Goldsmith and Wittes on Civilian vs. Military Courts

With all the recent argument over whether Guantanamo detainees should be tried in civilian or military court Jack Goldsmith of Harvard Law School and Benjamin Wittes from Brookings take a somewhat new angle - the argument isn't worth it. In this Washington Post article Goldsmith and Wittes acknowledge that there are benefits to pursuing trials in civilian court, and dangers about the unknowns of military commissions, but that at this point political capital is wasted on the argument. They suggest that politicians and the public need to accept the reality that we are stuck with many of these Gitmo detainees and that we should focus on "defining the contours of detention" rather than desperately try to figure out how to try all of the detainees.

I respect pragmatism as much as the next guy, but I'm not sure I can just accept Goldsmith and Witte's proposal. What they are saying is that indefinite detention should be accepted with respect to some current Gitmo detainees and, apparently, future captured terrorists as well. I don't believe that is something that we can accept. Even Goldsmith and Wittes admit that "legitimacy" and "historical judgment" are important considerations which civilian trials would provide; however, they come to the conclusion that fighting the alleged reality that many of the remaining detainees won't be tried means that the argument should be conceded. I don't think there is an argument that strikes more at the heart of this country's legal principles than detaining people indefinitely without charge and without trial, therefore I don't believe that the argument should be conceded. I agree that the reality for some detainees already at Gitmo is that they won't be able to be tried. Past bad decisions may have put this country in that paradoxical situation; however, I'm not willing to say that this country should just give up on the argument.

Gitmo 9

In recent politically motivated attacks, conservative pundits and two Republican senators are accusing Obama administration attorneys – dubbed the “Gitmo 9” – of sympathizing with terrorists. The attacks against the attorneys are based on their previous representation of detainees before military commissions at Guantanamo Bay. The accusations are even aimed at Attorney General Holder because his old law firm assisted in the representation even though Holder did not participate in that representation directly.

Keep America Safe, an organization headed by former Vice President Cheney’s daughter Liz Cheney, created an ad that refers to seven of the attorneys as the “Al Qaeda 7" (another name conjured up to refer to these attorneys). In an especially tactless display, the website Investors.com ran an article about the “Gitmo 9” entitled “DOJ: Department of Jihad?”

Republican Senator Chuck Grassley also got in on the action as well saying that recent moves made by the Obama administration with respect to detainees were not “seriously thought through” and insinuated that it was the fault of these attorneys.. Spencer Ackerman, writer for the Washington Independent, points out that Grassley’s comments about these attorneys are particularly hypocritical because they defended detainees before military commissions which Senator Grassley helped start by voting to approve the Military Commissions Act of 2006. Those commissions explicitly required that detainees be provided with a defense. Senator Grassley is now impugning the people who worked within the system he helped to create.

Furthermore, it must be asked where the senator’s outrage was during the Bush years? Top attorneys during that administration dispensed legal advice authorizing torture, indefinite detention, and unrestrained electronic surveillance. All of that advice proved to be unconstitutional and undermined this country’s reputation.

It cannot be said that protecting the rights of those accused of crimes preludes a person from ardently pursuing justice. Before joining the Bush administration Jay Bybee, a top attorney at the Department of Justice, was a federal appellate judge. While on the bench Bybee wrote one opinion releasing a death row inmate because of the poor performance of the inmate’s attorney at trial. He also wrote another opinion throwing out charges against a man accused of downloading child pornography because he believed his Miranda rights were violated. These past pro-defendant decisions did not stop Bybee from aggressively (probably too much so) pursuing terrorists during his time with the Bush administration. It was Bybee who wrote the now infamous “torture memo” that professed to find a legal basis for torture in interrogation.

The sensational notion that current administration attorneys that provided a defense to detainees at Guantanamo Bay somehow makes them soft on terrorism or members of a “jihad,” is pure ignorance. These attacks are so extreme that many Republicans, including Ken Starr, Charles Stimson, and Jeff Sessions, are condeming them. These attorneys provided detainees with the rights that the Constitution, and recent legislative action, guaranteed them. The reason that this country recognizes those rights is not born out of a weak sense of justice, but rather out of a desire to protect individuals against the power of the collective.

