Author: Tommy Crocker

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? 

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?  

Yes, it’s true, according to the Lieutenant Governor of South Carolina, Andre Bauer.  A U.S. District Court held this week that a State-sponsored vehicle license plate featuring a cross superimposed over a stained glass window with the words “I Believe” violates the First Amendment's Establishment Clause.  As reported by The State newspaper, the Lt. Governor declared in response that the ruling was...

I owe many thanks to Kevin, and the Opinio Juris community, for inviting me to join the conversation.

Although it has been in circulation for over a month now, I find myself still mulling Andrew Sullivan’s provocative open letter, Dear President Bush, in October issue of the Atlantic. It is a unique and thoughtful approach to the problem of torture and responsibility.

Sullivan’s letter unflinchingly describes official practices and acts during the Bush years as torture.

“The point of this letter, Mr. President, is to beg you to finally take responsibility for this stain on American honor and this burden on a war we must win. It is to plead with you to own what happened under your command, and to reject categorically the phony legalisms, criminal destruction of crucial evidence, and retrospective rationalizations used to pretend that none of this happened. It happened. You once said, “I’m worried about a culture that says . . . ‘If you’ve got a problem . . . blame somebody else.’” I am asking you to stop blaming others for the consequences of decisions you made.”

Why must President Bush take responsibility? For one, Sullivan claims that “[N]o previous American president has imported the tools of torture into the very heart of the American system of government as you did.” Moreover, “[B]y condoning torture, by allowing it to take place, and by your vice president’s continuing defense and championing of torture as compatible with American traditions, you have done enormous damage to America’s role as a beacon of freedom and to the rule of law.” Finally, regarding the policies and actions taken in violation of the Geneva Conventions and other laws, Sullivan writes: “The responsibility for all of this is yours—before the American people and before the court of history. And you need finally to own these decisions, to take full responsibility for them, to account for them, to explain them, and yes, to apologize for their scope and brutality.”

Why not hold all official actors who authorized, justified, and perpetrated torture accountable? Why President Bush alone? Sullivan believes ignoring the evidence of torture and war crimes is not an option, but neither is seeking to prosecute high officials such as President Bush or his vice president, because to do so would be even more damaging to the polity. Prosecuting lower officials would be to persist in scapegoating under a “few bad apples” theory. Thus, Sullivan arrives at a model he attributes to Ronald Reagan: “Only you can move this country forward by taking full responsibility for the past and supporting the current president in his abolition of torture and abuse.” Citing Reagan’s 1987 speech in which he took responsibility for trading arms for hostages in Iran, Sullivan continues:

“You may not have intended to torture people, but you did; you may have acted to protect the country within the law, but that admirable desire too easily slid into your approval of actions that are indefensible, illegal, and deeply damaging to America’s reputation and honor. You were let down, as Reagan was. He took responsibility. You need to as well.”

Sullivan’s approach is unique. It is a direct appeal, using direct address. I have a number of questions, however. If President Bush were to take responsibility as Sullivan eloquently requests, would that really “help restore this country’s reputation.”? Is restoring our reputation the main objective? What is the objective of any call for accountability? Sullivan’s call sounds in the language of reconciliation, language he explicitly deploys in his letter. But is reconciliation the right discourse? One view regarding the relation between torture and responsibility, is that where it might seem an viable response to conditions of necessity ex ante, any official who succumbs to the temptation to torture must be held to account ex post (I discuss this more here). The process of holding officials responsible is one where other governing bodies, as well as the sovereign people, get to pass judgment on actions taken in their name. By contrast, Sullivan’s approach seems to accept at least one premise of executive unilateralism by focusing on the unilateral responsibility of the executive.