Thu 15 May 2008 05:51
We urgently need a new system for War on Terror detainees
These are dark days for prosecution of the War on Terror.
The troop surge has routed al-Qaeda in Baghdad, and the measurable security improvement gives hope for stable political arrangements. Yet whether an American ally will emerge from such a settlement, if it happens, is highly questionable, and our satisfaction over the denial of a safe haven to al-Qaeda in its former Iraqi redoubts is tempered by the jihadist resurgence in Pakistan’s lawless northwest border region.
It is at home, however, that the war — the very need to prosecute it as a war — is truly besieged. No issue makes that clearer than Guantanamo Bay. The brute fact is that, regardless of who is elected president in November, the naval base’s days as a detention center are numbered.
Camp Delta, the Gitmo facility where our armed forces still hold about 350 alien enemy combatants, is probably the most scrutinized prison in modern history. It is also among the most humane, complete with halal meals, a bursting library, lush recreation facilities, communal prayer breaks, and even white-gloved U.S. soldiers — Muslims only, please — delivering to each detainee a Koran (U.S. government–issued, even though the inmates believe it commands them to kill Americans). The popular narrative portraying the facility as a rampant human-rights violator is a slander (unless one accounts for the assaults by jihadists against the MPs who guard them). Gitmo has produced mostly actionable intelligence, enabling analysts to identify terrorists, map their networks, trace their funding channels, and save American and European lives.
The narrative, however, endures. Gitmo is totemic of the post-9/11 determination to treat the international jihadist threat as a war rather than a series of mere crimes. It is the law of war in action. That venerable code, in stark contrast to civilian judicial procedures, holds that captives may be detained indefinitely without trial — both to glean intelligence and to deplete enemy resources, purposes that tend toward the civilized goal of a faster end to war’s miseries. But as an emblem of the war paradigm, Gitmo is the hottest of hot buttons for an angry, post-sovereign Left — the transnational progressives who insist that there is no war at all, that international terrorists pose a nuisance fit for management by civilian courts, and that, in any event, America has only itself to blame for an onslaught by disgruntled Muslims.
A FAILURE OF COMMUNICATION
Even as it has defended Gitmo, the communications-challenged Bush administration has failed to make the public case that its wartime detention policy has been an intelligence coup. Instead, fretting over “our reputation in the world” (primarily in tyrannical Muslim countries and European nanny states that swoon over human rights while abdicating responsibility for their own defense), Condoleezza Rice and Robert Gates have pushed for closure. Not to be outdone, Colin Powell declares that the place should have been shut down “yesterday.” Barack Obama and Hillary Clinton, embroiled in a down-to-the-wire nomination contest, have naturally adopted the Gitmo Gospel according to MoveOn.org. Most dismaying, however, is the presumptive Republican nominee. Castigating Gitmo and linking it rhetorically with improper interrogation tactics and prisoner abuse (controversies that actually center on CIA “black sites” and Abu Ghraib, not Gitmo) is not enough for John McCain; he insists he “would announce that we were closing Guantanamo Bay and moving those prisoners to Fort Leavenworth, Kansas.”
For his part, President Bush has repeatedly said he would like to close Gitmo but cannot responsibly do so without a Plan B. And therein lies the quandary. It has been nearly seven years since the commencement of U.S. military operations in Afghanistan. It has been apparent for nearly as long that our current approach is unsustainable, that we desperately need a new system for detaining and trying captured terrorists in a war that will continue for decades. Yet we are still without Plan B.
Gitmo, the Left claims, is a “legal black hole.” To be sure, the whole point of establishing a detention center on sovereign Cuban territory, outside the jurisdiction of the U.S. courts, was to avoid the judicial usurpation of a key aspect of war-fighting. That was entirely consistent with jurisprudence that has recognized broad executive discretion regarding the detention and trial of enemy combatants. In point of fact, while the courts have occasionally pulled the rug out from under the administration (for example, finding, under a dubious de facto–control analysis, that Gitmo is American territory and thus subject to judicial intrusion after all), the core problems with Gitmo are political, not legal.
In 2004, the Supreme Court reaffirmed that enemy operatives — including traitorous American citizens — may be detained without trial, as millions of war prisoners have been throughout our history. In 2006, even as it invalidated the military-commission trials authorized by the president, the Court indicated that such tribunals would pass muster if given legislative imprimatur. Congress promptly enacted the Military Commissions Act (MCA), which paved the way for commission trials and detention proceedings (called Combatant Status Review Tribunals, or CSRTs) to proceed, with a significant innovation: After appeals were exhausted in the military justice system, combatants would be permitted to seek review in the U.S. Court of Appeals for the D.C. Circuit (and, ultimately, the Supreme Court) — the first time in history that enemy prisoners have been given systematic access to American civilian courts.