Do not forget that not all of those who ended up at Gitmo were actually found to be enemies of the U.S. Over twenty members of a Chinese ethnic minority were held at Gitmo for seven years despite being found not to be enemy combatants. Most of them have now been released thanks to the efforts of the attorneys that represented them. Does that mean that some guilty detainees also receive legal representation? Of course, that is a natural consequence of democratic principles of justice, but it does not mean it is wrong. It is attorneys like the “Gitmo 9” that make the system work and keep it fair for everyone. They should be applauded, not vilified.

Is the Potential for Domestic Terrorism on the Rise

A new report from the Southern Poverty Law Center is noting a rise in the number of anti-government groups, militias, and "patriot" groups. Many of these groups are fueled by racism and hate, and the SPLC cites a rise in immigration over the past decade and the recent election of President Obama as major factors leading to the increase.

This report is more evidence that we need to focus some attention on the entire spectrum of terrorism - including domestic terrorism. A great number of these groups cited in the report probably don't actually pose a serious security risk; however, some very well may and the attacks they carry out have the potential to be as devastating as 9/11. The most famous incident of domestic terrorism, Oklahoma City, ripped the entire face off of a federal building, killed nearly 200 people, and injured another 700. That attack was carried out by a small group that harbored anti-government views. These groups deserve especially close attention because they are made up of American citizens already in the country. They are not comprised of foreign terrorists who can be tracked when they cross international borders, or immediately draw the attention of security services once they are in the U.S.

I don't predict domestic terrorism will become as pervasive a problem as international terrorism, but the results of domestic terrorism could be just as serious. Hypothetical questions pop to mind with respect to how we would respond to a domestic terrorist attack post 9/11. Specifically, will there be an outcry to refuse domestic terrorists rights usually afforded to those arrested for domestic crimes? It's a question I've asked before. Many, mostly Republicans, derided the Obama administration for giving the Christmas Day Bomber constitutional rights which they claimed ruined the opportunity to gather valuable intelligence from him. Would the reaction to a terrorist with the last name of Jones from Texas be the same as the reaction one with the last name of Abdulmutallab from Nigeria?

In this vein, Spencer Ackerman has a great post on his blog about Lindsay Graham's ridiculous attempt to prevent civilian trials for terrorists and Rahm Emanuel's bizarre alliance with him over the issue.

Kiyemba Essentially Killed

This is cross-posted at The Progressive Fix.

On March 23 the Supreme Court was set to hear Kiyemba v. Obama, the most significant case regarding Guantanamo Bay detainees since it decided that detainees had the ability to challenge their detention through use of the constitutional right of habeas corpus. The question before the court inKiyemba was whether if a Gitmo detainee is granted release by a federal court through a habeas corpus challenge the executive branch must let him go him even if it meant releasing them into the United States. Today, the court decided to avoid answering that question and sent Kiyembaback to a lower federal court.

Here’s a brief background of the case. The detainees involved in Kiyemba are members of a Chinese ethnic minority called the Uighurs. U.S. forces captured them at a terrorist training camp in Afghanistan shortly after the beginning of operations there. The Uighurs were training to carry out terrorist attacks against China. They eventually ended up at the U.S. military prison at Guantanamo Bay, and were held there for years despite the fact that they were not deemed to be enemy combatants. They were held because legal constraints prevented the U.S. from transferring them back to China due to the likelihood that they would be tortured — even executed — and the U.S. could not find another suitable country to accept them. The Uighurs filed the Kiyemba suit demanding they be set free even it if meant releasing them into the U.S.

The central issue in Kiyemba is this: What good is the right to challenge detention if there is not also a right to be released from incarceration? It seems logical that when a court decides that a prisoner is not being lawfully held, he is entitled to be released immediately. However, it is not so black and white with the Gitmo detainees.

