Does Anyone Deserve Constitutional Rights?
A decision to try Khalid Sheikh Mohammed (KSM) and four others in federal court in New York has sparked a new round of debate over detention policy. The Administration is on course to maintain a three-tiered system: criminal prosecutions for some detainees in U.S. federal courts, prosecutions of others before a revamped Military Commission, and indefinite detention for still others who can neither be tried nor released. There are problems with this ad hoc framework, some of which are derived from the need for a comprehensive policy to replace the failed and flawed executive unilateralism under which it was developed. Congress and courts have put their belated mark on some aspects of the policy, but we continue to operate broadly within its confines.
One of the contributing authors of the failed executive unilateralism criticizes the Obama Adminstration’s decision to prosecute KSM in New York because “The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism.” Criminal trials must be very harmful activities if they will “cripple” U.S. anti-terrorism efforts. How will they do that? Writing in the WSJ, John Yoo argues: “Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown.” The openness required by criminal trials is the purported harm. Why would this prosecution be any more harmful that the prosecution of Jose Padilla or Zacharias Moussaoui, for example, or Ahmad Omar Abu Ali for that matter? The criticism repeats as its primary evidence of harm an unsubstantiated claim regarding intelligence losses that occurred because of the prosecution of Sheikh Omar Abdel Rahman for the 1993 World Trade Center bombing. No doubt, care will have to be taken in how the U.S. prosecutes its case, but the alarmist claim that anti-terrorism will be “crippled” belies credibility. This issue, however, is not the only one Yoo raises, and not the one that primarily interests me.
He further claims: “Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights?” He then asks a series of additional questions about pre-trial procedure in a “war zone.” As bad as revealing U.S. intelligence sources may be, “even more harmful” would be the requirement that U.S. officials recognize that terrorism suspects have rights, such as the right to be free from coerced (tortured) confession. Focusing on Miranda is telling, since Yoo was instrumental in providing the legal authorization for U.S. torture practices. Here we get at the heart of the “war versus crime” dichotomy motivating critics like Yoo: “KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens. …” Or, any person within the jurisdiction of the U.S., an important point Yoo still fails to recognize. The “war on terror” was said by Alberto Gonzales to be a “new kind of war” rendering “quaint” some of the rights afforded by the Geneva conventions. This temperament carries over to hostility to granting terrorism suspects constitutional rights in criminal trials, but fails to articulate how adherence to constitutional and human rights norms can themselves be “even more harmful to our national security.” How is it even remotely plausible to claim that if U.S. personnel must conduct themselves in rough conformity to constitutional (and by implication, human rights) norms, even greater harm to our national security will occur? In making this claim, Yoo reveals that one motivation for the “new kind of war” model is the attempt to free U.S. officials from certain constitutional and human rights constraints. Freedom from legal constraint may have its pragmatic advantages, at least in the short run. This mistaken view is one reason executive unilateralism has led in the long run to an ad hoc detention policy, repaired in part only after the Supreme Court held that detainees were in fact protected by Geneva and were in fact entitled to U.S. court jurisdiction.
Untethered from an institutionally unrealizable executive unilateralism, there does not seem to be much purpose in reasserting a need for officials to act free from constitutional and human rights constraints. So why do we see this view reappear as a reason why criminal trials of terrorists cause “even more harm” to national security?
There seems to be implied or underlying claim about moral desert. This thought appears in a statement attributed to Sen Lindsey Graham, who sought (and failed) to have Congress forbid federal court trials of 9/11 suspects. He claimed that “terrorists don’t deserve the same constitutional rights as U.S. citizens.” Why not? Any person we seek to punish criminally for heinous acts against U.S. persons, places, or interests “deserves” the protections afforded by a society dedicated to the rule of law. Since Sen. Graham advocates the use of Military Commissions, he is not claiming that terrorists don’t deserve any legal protections—just not robust constitutional ones. If this is correct, then for me it is an entirely new claim that does not depend on issues of military necessity, territoriality, trial pragmatics, or national security. It depends on a judgment that persons accused of terrorism deserve something less than robust criminal procedure protections. It also has a remote and troubling relation to national security.
What could serve as the basis for such a judgment? It does not seem to be based on a genuine worry that there is much risk that the prosecution might fail. Experience in other terrorism trials instructs quite the opposite. Neither Sen. Graham nor Mr. Yoo makes this clear, but they seem to rely on a judgment about the nature of the acts perpetrated by terrorists. Are some acts so heinous that by their very nature, they morally “deserve” to be punished by less robust rights-protecting procedures? I can see that for pragmatic purposes, different criminal acts may lead to differing needs to seek punishment in ad hoc tribunals or military commissions which may afford alternative procedures. But to my knowledge special tribunals do not establish differing degrees of rights-protections based on moral judgments about the nature of the underlying criminal acts over which they sit in judgment. Ordinarily, questions of moral desert occur both before and after a trial—in judgments about which acts to criminalize and how severe to punish them—not in decisions about trial procedure itself, nor in decisions about who receives basic human rights protections. Thus, the underlying view is not only that we are engaged in a “new kind of war” facing a new kind of enemy whose very warlike actions are illegal, but those actions are of a kind morally deserving of a lesser legal process.
I think this view mistaken. I also see no reason to think that precluding this type of moral judgment harms national security—quite the opposite. Procedural protections are not, nor should they be, grounded in prior judgments of moral desert. To go down this path is to go down the path of varying human rights protections based on moral judgments about who deserves them. On this score, we make no further distinctions than to say that if anyone deserves them, we all do.