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Enemy Combatants, Not Criminal Defendants



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Marc has already made a lot of the points I’d like to make in his response to Josh Marshall.  Let me just make a few others.

It’s remarkable to hear Obama’s apologists defend him on the ground that he’s simply doing what Bush did when Obama’s appeal for most of them was that he was the anti-Bush. But, in any event, it wasn’t just Richard Reid. The Bush administration also turned John Walker Lindh and Zacarias Moussaoui over to the criminal justice system. These decisions were what are known in the biz as mistakes.

I was still at DOJ when Reid and Lindh were disposed of, but I was very critical of the decision to prosecute Moussaoui in civilian court — often calling him the “poster child for military commissions.” On many panels I was on at the time, Bush critics pointed to the disparate treatment of Moussaoui and Padilla — the first an alien combatant apprehended in the U.S. but given a civilian trial, the second an American citizen apprehended in the U.S. but made an enemy combatant. They argued that the administration’s standards were incoherent and arbitrary. I thought there was a lot of persuasive force to that contention. But the mistake — as the eventual trial showed — was treating Moussaoui as a criminal defendant, not treating Padilla as an enemy combatant.

Admittedly, I’m predisposed to be sympathetic to Bush, but here I think it’s warranted. These cases happened very close to 9/11. I was still in government, so I know we were scrambling. The November 2001 executive order authorizing the military commissions did not get them up and running. That took time — and the Defense Department had to do it while trying to fight a war. The Justice Department circa 2001-03 was thus in a very strong position to argue that it had significant experience handling terrorism cases while DoD still hadn’t gotten its act together. That was true, and remember that Reid and Lindh pled guilty, so the cases were basically over before you knew they were on.  But Justice vastly overrated its ability to control the amount of intelligence that the courts would order disclosed in the Moussaoui case. It was a circus, and if he hadn’t pled guilty it might have been a disaster. 

Now, however, we have eight years of experience, including the cautionary Moussaoui tale. There are no longer any excuses; the right answer is obvious:  If preventing terrorist attacks is our priority, we have to be in a law-of-war rather than a criminal-justice model.

This should not be hard to swallow: President Obama occasionally acknowledges that we are nation at war, and Congress has overwhelming authorized the use of force against al Qaeda and its confederates. If we capture an al Qaeda operative, the default position must be that he is an enemy combatant. We can then detain and interrogate him without the interference of a defense lawyer. Defense lawyers shut down effective interrogation — any competent defense lawyer will tell you that, and Michael Ratner, the head of the leftist Center for Constitutional Rights that has coordinated representation from the combatants, has flatly admitted that a goal of interposing lawyers is to prevent the government from being able to interrogate the detainees.

Enemy combatants should be tried by military commission, but even if the President insists that he wants the civilian courts to be his default system for prosecution, that does not mean they have to be his default system for detention.  As the cases of Padilla and al-Marri demonstrate, holding a combatant as an enemy combatant, even for a period of years, is not a bar to eventual prosecution in the civilian system.

Detention in the civilian system not only shuts down intelligence collection; it empowers the terrorist and helps his confederates. A terrorist submitted to the criminal justice system immediately after arrest must be brought to court and have counsel assigned promptly — generally, within six hours. As a defendant, the terrorist is empowered because once he has counsel and a case to fight, he realizes he has cards to play — he is incentivized to hold back the most critical, fresh, operational intelligence in order to pressure the prosecutors into dropping charges, dropping the death penalty, and agreeing to various other accommodations. His confederates are empowered because the discovery provided for his criminal case, and then the public trial, provide a window into what the government knows about the enemy.

By contrast, military detention — which the Supreme Court reaffirmed in the 2004 Hamdi case — allows us to take our time, months or years if necessary, to create the atmosphere of isolaton and dependence needed for thorough-going interrogation.  Even after the detainee’s current, operational intelligence is exhausted and stale, we can continue going back to him to help us identify newly discovered players and break the code on newly discovered plots.  (Insiders know much more about how al Qaeda works than government agents, and they usually remain valuable resources for years.) Plus, postponing discovery and trials denies al Qaeda valuable intelligence about our state of knowlege, methods of intelligence gathering, and sources of information.

The law of war framework maximizes our ability to prevent terrorist attacks while maintaining our ability to prosecute at the time and in the system of our choosing — rather than according to the rigors of the civilian system’s Speedy Trial Act. Adopting it would enable President Obama to prioritize his first responsibilities — protecting the nation and fighting the war — without compromising his important but subordinate interest in prosecuting war criminals.

That is, it’s a no-brainer.



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