There are serious concerns over releasing Gitmo detainees on U.S. soil. One is that a court could end up releasing a dangerous detainee because of shaky evidence that couldn’t be used for their prosecution. It has proven difficult for government attorneys to justify the continued detention of some detainees because evidence against them was classified, tainted by questionable interrogation techniques, rests with government operatives still overseas, or is based on questionable statements made by fellow detainees. This means that a dangerous detainee could actually be released into the U.S. because of a lack of reliable evidence to justify their detention.

Another legitimate concern is that even if a detainee was not a danger to the U.S. when they began their incarceration, they are now. As you can imagine, being wrongfully incarcerated by a country for years may lead to some pretty negative feelings toward that country – feelings that could be expressed violently.

Finally, there is the “not in my back yard” argument. No one is going to want former Gitmo detainees in their community. Even though a detainee may not be a legitimate security threat, a volatile situation could be created by citizens that are afraid of or angry at a detainee in their community.

Tackling difficult and complex issues is the Supreme Court’s most important job. Did the court punt on a major issue in this instance? Some might think so, but this case is different — the security concerns involving Gitmo detainees are very real and very serious.

The fact is that there are diplomatic solutions to the problem. In the Uighurs’ case, only five out of the original 22 Uighurs remain at Gitmo. The executive branch has been working hard to relocate them, and had recently persuaded Switzerland to take two of the men. In addition, the other detainees had been offered -– and refused – to be released to the island nation of Palau. The administration argued that those offers changed the circumstances under which the detainees’ challenge was brought in the first place -– an argument with which the court agreed.

By sending it back to the lower court, the Supreme Court forestalled having to rule on a difficult question. Indeed, if the remaining five Uighurs are released to another country, the judicial system will be able to avoid having to make a decision on the case. Once the Kiyemba case is resolved, the executive will have more time to relocate the remaining detainees at Gitmo, and hopefully will be able to right the constitutional ship through diplomatic efforts rather than by judicial order.

Man Flies Plane Into IRS Building In Austin

The New York Times is reporting that a man flew a small plane into the IRS building in Austin, Texas earlier today. One person is reported missing and two people were taken to the hospital. Based on internet postings the authorities believe it was an intentional act by a man named Joseph Stack.

No one is calling this an act of terrorism that I can tell, but it looks like one to me. There is no concrete definition of terrorism, but based on the various ones I've found it seems that it is defined as an ideologically motivated act of violence directed at a government or society. The suspect in this case laid out the problems he had with the IRS on the internet and said that the only answer was violence. In my book that makes this incident an ideologically motivated attack against a government agency and the people that work there. What if this guy were still alive and we could prosecute him? Would those people calling for military trials of the Christmas Day bomber and the 9/11 terrorists also say that the proper venue for a trial against the perpetrator of this crime is a military tribunal? Would the word terrorism even be mentioned in connection with this crime? It doesn't look like it has thus far. The NYT article doesn't mention it once (I think that would not be the case if the pilot's name was Mohammed instead of Joseph).

Let's take it one step farther. What if, instead of the act of one man, this was a conspiracy by a bunch of white men from Texas that wanted to strike at the U.S. government? We'd be looking at a situation that is less destructive, but very similar to the Oklahoma City bombing, which was a terrorist attack on American soil just like 9/11 and the Christmas Day attempt. Would we hold the guys that planned the Austin attack for days without an attorney to question them? Would we attempt to try them in a military tribunal? The answer is that we probably wouldn't and we definitely shouldn't. We didn't even consider doing that during Oklahoma City.

In this case it looks like the sole perpetrator is now dead, but I think it is important to ask whether or not, if the situation were different and more people were involved that could be tried, what our legal response would be. We successfully tried the Oklahoma City suspects in federal court. I think it likely that anyone charged in conspiring to attack the IRS building in Austin would be charged under a terrorism statute. I also think there is no question that they would be tried in a federal court just like many terrorism cases have been in the past but yet when it comes to Khalid Sheikh Mohammed and Umar Farouk Abdulmutallab people think we can opt out of the civilian justice system because they are "enemy soldiers" in the "War on Terror." We can't change our minds about how to approach these attacks just because we now say that we are "at war against terrorism." We've had a "War on Poverty" and a "War on Drugs", but we didn't take that as an opportunity to abandon the underpinnings of our legal system because it wasn't necessary then and it is not necessary now.

