The Politics of Gitmo

by Deborah Pearlstein

Cross-posted at Balkinization

This is a post about politics, not law. How could it be otherwise in engaging the public debate these days over the chronic cluster of post-9/11 terrorist detention, interrogation and trial issues? Demagoguery by Mitch McConnell and his Republican cohort over the Administration’s exactly right and entirely unremarkable decision to bring criminal charges against would-be underwear bomber Umar Farouk Abdulmutallab is, as others have pointed out, well and fully divorced from the facts. (According to the Attorney General’s detailed statement, Abdulmutallab provided detailed and useful intelligence. He will now spend the rest of his life quietly in jail following a trial so fair that it will succeed in increasing the likelihood that our allies will cooperate with us in identifying the next Umar Farouk Abdulmutallab.) The position staked out by Lindsay Graham et al. favoring military commissions over federal criminal trials for the Gitmo detainees we plan to charge with wrongdoing as the “best way to render justice, win this war and protect our nation from a vicious enemy,” is not especially more coherent. Among other things, after 8 years, the commissions have convicted 3 defendants, 2 of whom are already back on the streets. In the same time, according to NYU, the criminal justice system has pursued 800 terrorism prosecutions with a conviction rate of 90%. The new and improved commission process is certain to generate just as much litigation as the last one – and commission defendants will enjoy a host of potentially powerful defenses to their prosecution they won’t have in criminal trials. And odds are not insubstantial that if we decide to “render justice” that way, we’ll still be rendering it another 3 years from now (the next time folks take a good look at the Commander in Chief).

On the other side, proponents of criminal trials have done a nice job of highlighting the many factual – and common sensical – deficiencies in the Republican case. See, e.g., here. They’re getting great at rapid response. But they’ve not mounted much (or any) of a sustained counteroffensive in the political messaging game. In part, one might argue, that’s not the job of advocacy organizations whose endlessly important missions are to promote human rights, protect the rule of law, and defend the persecuted. They serve a critical function, but resources are scarce, and countering fact-free politicking just doesn’t make the cut. (Although as they all know, it’s tough to gain any factual foothold with even the fact-interested members of Congress as long as the political winds are whipping around as fast as they are.) And then there’s the problem of appetite; hard for them to launch a campaign to defend any aspect of what the Administration is attempting to do (viz. some criminal trials) when there are so many things they think the Administration is otherwise doing wrong (viz. some continued detention). In any case, one could imagine the pro-law-enforcement case might be more effectively, more persuasively waged by, say, the enforcement community, the Law & Order folks who should (and it seems are) chomping at the bit to show America and the rest of the world how justice is done. But they have appropriate professional constraints of their own to worry about. Not to mention other jobs to do.

Which brings us to the Democratic administration in office – the group that holds the popular majority, both houses of Congress, the White House, and the dazzling messaging apparatus that goes with it. But it’s hard to have a coherent much less dominating message when talking out of all sides of the mouth. It is not news that the Obama Administration seems to have been struggling for some time with internal divisions on these issues. And to be fair, the number of internal constituencies the President has to deal with is daunting: The Pentagon (which has plenty of smart and rights-interested people in it, along with a deeply vested institutional interest in seeing the next round of military commissions they’ve worked on for 8 years go forward with more earned respect than the last round); the intelligence community (which faces an unimaginably difficult task, which is ever burdened with building a new (intel collection) car while they’re trying to drive it, and whose collective ego has been toughened by decades of being regularly beaten around the head); and the Justice Department/FBI (which undoubtedly has turf interests of its own, but is generally trying, best as I can tell, to prosecute terrorists and get them off the streets).

Then there’s the White House itself, which has seemed to resent having to deal with the current Bush-induced mess so much, they don’t want to talk about it until absolutely forced – forced by an uprising in Congress against bringing any Gitmo detainee to the United States ever, by an about-face by the New York City community it ostensibly consulted, by a sustained political assault by the other side far more coherent and unified than any vision the Administration has put forward. The resentment is both entirely appropriate, and completely beside the point. As it turns out, the I-don’t-want-to-talk-about-it approach has been effective only in ensuring that the Administration has been compelled to spend the year so far talking about it constantly. Trying to shunt these issues off to the side, or address them in a single speech, has not worked. And it won’t work going forward. These issues – terrorism, the threat of terrorism, domestic cases, foreign detentions, actual trials, etc. – are going to be in the news every day from now til the next election, and the opposition has every incentive to ensure that they stay there. An offensive strategy seems in order.

