On Sunday, the Washington Post dropped many a jaw with a powerful editorial (“Questioning Suspected Terrorists”) that beseeched the paper’s champion, President Obama, to rethink his detention and interrogation practices. The opening passages were positively startling, taking the reality of war as a given (it has been anything but) and rebuking the administration for its consistent resort to civilian judicial processes that are not a suitable response:
It has become accepted wisdom that the United States is engaged in an unconventional war against terrorist forces. Yet the Obama administration’s response to attempted acts of domestic terrorism has been consistently conventional: Suspects are apprehended, perhaps questioned under a public-safety exception to Miranda rights and then read their rights hours later and charged in a civilian court. This was the pattern followed with the Nigerian man accused of trying to blow up an airplane over Detroit on Christmas Day and with Faisal Shahzad, the U.S. citizen charged with trying to detonate a car bomb last weekend in New York’s Times Square.
We do not join the chorus of critics insisting that all suspected terrorists be treated as enemy combatants. The law enforcement model, including prosecution in civilian courts, has been a powerful and time-tested tool. Federal courts should be the preferred venue for U.S. citizens. But it gives us pause that the administration has not given more consideration to other approaches, including the possibility of designating suspects as enemy combatants to allow for lengthier interrogations, which could yield intelligence to thwart terrorist operations and future attacks.
A quibble: There is not, nor has there ever been, a “chorus of critics insisting that all suspected terrorists be treated as enemy combatants.” As I’ve noted before, this is Obama administration spin. Instead, there is a chorus of critics insisting that actual enemy combatants be treated as enemy combatants. We must correct this misimpression. It obscures the consensus building against the administration’s bull-headed insistence on returning to the failed pre-9/11 law-enforcement model.
Because I was a civilian terrorism prosecutor and now support military detention and trial for enemy combatants, I am often asked why I am supposedly “against prosecuting terrorism cases in civilian courts.” But I am not against all — or even most — such prosecutions. Indeed, I’ve urged aggressive use of the “material support to terrorism” laws (which President Obama wants to water down), and I’m quite certain a Justice Department operating under my conception of post-9/11 enforcement would prosecute more civilian terrorism cases than does the current Justice Department. The debate here is not about whether there should be civilian terrorism cases. There should be lots of them. The debate is about how to handle a single category of offender, the most significant category: members of the enemy forces who, during a time of war in which Congress has authorized military force, plan and carry out mass-murder attacks against the United States.
With respect to this category, the Post correctly observes that the Obama administration is simply wrong in contending that U.S. law bars the detention of an American citizen (such as would-be Times Square bomber Faisal Shahzad) as an enemy combatant. The Constitution permits it, and the Supreme Court’s Quirin and Hamdi cases affirm it. As I recounted here, Attorney General Eric Holder’s argument that the Padilla litigation undermines these precedents is disingenuous.
The Post is also right to suggest that suspected enemy combatants be designated as such so we can cull all the intelligence they are in a position to provide before they are turned over to either the civilian or military justice systems for trial. (I’ve made the same suggestion, for example, here and here). It’s especially welcome, moreover, to find the Post encouraging Congress to enact a preventive-detention system, a proposal I’ve made, for example, here. As the Post’s editors put it:
Lawmakers and the White House should work together to craft a more rational structure — modeled after systems in place in Israel and several European countries — that allows mining of intelligence and does not force the suspension of interrogations once an imminent threat is ruled out. For example, the government would have a set number of days to question terrorism suspects; it would have to advise a federal court of its interrogation, but public notice of the suspect’s detention could be withheld so as not to tip off possible conspirators. Interrogators would be bound by all domestic and international strictures against torture and cruel and inhumane treatment. Once the interrogation time period expired, the government would have to decide whether to move forward with a federal court prosecution or a military commission. In rare cases, the government should have the flexibility to hold a suspect who is deemed too dangerous to release but against whom there is not enough evidence to prosecute in either venue; such cases would be subject to periodic judicial review.
Charles Krauthammer made a characteristically excellent case on NRO Friday for (a) treating enemy combatants as enemy combatants and (b) making Miranda’s public-safety exception work more predictably and sensibly in terrorism cases processed through the civilian justice system. Several years ago, I proposed the creation of a national-security court to deal with the surveillance, detention, and trial of our terrorist enemies. Similarly, in 2007, current Obama deputy solicitor general Neal Katyal joined Harvard’s Jack Goldsmith, former chief of the Bush DOJ’s office of legal counsel, in calling for the creation of a national-security court to oversee what they called “a comprehensive system of preventive detention.” Analogous arguments have been made by John O. McGinnis, Ben Wittes, Columbia’s Matthew Waxman, and Rutgers law dean John Farmer Jr.
There are many more examples. Former Attorney General Michael Mukasey has written trenchantly (most recently, in a pamphlet for Encounter’s Broadside series) regarding the incongruities of applying peacetime judicial processes to the operations of an enemy that flouts the laws of war. Marc Thiessen’s important book Courting Disaster makes the same points. In Preemption: A Knife that Cuts Both Ways, Alan Dershowitz wrote compellingly on the need to develop a legal framework for preventive detention and preemptive war that is suitable to our modern threat environment. In Men in Black, Mark Levin explored the constitutional underpinnings of wartime detention. In a series of post-9/11 books (most recently, Not a Suicide Pact — The Constitution in a Time of National Emergency), Judge Richard Posner considered our legal and policy architecture for counterterrorism and found them in need of revamping. Former Vice President Dick Cheney has eloquently defended the Bush administration’s shift of counterterrorism thinking from investigation and prosecution to intelligence and prevention.
These commentators, among many others who’ve weighed in, don’t agree among themselves on exactly how we should balance liberty and security. In fact, they’d vigorously debate where the due-process lines should be drawn. But their ideological diversity underscores that detaining our terrorist enemies and obtaining the intelligence necessary to protect our nation should not be sloughed off as more of the same Right vs. Left divide. Detention and interrogation are imperatives acknowledged by thoughtful people concerned about our security, irrespective of their ideological leanings.
Iran aside, the Obama administration has not been incapable of reconsidering its most ill-advised national-security policies. Guantanamo Bay is still up and running, as are military commissions. Enemy combatants are being detained without trial not only at Gitmo but in Afghanistan and Iraq. The president reversed the Justice Department (and, I suspect, himself) on what would have been a disastrous release of classified photos. The brakes, at least for now, have been put on the ill-conceived civilian trial of the 9/11 plotters. And the president has not wavered in attacking terrorist sanctuaries in Pakistan and Yemen — no judicial warrants or appeals to the Security Council: Just do it. With Obama’s record of walking back much of his ill-considered rhetoric, it ought to be possible for his administration to rethink its insistence on returning the most perilous aspect of the war, the treatment of enemies who would attack our citizens in our homeland, exclusively to the domain of civilian judicial processes.
That rethinking would cause fireworks in Obama’s left-wing base. So here’s hoping the persuasive nudge from an administration ally, the Washington Post, makes this security necessity a political possibility.
– Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America, to be published by Encounter Books on May 25, 2010.