Article

2010-03-10 Home Front: WoT

By Jack Goldsmith

What will it be, Mr President? So asked the full-page advertisement by the American Civil Liberties Union in Sunday's New York Times. The ACLU was responding to reports that Barack Obama might reverse the decision by Eric Holder, US attorney-general, to try Khalid Sheikh Mohammed and his alleged September 11 co-conspirators in a civilian court and send them instead to a military commission. Beneath panel images of Mr Obama morphing into President George W. Bush, the ACLU noted Mr Obama's campaign pledge to change Bush-era terrorism policies, and urged him to "remind the world that America stands for due process, justice and the rule of law".

If this is surprising to some inside and outside the US, it is because they do not share the US government's view that it is at war and must use the tools of war -- including military commissions and military detention -- to defeat its enemies.

The problem for the ACLU is that America's conception of due process, justice and the rule of law includes military commissions. Commissions are politically damaged and still raise legal questions. But their pedigree reaches back more than 200 years and they have the support of every branch of US government. The Supreme Court invalidated Mr Bush's commissions in 2006 on technical grounds but affirmed their validity in theory. That same year, Congress reinstated commissions after addressing the Court's concerns. It made further revisions in 2009. The Obama administration embraced commissions last year and plans to use them for lower-level alleged terrorists.

American law also permits military detention without trial against members of the Taliban, al-Qaeda and its affiliates until the end of the country's conflicts with these groups. As with commissions, Congress has approved military detention; courts have upheld it; and the administration has embraced it and plans to use it for several dozen alleged terrorists.

Thus when Mr Holder was considering last autumn how to handle Mr Mohammed and associates, he had three options: a military commission, military detention or a civilian trial. His choice of the latter was pragmatic and not required legally. He based it on the overwhelming evidence against the alleged 9/11 plotters, which should make conviction relatively easy, and on the symbolism of using the most demanding standards of American justice. His decision had the effect of distinguishing Mr Obama from the Bush administration in a high-profile case and tamping down criticism by the ACLU and similar groups of Mr Obama's underlying embrace of the basic Bush approach to terrorism.

"This was a tough call," Mr Holder said at the time, "and reasonable people can disagree with my conclusion that these individuals should be tried in federal court rather than a military commission." Reasonable people did disagree -- strongly. Security for the proposed Manhattan trial turned out to be outlandishly expensive and disruptive, and local politicians who originally supported the trial asked the administration to reconsider. Many Republicans argued that the administration had a criminal law mentality and was soft on terrorism -- a position that gained traction after the seemingly passive handling of the underwear bomber in December. Calls have been growing in Congress to cut off funding for the New York trial.

So New York politics and the politics of appearing soft on terrorism are leading Mr Obama to reconsider what to do with Mr Mohammed. Another factor is Mr Obama's desire, three months after a blown deadline, to close the Guantanamo Bay detention facility. This goal, too, has aroused charges of weakness on terrorism. The administration is reportedly negotiating with Republican senators to move Mr Mohammed to a military commission in exchange for their support in closing Guantanamo.

It is not obvious, however, that commissions are the best choice for Mr Mohammed. They have not been used for a high-profile trial in 70 years, and many legal issues, some thorny, will need to be ironed out over many years before a final judgment on Mr Mohammed can be reached. This is not the ideal setting for what Mr Holder called the "trial of the century".

It might be more prudent to continue to hold Mr Mohammed under the military detention rationale that has justified his imprisonment for more than seven years. Military detention is easier, quicker and no less legally legitimate. Compared with commissions, it would give Mr Mohammed a smaller stage on which to make political mischief.

Using a commission or military detention to put Mr Mohammed away will anger the ACLU and others on the American left who insist on civilian trials, as well as many around the world who expected something different from Mr Obama. It would be the latest in a string of disappointments caused by the continuation of Bush-era policies such as commissions, detention, limited habeas corpus, targeted killing and rendition.

Mr Obama has embraced these policies because the realities and domestic politics of war and the responsibilities of the presidency have led him to use every legally available option to keep America safe. These policies mark a change from the campaign trail, but they enjoy broad political support in the US.

If this is surprising to some inside and outside the US, it is because they do not share the US government's view that it is at war and must use the tools of war -- including military commissions and military detention -- to defeat its enemies.

The writer, an assistant attorney-general in the Bush administration, teaches at Harvard Law School and is a visiting fellow at the Hoover Institution at Stanford University

Posted by Steve White 2010-03-10 00:00|| || Front Page|| [12 views ] Top

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