Austin Bramwell November 23rd, 2009
Bumper-stickering: That’s the wonderful verb Jack Goldsmith and Jim Comey, two former Bush administration lawyers, use to describe how movement conservatives reacted to the decision to try Khalid Sheik Mohammed in Federal district court. Eric Posner made similar points earlier on the Volokh Conspiracy. In brief: the government has to do something with its jihadist detainees. Each option — trial in Federal court, trial before a military commission, indefinite detention — has its advantages and disadvantages. Where the government’s evidence against the accused is sufficiently strong, however, it makes sense to seek conviction in a tribunal whose legitimacy is not in doubt, whose procedures are well-established and whose reliability is rarely questioned — namely, an Article III Federal court. In prosecuting KSM in district court, Eric Holder made a reasonable (and possibly the best) decision under the circumstances.
The Obama administration’s decision to give Khalid Sheikh Mohammed and other 9/11 plotters a civilian trial in New York is both alarming and depressing. We sometimes speak of “the 9/10 mentality”: and this is a perfect expression of that mentality. George W. Bush said he wished to banish the days of treating Islamofascist terrorism as a law-enforcement problem; John Kerry campaigned in 2004 signaling a desire to return to those days; he was defeated; but the next Democratic nominee was elected — and here we go.
Nordlinger’s slogan, “Terrorism is Not a Law Enforcement Problem” is correct in one obvious sense: terrorism can’t be adequately prevented solely by bringing prosecutions in Article III Federal courts. Notice, however, how Nordlinger takes this truism, which should remind us that the government should use all means available to stop terrorism, and turns it around to argue that some means should in fact not be used. In the name, I suppose, of shoring up the “war on terror” metaphor, the conservative movement actually wants to deny the government one proven way to put away jihadists.
Goldsmith and Comey don’t come out and say it, but the Bush administration’s botching of detention policy is part of what makes the case for prosecuting KSM in Federal district court so compelling. The Bush administration only very belatedly sought Congressional approval for its detention policies, and then only in response to a
string of
humiliating defeats in Federal court. Its stubborn attachment to the “He-man”
theory of executive power — which holds that the Executive branch can pretty much do anything in the War of Terror whether the other branches like it or not — succeeded only in making it more difficult to settle the status of jihadist detainees. As Goldsmith and Comey note, the military commissions system created under Bush has produced only three convictions in eight years. It will take several more years for the Obama administration, Congress and the courts to sort out the mess that the Bush administration left behind.
Meanwhile, of course, according to the Justice Department’s May 30, 2005 “torture”
memo, the Bush administration water-boarded KSM 183 times. Like it or not, the abuse of KSM undermines the credibility of any military commission. We should count ourselves fortunate has to have a Federal judiciary with enough good reputation to cleanse any conviction of KSM of the taint of illegitimacy.
Ironically, Nordlinger is a persistent
critic of bumper sticker politics. “Blue-state” conservatives have to put up with a lot of hostile and thoughtless sloganeering. That’s what makes Goldsmith and Comey’s neologism so pointed: they are accusing movement conservatives of doing exactly they claim to despise. Contrary to bumper-stickerers everywhere, not every decision by the other side is an obvious outrage.
I still can’t get over the fact that in what is supposed to be a conservative publication KSM is seen has the innocent victim. Second, Eric Holder and a lot of his boys were acting has lawyers for the jolly fellows at Guantanemo and have conflicts of interest. This is Obama playing to world politics over American security.
“Bumper Sticker Politics” pretty clearly describes the modern conservative movement’s approach to every issue. Whatever the question, the answer is always “Not what Liberals want”, because that’s all the crazy base wants to hear.
Gets you elected in Republican Primaries, but as a national electoral strategy, it shot its bolt dragging Georgie-Boy over the 50% mark in 2004. Since then all its done is lose the GOP votes and push the likes of Limburgh, Beck and Palin into leadership positions.
Not good news for conservatives.
Bumper stickers are not acceptable substitutes for thought. We are reaping the whirl wind of fanning the pop-cons’ flames of fear.
The summary I am seeing is that LIBERAL GOOD; you can’t be called Lib because you are intellectually superior to even them; and that all people you disagree with are mindless followers of demagogues.
Funny, that’s the same way we talk about you, when conservatives get together.
I should note that Andrew McCarthy responds to Goldsmith and Comey here: http://article.nationalreview.com/?q=MTc1NWQyYjdhYWQ2MWViNWI2OTc3YWRhYTBhNWNiNjc=.
This post takes a contrarian point of view and has the courage to defend in a conservative blog a position that goes against the majority view among conservative commentators. I salute the author for this.
There are two parts to this post. The first part provides a good, succinct, summary of the arguments outlined in two articles in support of Holder’s decision (“Why has Holder decided to try Khalid Sheikh Mohammed in a civilian court?” by Eric Posner and “Holder’s reasonable decision” by Jim Comey and Jack Goldsmith). My only criticism is that I would have liked to see from the author a critical analysis of his sources rather than just a summary of their views. As we will see later, such an analysis may have led the author to a different conclusion.
The second part is weaker, because in it the author broadens his criticism of the “bumper-stickerers” who have come out against Holder’s decision into a far too vitriolic attack against the Bush administration’s war on terror.
