Importance of the Brennan Speech (II)

by Marty Lederman

The first part of John Brennan’s speech, as I explain below, is an explication of the Administration’s understanding of the U.S. armed conflict with al-Qaida and its co-belligerents, the legal constraints governing our use of force, and the self-imposed parameters of the government’s use of force outside of “hot battlefields.”  That is to say, it is a description of the way in which the U.S. can and does use military force to counter one part of the terrorist threat–that presented by al-Qaida and other groups associated with al-Qaida with which we are engaged in armed conflict.

The remainder of the Brennan speech is largely devoted to arguing that it is not only unhelpful and inaccurate, but in fact counterproductive, to view the entirety of counterterrorism efforts through the lens of the use of military force, of “war.”  For this reason, the Administration is strongly opposed to several current efforts in Congress to require the use of military means in contexts that would be contrary to historical practice (including in the Bush Administration), where other means have been and continue to be much more appropriate and effective.  I can’t put this point much better than Juliette Kayyem recently made it, in a column that presages the details that John Brennan described last night:

[O]n the 10th anniversary of 9/11, there has been much talk of how the war on terror, at home and abroad, has kept us safe. . . .  This telling requires a sleight of hand and a lot of forgetfulness.  It equates the Obama administration’s use of the military through drone attacks and special operations as an extension of Bush’s “war.”  But narrowly targeted military strategies to combat specific threats are not the same as the global war on terror that we lived under during the Bush administration.

So, it’s time to set the record straight:  The war on terror is over.  To still call the effort to dismantle, kill, and disrupt Al Qaeda and its affiliates the war on terror is to treat the United States and its government as frozen in time.  It assumes that there has been no learning, no growth, no recognition of mistakes, no priority shifts, no advancement in capabilities. It assumes time has stood still.

It has simply not been more of the same. The CIA’s “black sites”–secret prisons in other countries–are closed.  Enhanced interrogation is outlawed.  The laws of war have been restored.  Guantanamo remains open not because Obama wants it that way, but because Congress has barred the expenditure of funds to bring its prisoners to the United States for trial.

Thus, to pretend that there has been no rejection of what came before–of what defined the “war”–is a mistake.  It took court decisions, public opposition, congressional changes, new leaders within the Bush administration, and finally a new president to end the war on terror as we knew it.

And the effort was worth it.  Because we got better.

Brennan’s speech is largely devoted to sounding similar themes.  “I am deeply concerned,” he said, “that the alternative approach to counterterrorism being advocated in some quarters would represent a drastic departure from our values and the body of laws and principles that have always made this country a force for positive change in the world.  Such a departure would not only risk rejection by our courts and the American public, it would undermine the international cooperation that has been critical to the national security gains we have made.  Doing so would not make us safer, and would do far more harm than good.  Simply put, it is not an approach we should pursue.”

With particular respect to the matters of detention and prosecution, these are the highlights, which are hardly in need of elaboration or explanation:

— “The prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.  For all of the reasons mentioned above, we will not send more individuals to the prison at Guantánamo.  And we continue to urge Congress to repeal [the statutory] restrictions and allow our experienced counterterrorism professionals to have the flexibility they need to make individualized, informed decisions about where to bring terrorists to justice and when and where to transfer those whom it is no longer in our interest to detain.”

— “It’s been suggested that getting terrorists to talk can be accomplished simply by withholding Miranda warnings or subjecting prisoners to so-called ‘enhanced interrogation techniques.’  It’s also been suggested that prosecuting terrorists in our federal courts somehow impedes the collection of intelligence.  A long record of experience, however, proves otherwise.  Consistent with our laws and our values, the President unequivocally banned torture and other abusive interrogation techniques, rejecting the claim that these are effective means of interrogation.  Instead, we have focused on what works. . . . Claims that Miranda warnings undermine intelligence collection ignore decades of experience to the contrary. . . .  The real danger is failing to give a Miranda warning in those circumstances where it’s appropriate, which could well determine whether a terrorist is convicted and spends the rest of his life behind bars, or is set free.

— Long-term military detention, even where a legally available option, is not ideal, and should certainly not be the default or exclusive means of incapacitation, as even the late Bush Administration appears to have concluded:  “For a variety of reasons, reliance upon military detention for individuals apprehended outside of Afghanistan and Iraq actually began to decline precipitously years before the Obama Administration came into office. . . .  From 2006 to the end of 2008, when the previous administration apprehended terrorists overseas and outside of Iraq and Afghanistan, it brought more of those individuals to the United States to be prosecuted in our federal courts than it placed in long-term military detention at Guantánamo.”

Thus, “[t]he strong preference of this Administration is to accomplish [incapacitation of persons who are threats to the American people] that through prosecution, either in an Article III court or a reformed military commission.

— And as for the choice between article III courts and military commissions, the Administration’s preference is plain:  Although the latter have been greatly improved in the Military Commissions Act of 2009 and are available in some cases, “[o]ur federal courts are time-tested, have unquestioned legitimacy, and, at least for the foreseeable future, are capable of producing a more predictable and sustainable result than military commissions.” Moreover, “our Article III courts are not only our single most effective tool for prosecuting, convicting, and sentencing suspected terrorists—they are a proven tool for gathering intelligence and preventing attacks.”

— In particular, “it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts.  As they should be.  Our military does not patrol our streets or enforce our laws—nor should it.

— “Similarly, when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.

— By contrast, “a wholesale refusal to utilize our federal courts”–as some in Congress have proposed–“would undermine our values and our security.”  The obvious implication is that the Obama Administration will strongly oppose such legislative efforts.

 

http://opiniojuris.org/2011/09/17/importance-of-the-brennan-speech-ii/

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