U.S. Troops In Pakistan

The New York Times reports this morning that three American soldiers were killed and two were wounded in Pakistan. Their deaths were the result of a remotely detonated roadside bomb in a village near the Taliban-ridden Swat Valley. The military says that the soldiers were in the area training Pakistani paramilitary forces. The NYT says that the Pentagon has acknowledged that the U.S. military has sent advisers to Pakistan in a consulting role, but this article insinuates that this is the first time that U.S. soldiers were killed inside Pakistan while on a mission.

I think this article confirms what most people knew was a virtual certainty: that U.S. military forces are operating inside Pakistan. I also assume that these aren't the first U.S. military casualties inside Pakistan, but they are the first that we are hearing about. I think it highly likely that these soldiers were members of U.S. Army Special Forces who played, and continue to play, a major role in Afghanistan. The primary mission of Special Forces soldiers is what is called "foreign internal defense", which is essentially training groups of indigenous forces in a country to fight. This is a major component of the mission in Afghanistan as well as Iraq. Based on what the NYT article says these soldiers may have been a "training unit" attached to Pakistani paramilitary forces. That sounds like it is right up the Special Forces' alley.

I don't think that this incident is any kind of harbinger to escalated U.S. presence in Pakistan. There is virtually no chance we get heavily involved in Pakistan in the sense of having a military presence there. President Obama has made it clear that the goal is to get Afghanistan in some form of stability as quickly as possible and get out of there so that he can redirect that money towards fixing domestic issues. Since that is the goal I don't see any chance of us getting involved in Pakistan; however, this story does draw attention to a military presence in Pakistan that is usually downplayed.

9/11 Terrorists Won't Be Tried In Manhattan

I cheered when the federal government announced that it would try Khalid Sheikh Mohammed and the other 9/11 terrorists in civilian court in New York City. Yesterday the trials’ opponents won out and the administration decided to nix its plans to hold the trials in New York City. A New York Times article about the decision explained that the stepped-up security measures would cost over $1 billion and would essentially shut down a good portion of lower Manhattan. Even Mayor Bloomberg, initially a major proponent of the plan, withdrew his support.

The government is doing the right thing by ditching its plan. I believed that holding the trials in the city most affected by the attacks was going to be a great symbol of the resilience of NYC and the United States, as well as a symbol that we were repairing the rule of law that was damaged during the Bush administration. That symbol became less meaningful once it became clear that the trials would have serious adverse effects on the everyday lives New Yorkers, and could potentially put them in danger of another attack.

Although I agree with the decision to change the location of the trials, I also think that this is a setback for the administration. A quote in the New York Times article makes the point that the decision to move the trials is a propaganda dream for Al Qaeda. It’s a sign that AQ can make its presence felt years after 9/11 even in the absence of an actual attack.

In the end, the federal government has no one to blame for this but itself. Apparently Attorney General Holder did not contact anyone in NYC until just a few hours before the announcement that the trials would be there. There was no consultation with NYC authorities as to what security or logistical steps would be needed to facilitate the trials. Had there been preliminary discussions, the administration could have avoided what seems to be a significant setback in the President’s national security agenda. Now it seems like holding these types of high-profile terrorism trials in civilian courts is impossible, and that the solution to the problem is to try them in military courts.

The Washington Post reports that Senator Lindsey Graham is planning to introduce legislation that would indirectly force these trials into military tribunals. The administration cannot allow that to happen. Cancelling the NYC trials is a setback, but the answer to the problem cannot be a reversion to Bush administration policies of dealing with terrorism’s legal issues through the military. Federal courts have handled terrorism trials in the past, they are absolutely capable of handling these trials, and the place for these kinds of trials is in civilian court, not in military tribunals. The solution to this problem should be to move the trials to a federal court in a less populous location where effective security measures can be more cheaply and easily implemented, and where the effect on the local population would be significantly lower than if they were held in NYC or Washington, D.C.