In this response I will first provide my critical analysis of the author’s two sources which is lacking in this post; then I will comment on the author’s peroration against the Bush administration.
Eric Posner dismisses as irrelevant two criticisms of Holder’s approach, i.e. that “KSM and others will take over proceedings and use them for propaganda purposes” and that “secrecy will be compromised”. Why are those concerns irrelevant? Eric Posner’s answer is that the DOJ will decide on a case-by-case basis and opt for military commissions if those concerns are serious. This is putting a lot of faith in the Attorney General and ignoring political motivations. In this instance it is not being unreasonable or “bumper-stickering” to hold the view that the DOJ failed the test. It was always clear that a high profile terrorist such as KSM would use the stage of a civilian court to put the US and its war against terror on trial. In fact one of his lawyers is already boasting on television about his intention to engage in such antics. As for the risk of having to compromise secrecy, the trial of Ramzi Yousef (the “blind sheikh” responsible for the first attack against New York’s World Trade Center) should not give comfort to Eric Holder.
Jim Comey and Jack Goldsmith state that KSM can respond to three descriptions: “an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the U.S. criminal code.”
The question is: which of these three labels describes KSM most accurately and therefore what is the most appropriate method to prosecute him? The evidence tilts the balance decidedly towards the first two rather than the third. It is a stretch to say that a foreign enemy combatant who has perpetrated war crimes and was captured on foreign soil “is answerable in federal court for violations of the US criminal code” (even though his most prominent crime was perpetrated in the US, it was conceived and directed from abroad). In fact, as Senator Lindsey Graham pointed out during Eric Holder’s deposition in front of the Senate Judiciary Committee, no enemy combatant captured on foreign soil has ever been brought to justice in a US federal court. The first label is problematic because there will never be a clear end to the conflict against terror and it is not politically tenable to detain someone indefinitely without trial. Logically, therefore, KSM seems to best fit the second description of “war criminal subject to trial by military commission under the laws of war”.
Comey and Goldsmith cite the poor record of the military commission system established in November 2001, which “secured three convictions in eight years”. But Eric Holder’s mention of this record when he announced his decision is disingenuous because he was one of the lawyers who most diligently constructed legal challenges that delayed the implementation of this system.
Comey and Goldsmith state that one reason for these challenges is that “changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the [military] commissions’ validity”. No evidence is presented for this assertion. The authors would help their case if they explained what those changes are and how they have put in question the validity of military commissions.
Another weakness in the authors’ argument is that, just like Eric Posner, they gloss over the negatives of using a civilian court. No mention is made of the leak of classified information that occurred during the trial of Ramzi Yousef, which helped Osama Bin Laden. And, again, Comey and Goldsmith provide no evidence for their assertion that “in terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant’s ability to raise irrelevant issues and tightly controlling the courtroom”. They agree with the “bumper-stickering” critics that the Moussaoui trial was a circus, but they fail to mention that he was finally indicted only because he eventually decided to plead guilty.
This record would indicate that civilian courts, just as Comey and Goldsmith say of the military commissions, are “learning to walk” when it comes to trying Jihadists. In this light, it is a weak argument in support of Holder’s decision to say that civilian courts are to be used when the State has a strong case against the defendants because they are more credible than military commissions and that the latter should be used only if the evidence is relatively weak and an indictment in a civilian court would not be assured.
One last comment. Some critics of Holder’s decision may deserve the label of “bumper-stickerers”, but I definitely would not put in this category Charles Krauthammer, Bret Stephens and others who have published well thought-out criticisms.
I will now address the blogger’s views on the Bush administration’s handling of the detention of Jihadists. According to these views, “the mess that the Bush administration left behind” is the result of too much testosterone (“an excessive attachment to the He-Man theory of executive power”) and pig-headedness (“The Bush administration only very belatedly sought congressional approval for its detention policies, and then only in response to a string of humiliating defeats in Federal courts”).
It is disingenuous (and somewhat redolent of “bumper-stickering”) to attribute these reasons to the “mess” of Guantanamo. Obama has vouched to clean up this “mess” in his eagerness to appease the most radical fringe of the Democratic Party and to please his many fans among European sophisticates (this, among other things, earned him, to use a Mark Steyn quip, the “Nobush Peace Prize”) only to realize that it is messy to fight a war against Jihadists and that it is very difficult to close down Guantanamo, because it is the least bad alternative. The mess is more the result of difficulties intrinsic to the war on terror rather than of any clear shortcomings in the handling of this war by the Bush administration.
The Bush administration’s delay in seeking congressional approval for its detention policies may be simply due to the time it took for the legal challenges they encountered to work themselves in the courts and perhaps also to excessive confidence on the part of its lawyers that they would eventually win their case. There are also good reasons (I believe anchored in the Constitution) to leave to the executive branch the decisions on the methods to wage a war (once this war has been approved by Congress).
Obama campaigned by presenting himself as the antithesis to Bush. It is striking that he continues to do so ten months into his presidency. The public will have less and less patience with this and will soon judge him on his personal accomplishments.
One can perhaps excuse on the grounds of political expediency the vilification of Bush by liberal Democrats. It is much more difficult to understand why Conservatives would engage in the same pastime.