As a matter of law, then, Gitmo seems to be on solid footing. That could change drastically. We are awaiting a decision in the Supreme Court’s most important case of this term, Boumediene v. Bush, in which alien combatants are claiming U.S. constitutional rights — first, habeas corpus (the premise for claiming that, despite the MCA, military tribunals are inadequate) and, ultimately, the same full-blown trial rights enjoyed by the American citizens they are trying to kill. It was the Supreme Court, however, that besought Congress to intervene in the detainee thicket. Congress having obliged, one hopes the Court will respect its resolution — particularly when, in the unlikely event that the system’s multiple layers of military and civilian appeals yield unjust results, the justices would be able to address those on a case-by-case basis.
No, Gitmo’s demise is driven by politics, domestic and international.
NEW WAR, NEW COMBATANTS
Much of the explanation is cultural. Modern American society is deeply influenced by legal elites. It is made uncomfortable by the specter of potential innocents being held for years without having their day in court. And potential innocence is inherent in the ambiguity that haunts this new kind of war.
For the most part, prior conflicts involved honorable enemy combatants: soldiers who hewed to the laws of war. They wore uniforms, carried their weapons openly, and generally refrained from targeting civilians. To the contrary, our current enemies blend into the civilian populations they target for sneak attacks. It is counterintuitive — and, from a broad perspective, unjust — to reward their barbarism with legal rights that are never extended to honorable combatants. Yet, as a practical matter, unless caught in flagrante delicto, the unlawful-combatant terrorist presents doubt about whether he is really a terrorist — unlike, say, the captured Nazi soldier, who was unmistakably clad and fighting as such.
The public’s immediate post-9/11 ardor has ebbed, as it was sure to do. We don’t like terrorists any better, but as the atrocities recede in our memory, we are naturally more sympathetic to the plight of the captive: claiming his innocence yet jailed indefinitely, with no prospect of compelling the government to justify his detention. His claims may be implausible, but the press dutifully reports them, frequently without the damning facts that would undermine them. Witness the case of Canadian jihadist Omar Khadr, tirelessly described as a frightened teenage detainee, with scant mention of the American medic he killed and the others he maimed by tossing a grenade at them on the battlefield.
Of course, our standard mechanism for resolving doubt is the judicial trial. Gitmo critics argue that we successfully tried terrorists in the federal courts throughout the 1990s and should do so again. It’s a proven formula to which, they maintain, we should return.
Despite its surface appeal, this contention is a hanging curveball that by now should have been slammed out of the park. While I am very proud to have prosecuted terrorists in the 1990s, the strategy can be considered a success only if one’s chief preoccupation is due process. Viewed through the prism of national security, the effort was an abysmal failure.
Yes, every apprehended terrorist was convicted. In eight years, however, only 29 operatives, most of them low-level, were captured and tried. Between the bombing of the World Trade Center in 1993 and its destruction on 9/11, American targets were plotted against and attacked with increasing audacity by an enemy that was growing ever larger. But because of the criminal justice system’s high evidentiary hurdles and procedural rigor, it could not have handled many more cases than the paltry number it processed — cases that invariably took years to complete, at a cost of untold millions (including the expense of securing courthouses, holding facilities, and trial participants). When one considers that we’ve frequently taken out more than 29 terrorists in a single day of combat since 9/11, it becomes easier to see the weaknesses of the justice system as a counterterrorism tool — and to understand how we’ve avoided a reprise of 9/11.
FROM THE HOUSETOPS
The terrorism prosecutions, furthermore, were an intelligence banquet for radical Islam. The imperative of neutralizing terrorists who are sure to kill again if acquitted induces prosecutors to charge their cases broadly, maximizing the admissibility of damaging evidence. Broad charges, however, translate into bottomless obligations to disclose sensitive information in the government’s files — to say nothing of the trial itself, at which top informants and valuable surveillance efforts are exposed, rendering them useless for future intelligence-gathering. Even if al-Qaeda had somehow managed to develop a spy agency, it could never have come close to acquiring the trove of intelligence we provided gratis through our prosecutions.
The biggest factor making civilian trials untenable, though, is that the most important evidence is almost always inadmissible by its very nature. Much of the information that shows how Americans are imperiled by the Gitmo detainees comes from two sources: interrogations and intelligence from foreign services (our own intelligence assets being appallingly poor in places where the threat to us is gravest). No matter how reliable they may be, the fruits of Gitmo interrogations would be inadmissible in civilian criminal trials — not because of “torture,” as the demagogues are quick to assume, but because this information was not elicited with Miranda protections, such as the assistance of taxpayer-funded lawyers. Similarly, foreign intelligence cannot be used in court, however great our confidence in its accuracy. It generally comes to us as hearsay (reports of what sources said, not testimony from the sources themselves), provided on the assurance that it will not be exposed publicly — an assurance whose betrayal would be the death of cooperation from countries that have the eyes and ears we lack.
