some favorable consideration as the prosecution proceeds.
In any event, White House press secretary Robert Gibbs says the government did obtain “useable, actionable intelligence” before Abdulmutallab decided to stop talking once he was provided counsel. There is no public record from Reid’s case eight years ago that the Bush administration turned him before putting him into the criminal justice system.
Abdulmutallab’s training in an al Qaeda camp in Yemen opens a second target for Republican critics: Obama’s now deferred promise to close Guantanamo within a year. Yemenis comprise nearly half of the 200 or so detainees still held at Guantanamo. Some of the Yemenis already released have been returned to their home countries, including one who is now said to be the head of al Qaeda in the Arabian Peninsula. Inconveniently for the GOP critics, he was released on Bush’s watch, not Obama’s.
Obama, who had already been working to strengthen Yemen’s scrutiny of ex-Guantanamo detainees, promptly put a hold on any more releases to Yemen. Obama also quickly demanded and then released a review of how Abdulmutallab came to board a U.S.-bound flight, with explosives, despite the warning that U.S. diplomatic and intelligence personnel received from Abdulmutallab’s father, a respected Nigerian banker.
The report disclosed “human” and “systemic” failures ranging from a misspelling of Abdulmutallab’s name to a delay in sending a cable about the interviews with his father. The mistakes occurred down in the federal bureaucracy, but Obama personally assumed responsibility for them. By contrast, Bush was slow to acknowledge any Oval Office oversight in failing to pick up on pre-9/11 warnings from the intelligence community of a possible attack from al Qaeda.
Politics, it is often said, stops at the water’s edge. The adage is perhaps honored more in the breach than in the observance, and thus it has been for Obama’s first year in office. Still, even seasoned political observers may cringe at the degree of partisanship from Republicans toward a Democratic administration that has Abdulmutallab locked up and a crash program under way to plug the holes in the airline security system that allowed him to board flight 253 in the first place.
The GOP critique depicts Obama as a feckless chief executive more interested in legal niceties than counterterrorism. Exhibit No. 1 is the decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber on Northwest flight 253, in federal court instead of before a military commission.
The criticism comes from such Bush administration alumni as former vice president Dick Cheney and White House political guru Karl Rove as well as sitting GOP officeholders. “We must treat these terrorists as what they are — not common criminals, but enemy combatants in a war,” said Sen. Christopher (Kit) Bond, the Missouri Republican and ranking member on the Senate Intelligence Committee.
One former Bush administration official, however, is OK with the decision: Robert Gates, secretary of defense in Bush’s last two years in office and held over in the post by Obama. Gates was reportedly consulted in advance of the Justice Department’s decision to prosecute Abdulmutallab and raised no objection.
The Republican critics appear blind to the poor record of the military commission system created up by the Bush administration _ either in intelligence-gathering or terrorist-prosecuting _ as well as its use of civilian courts to prosecute many suspected terrorists. Most specifically, in a case virtually identical to Abdulmutallab’s, the Bush administration prosecuted shoe bomber Richard Reid in federal court after his failed attack on a Boston-bound flight in December 2001.
Reid was indicted on eight terrorism-related counts in January 2002, pleaded guilty in October, and was sentenced to a life prison term that he is now serving in a maximum security prison within the United States. When reminded of this recent history, Republican critics can say only that the Bush administration made a mistake.
Attorney General Eric Holder says that Abdulmutallab similarly faces a possible life sentence if convicted under the six-count indictment that the government obtained on Jan. 6. Apart from any possible sentence, however, the Republican critics say that the administration has given up valuable leverage in obtaining useful intelligence from Abdulmutallab by vesting him with the legal rights of the criminal justice system _ including the right to a lawyer _ instead of the diminished procedural protections of the military commission system.
As the New York Times reporter Charlie Savage has pointed out, however, Abdulmutallab has the right to counsel in the military commission system under Supreme Court rulings that rejected the Bush administration’s efforts to bar federal court scrutiny of the system. In addition, the GOP critics disregard the likelihood that a defense lawyer will encourage, not discourage, Abdulmutallab to provide information to the government in the hope of getting some favorable consideration as the prosecution proceeds.
In any event, White House press secretary Robert Gibbs says the government did obtain “useable, actionable intelligence” before Abdulmutallab decided to stop talking once he was provided counsel. There is no public record from Reid’s case eight years ago that the Bush administration turned him before putting him into the criminal justice system.
Abdulmutallab’s training in an al Qaeda camp in Yemen opens a second target for Republican critics: Obama’s now deferred promise to close Guantanamo within a year. Yemenis comprise nearly half of the 200 or so detainees still held at Guantanamo. Some of the Yemenis already released have been returned to their home countries, including one who is now said to be the head of al Qaeda in the Arabian Peninsula. Inconveniently for the GOP critics, he was released on Bush’s watch, not Obama’s.
Obama, who had already been working to strengthen Yemen’s scrutiny of ex-Guantanamo detainees, promptly put a hold on any more releases to Yemen. Obama also quickly demanded and then released a review of how Abdulmutallab came to board a U.S.-bound flight, with explosives, despite the warning that U.S. diplomatic and intelligence personnel received from Abdulmutallab’s father, a respected Nigerian banker.
The report disclosed “human” and “systemic” failures ranging from a misspelling of Abdulmutallab’s name to a delay in sending a cable about the interviews with his father. The mistakes occurred down in the federal bureaucracy, but Obama personally assumed responsibility for them. By contrast, Bush was slow to acknowledge any Oval Office oversight in failing to pick up on pre-9/11 warnings from the intelligence community of a possible attack from al Qaeda.
Politics, it is often said, stops at the water’s edge. The adage is perhaps honored more in the breach than in the observance, and thus it has been for Obama’s first year in office. Still, even seasoned political observers may cringe at the degree of partisanship from Republicans toward a Democratic administration that has Abdulmutallab locked up and a crash program under way to plug the holes in the airline security system that allowed him to board flight 253 in the first place.
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