The Administration needs – has long needed – two things: (1) A settled policy on these issues, and (2) An affirmative, consistent, aggressive message on counterterrorism security that is understood and embraced by the whole Administration team (DOJ, DOD, CIA, WHO). On the first, and despite the unbelievable complexity of all this, the Administration has been lining up the decisions and knocking them down. I was very much in favor of the new Administration thinking things through carefully with the task force process, and I am far less critical than many about its plan to resolve Gitmo by some combination of trials, releases, and (in a small number of cases, we’re not yet able to evaluate which) continued detention. I haven’t, and I’m sure I won’t agree with every move, but criminal trials are obviously the right course whenever it’s possible. Have them in some distant hamlet in a different zip code if Manhattan has had enough, but as the President and Eric Holder have said all along, they’re the best bet whenever possible (as it surely is with KSM). Rethinking that now (as, it is reported, is the President, seemingly in response to the pure politics of Lindsay Graham) backtracks on progress made in the painstaking process of policy development.
It also only serves to underscore the Administration’s failure to move forward (or, it seems, in any direction) on the second item – an affirmative message on security, repeated and elaborated daily, geared toward the constituencies that need persuading to make the policy possible (say, the districts of members of the President’s own party), and deployed on a strategically useful playing field (as opposed to one mandated by, say, Dick Cheney’s appearance on TV).

Candidate Obama was characteristically eloquent on the topic of security. He was also relentless: “You don’t defeat — you don’t defeat a terrorist network that operates in 80 countries by occupying Iraq…. If John McCain wants to follow George Bush with more tough talk and bad strategy, that is his choice, but that is not the change that America needs. We are the party of Roosevelt. We are the party of Kennedy. So don’t tell me that Democrats won’t defend this country. Don’t tell me that Democrats won’t keep us safe. The Bush-McCain foreign policy has squandered the legacy that generations of Americans, Democrats and Republicans, have built, and we are here to restore that legacy.”

As messages on Gitmo go, that seems like a fine place to start.

4 Responses

  1. There are two separate and distinct points of national interest in dealing with a captured terrorist such as underwear bomber Umar Farouk Abdulmutallab.  They are:

    (1) To obtain intelligence from the individual
    (2) To incapacitate the individual such that he poses no further threat to the United States

    It is simply the case that, in the criminal justice mode of dealing with such persons, (1) and (2) are in conflict.  

    I don’t think this is a debatable proposition.  If we accord such individuals the right to remain silent and the right to the presence of an attorney during questioning, then, presuming we follow procedures, we are going to lose some intelligence.

    Umar Farouk Abdulmutallab is a member of a Yemeni terrorist franchise about which reportedly know little.  The public record does not preclude the possibility that, by dealing with Abdulmutallab as we did, we lost valuable time-sensitive intelligence on the Yemeni al Qaeda organization – an organization that clearly has been plotting against the United States.

    Now, there may strong arguments for dealing with an Abdulmatullab under a criminal law enforcement paradigm.  But let’s not lose sight of the fact that the conflict between incapacitation and intelligence-gathering in that case is both real and potentially very significant.

  2. What little we have seen of the Military Commissions shows a dedicated group of judges who take their job very seriously handing down carefully reasoned rulings based on the law. Every ruling is subject to appeal if you disagree with the decision. Yet instead of letting the process continue, politically motivated critics of the Bush administration ran to the courts to block all the cases based not on anything that had actually happened, or any knowledge of how things would happen, but based on allegations of what might happen if the military judges were to perform their tasks improperly.

    Now these same critics assert that the main reason for using civilian courts instead of military commissions is to avoid all the litigation about commissions that they themselves created. This is the real example of “Demagoguery” (to borrow a word from the post).