This explains why it was anticipated that only a small fraction of the Gitmo detainees — less, probably significantly less, than 20 percent — would ever face commission trials for war crimes. A war is not a crime wave. Protecting a nation entails neutralizing many more hostile actors than can be proved guilty beyond a reasonable doubt in military trials, let alone civilian trials. Even with the military’s relaxed due-process requirements, it has always been obvious that many more captives would be held than tried.
The law of war allows for incapacitating dangerous operatives based on the commander in chief’s assessment of classified or inadmissible intelligence. The criminal justice system does not; defendants must be tried. Unlike democracies such as Israel and Great Britain, with their histories of confronting international terrorism, the U.S. does not permit even limited preventive detention outside of war. If the Gitmo detainees are no longer deemed alien enemy combatants, if Plan B becomes civilian prosecution, then most of them will have to be released, regardless of how much danger they pose.
Civilian criminal prosecution, then, is a non-starter. Once made aware of its downsides, the American public is likely to accept something with less-elaborate due process, provided the outcomes have integrity. We want to be confident that we are not indefinitely detaining innocent people, and we’ll accept the military system if it is shown to work and inspire that confidence.
THE BEST OF BOTH WORLDS
The problem with the military system lies in international politics. The fact that such tribunals — whether CSRTs or commission trials — pass muster under American legal principles is cold comfort. Like it or not, if we are to keep radical Islam on the defensive, we need the enthusiastic cooperation of other nations. Those nations, especially in Europe, have decided that Guantanamo Bay flouts Western values because military tribunals are bereft of an independent judicial check — besides bringing charges, the executive branch is judge, jury, and jailer/executioner.
They are wrong, of course. The military justice system is an honorable one, superior to the justice systems of many American states — to say nothing of other countries. Indeed, lawyers quip that while the guilty are better-off in the civilian system, an innocent has a better shot at acquittal in a military court. And even if that were not the case, the MCA, as noted above, does provide for civilian-court review. No matter. International opinion, especially in Europe, snickers that Gitmo justice is a unilateral executive-branch show where even the death penalty, that bane of bien-pensant existence, can be imposed without judicial oversight.
International Gitmo-paranoia is driven by Bush Derangement Syndrome, infecting countries that, truth be told, are singularly unhelpful at moving prisoners out of Camp Delta despite their carping about its existence. We cannot, however, afford to ignore this particular tantrum. If we cannot try terrorists in our custody, we will need foreign cooperation in relocating them. More important, most jihadists who threaten America will continue to do so from overseas. If we do not have a system to which foreign countries are willing to extradite terrorists, we will effectively have outsourced our national security to toothless nations that are far less interested in it than we are.
The War on Terror does not readily fit either the military or the civilian judicial paradigm. It is a novel conflict that calls for a novel solution. The best one would be a special national-security court, a brand-new system specifically designed to have jurisdiction over important legal components attendant to the war.
For detention and trial, such a system would borrow heavily from military procedures, which allow for narrow charges, less onerous discovery requirements, the protection of national-defense information, and extensive questioning of detainees prior to the assignment of counsel (since once counsel enters a case, interrogation ends — something we can afford in the criminal justice system, where the goal is prosecution, but not in wartime detention, where the goal is intelligence). The proceedings, however, would be presided over by federal judges, not military judges.
Conservatives instinctively recoil at the thought of expanding the judicial reach, but this is an expansion that makes sense, because it involves what judges do singularly well, and what the military has proved unable to do — namely, move proceedings along to their conclusion. An independent judicial check will quell our allies’ squawking and make the system acceptable to them. The danger, of course, is that judges might make up the law as they go along, naturally ratcheting up due-process requirements because they are trained for the task of providing justice, not balancing due process with the demands of national security. Congress, however, can avoid that pitfall by writing exacting rules for national-security-court proceedings and installing a presumption against judicial legislating.
Our lawmakers, unfortunately, have shown little stomach for this task. The burden of drafting procedural rules would make them accountable: They would have to say what rights they believe accused terrorists should be granted and what rights they should be denied. That process would be fraught with political risk. It’s easier to let the president, the military, and the courts wrestle with the nuts and bolts of detainee cases. Meanwhile Congress grandstands over interrogation methods, confinement conditions, and legal procedures but avoids offering an alternative.
The time for abdicating responsibility is over. Gitmo will surely be closed, and soon. But the problem of what to do — now and in the future — with captured terrorists who mean the American people severe harm is not going away. Working together, the political branches responsible for our security can design a new justice system that meets the unprecedented challenges of this war. If they default, the judiciary — the politically insulated branch with no national-security mandate — will dictate due-process standards ad hoc. And in very short order, we will be back to the 1990s, relying on civilian court procedures to protect us — with the same results.