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?