    Politics, for the party out of power, means opposition. Unfortunately, American politics seems to mean obstruction rather than reasoned criticism and this applies equally to both parties.

    What is unfortunate about this particular exchange has been a complete lack of thought and reasoned argument. For one thing, it seems that neither side has ever bothered to listen to the opening of Law & Order before the “bong”. There are two phases to the criminal process, an investigation and then a prosecution. The investigation could be by police, FBI, or by military intelligence. The prosecution could be in civilian court, before a military commission, or before a full Court Martial.

    A reasoned, objective analysis that informs the public about law and policy would point out that these two phases are independent. We have seen many recent examples of enemy combatants who were first captured and interrogated by the military, but then were turned over to the civilian criminal justice system and successfully tried. You cannot use anything they say during such interrogation during trial, but if you already have enough evidence (as is certainly the case here) you don’t need it.

    What is often missed is that some of these detainees were Mirandized. Jose Padilla, for example, was arrested and Mirandized at O’Haire airport, then held by the FBI in the criminal justice system with a lawyer for a month, then subject to military detention and interrogation for years, then released and successfully prosecuted using evidence that had been gathered before he was ever arrested. Judges are smart (including military judges). They know the law and the constitution and during trial they enforce the rules and prevent any improper evidence from being introduced.

    Politicians and political commentators, however, are not satisfied that the systems (civilian and military) can take care of themselves. Republican demagogues list as if they were fact all the terrible things they imagine can follow if KSM is brought to the US for a civilian trial, just as liberal demagogues once litigated as if inevitable all the terrible things they imagined might happen if KSM were to face a military trial.

    What is lacking on both sides (and in the current administration position) is a clearly articulated criteria for making one choice or the other. It is clear that the type of trial does not determine the type of investigation, so if what you are looking for is military intelligence on Yemeni terrorist infrastructure, you can get it and still have a civilian prosecution. Nor is security a rational question, since while a Federal judge cannot go to Guantanamo for a trial, nothing clearly prevents trial on a US domestic military base. There are some differences in rules of evidence, but there is nothing in any of the prominent cases where these particular rules seem to matter.

    The administration decides that some will be repatriated, some will be given civilian trials, some will be given military commission trials, and some will be detained as enemy combatants (and they will not articulate the criteria they used to decide which is which).

    Curiously, if you read the previous sentence it expresses the position of both the Bush and Obama administration. It instantly elicits howls of mindless fury from the other party and ideologically driven critics. Problem is, other than the fact that in one case it was a Republican and in the other case it is a Democrat, I cannot find any clearly articulated public policy difference to justify either the criticism (other than for being vague) or the flip flop of roles from supporter to critic.

    The problem with American politics is not just that it is polarized. The problem is that it is devoid of any serious analysis, argument, and debate. While the British debate issues before a full House, Americans use 30 second sound bites and, when someone speaks in Congress, the wide angle view shows that the House is empty and nobody is listening. So debate is “dumbed down” to the lowest common denominator and this is what you get.

  3. I think it is pretty obvious that this Administration’s willingness to play nice with the torturers of the last Administration has got them into this fix.  If you have a principle then prosecute.  The sustained attack is from persons who enthusiastically supported the torture and tried to set up these bogus military commissions to make sure their deeds could not see the light of day in public scrutiny.  Darius Rejali would call this classic in democratic states that torture.  Clintonian triangulation will not work.

    As for New York and the KSM trial, declaiming about the evil but not being willing to confront it in the justice system in one’s city where the crime occurred seems really wimpy.  KSM’s lawyer didn’t even have to make a motion to change venue.  Amazing!


  4. This cross-posting type approach to a topic is an interesting development for the blogspace part of online influence space. 

    At one place comments are not on while at the other comments are on is a form of structuring the spaces that I also find of interest. 

    Here is an article I did on this that just came out entitled Online Influence Space(s) and Digital Influence Waves: In Honor of Charly at 25 Ohio St. Journal on Dispute Resolution 201-246 (2010).

    Banning people is another structural hidden hierarchy.


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