Criminal Prosecutions and Another Kind of Precedent
Friday saw the former Attorney General, John Ashcroft, who helped orchestrate placing the supposed “worst of the worst” at Guantanamo, repeat the same two arguments others have made against federal trials of terrorism suspects: they pose a risk of revealing key intelligence and they increase the risk of another terrorism attack. The first argument has little traction in light of past experience in prosecuting terror trials, prosecutorial discretion in presenting evidence, and judicial administration of the trial. The trial of Ahmed Khalfan Ghailani is instructive. An increased risk of attack has also been repeated as an argument against terrorist detentions in the United States. How would detaining or prosecuting terrorism suspects in the United States somehow increase the terror threat? Is there any evidence of this? Is the alternative to keep the detainees in Guantanamo, with the hope that terrorist groups might ignore the fact that they are detained by the United States? Such a claim seems wildly implausible. To the extent that U.S. detention practices are widely known, there seems to be no reason to think that detentions and prosecutions at Guantanamo versus detentions in Illinois, for example, alter the risk that terrorists would target the U.S. If the overall desire and capabilities of terrorists to strike U.S. targets would not change merely because of the location of detentions or prosecutions, perhaps it would alter the targeting of a potential attack. This form of NIMBYism seems based on a highly speculative premise (and a dubious moral claim). No doubt, fear is easily manipulated to motivate officials into avoiding even a speculative, and at best marginal, increased risk of attack. But this kind of fear-mongering fails to present a good reason not to prosecute terrorist suspects in U.S. courts.
If the arguments lack merit, why the orchestrated effort to repeat them?
Precedent. If the Obama Administration preserves the war model largely intact, then future administrations will be able to argue the necessity of the model. The prior Administration argued that war on terrorism was a new kind of war, requiring new, largely unilateral executive, approaches to detention and trials. Former administration officials have also criticized the move away from authorizing “harsh interrogation” (torture), claiming that it will endanger national security. Again, presumably to preserve the viability and necessity of such tactics for the future. If, however, the Obama Administration successfully prosecutes KSM and other alleged war criminals detained at Guantanamo in civilian courts, then the necessity of maintaining a more exclusive military court is undermined. No doubt, the Attorney General has not rejected the use of Military Commissions. One can only speculate that a likely reason for prosecuting some detainees in Military Commissions is to take advantage of relaxed rules for admitting evidence. But maintaining a separate system to allow forum shopping, while perhaps justified by the pragmatics of terrorism-related detention and trial, requires more nuanced justifications than do more general assertions of executive power to conduct war. Such a pragmatically mixed criminal-war model also invites continued cooperation and intervention by Congress.
Torture overshadows the debate over choice of law and jurisdiction. One of the reasons why the Administration may need to forum shop is the manner in which evidence was obtained. Even then, prior treatment of detainees can be a problem in the Military Commissions, as we see regarding the torture of al-Qahtani. Even as civilian trials of detainees such as KSM will weaken the claim that an entirely separate war model is necessary for the detention and trial of terrorism suspects, it will work to establish another precedent. Torture, as in the case of waterboarding KSM 183 times, will have no legal consequences. Because the Attorney General likely has a strong case independent of any information obtained through torture, the defense will never have an occasion to argue against the admission of evidence in violation of the Fifth Amendment or due process. No involuntary statements or “shocks the conscience” claims will arise without contested evidence to admit. Thus, U.S. officials are free to torture and still obtain federal court convictions. Prohibitions against torture will operate like the Fifth Amendment requirement of Miranda warnings: ignore them when it is advantageous. Under the Fifth Amendment, because physical fruits of unwarned statements can be admitted, and because later cures to initially unwarned statements are possible, law enforcement has many incentives to ignore Miranda. Likewise, where war crimes prosecutions for the perpetrators of torture are politically vexed (to say the least), and constitutional protections do not apply unless the prosecution seeks to introduce tainted evidence, U.S. officials lack any trial-related incentives not to torture for interrogational purposes in the future. Moreover, absent the prospect of war crimes prosecutions for torture, unlike Fifth Amendment or due process violations, no alternative civil remedies, such as a Bivens action, have been held to be available against the perpetrators. (See the D.C. Circuit opinion in Rasul here, which denies detainee’s Bivens claims for their mistreatment while in detention because no constitutional rights apply to aliens detained abroad, and because even if they did, qualified immunity would apply).
My point in discussing these two potential lines of precedent is to recognize something of a catch-22 here and a common remedy. Although civil trials for Guantanamo detainees will go a long way to disestablishing the claim that “war on terror” detainee trials before Military Commissions are (always) necessary, they do so by continuing a trend that already includes the prosecution of Jose Padilla in which federal courts ignore background interrogational practices. These practices rely on other kinds of precedents—congressional and executive constraints on interrogations—to remove the practical temptation to torture. (I’m generally a fan of certain uses of pragmatism). Thus, like Eric Holder’s decision to try KSM in federal court, the responsibility for disestablishing the necessity to torture lies in the discretionary decisions of the Obama Administration. Successful criminal prosecutions of detainees, like successful legally-compliant interrogations, will go a long way to establishing practical and policy precedents that should work to constrain the actions of future administrations. Ironically, the cure for the hangover of executive unilateralism involves more executive branch discretionary decision making. The political fragility of that discretion, as well as the precedential stakes, explains in part why former Bush Administration officials publicly ply obviously bad arguments.