Saturday, November 21, 2009

Book 'em

President Barack Obama and Attorney General Eric Holder have come out in favor of show trials with pre-ordained verdicts for the men accused of planning the September 11 terror attacks.

At least that’s what it sounded like when Holder assured the Senate Judiciary Committee last Wednesday that he had told federal prosecutors that “failure is not an option” in the proposed trials, and Obama spoke as if the outcome were a fait accompli, saying that doubters would be reassured “when [Khalid Sheikh Muhammad] is convicted and when the death penalty is applied to him.”

In other words, we wouldn’t be holding a trial if we weren’t sure what the verdict is going to be. What kind of justice is that? Inherent in the idea of putting someone on trial is the possibility, even if remote, that the defendant may be acquitted.

Now, a variety of arguments can be made against bringing the September 11 plotters to trial, including the tainted nature of the evidence and the need to protect intelligence sources, but what Holder and Obama seem to be saying is this: the possibility of their acquittal is simply politically unacceptable. And that’s a scary thing to hear from the people at the top of our judicial system.

The question of what to do with the prisoners taken in the fight against jihadism is tying the U.S. government in knots and forcing us to think about justice and the sometimes fuzzy line between war and crime. Driving the debate is the Obama administration’s desire to close the U.S. prison at Guantánamo, Cuba, which means figuring out what to do with the people we’ve been holding there for years without trial.

How can a country based on the rule of law justify holding prisoners indefinitely without trial? Well, you have to define them as enemy combatants, which means you can hold them the way we did enemy POW’s in World War Two. None of them got a trial, and nobody said they should have. They just got caught in the course of fighting for the other side, and we had to do something with them. Similarly, we scooped up a lot of people in Afghanistan in the fighting that followed our invasion there, and we didn’t have any crimes to charge them with; they were just on the other side. We couldn’t let them go or they would have gone back into the hills and gone on fighting us, so we took them to Guantánamo.

So far, so good. But in World War Two there was a definable end to hostilities. When Germany and Japan surrendered, we returned their prisoners. When will the War on Terror be over? Nobody knows. Nobody even knows what the criteria are. With asymmetrical warfare and long-running insurgencies we’re in uncharted legal territory. So we have people sitting in Guantánamo who have never been charged with a crime but whom we don’t want to let go.

We’re not sure how to distinguish between the truly dangerous ones and the ones who just didn't like foreigners marching up the valley, and we don’t know what to do with the latter. But after eight years, it’s getting harder and harder to defend continued detention without trial. A country that proclaims its respect for the rule of law cannot simply go on holding prisoners forever without any possibility of appeal or resolution. And Obama’s determination to resolve the situation has opened up a Pandora’s Box of thorny legal questions.

Some say that military tribunals are more appropriate than our criminal court system for dealing with terror suspects. Others say that these tribunals don’t offer adequate legal safeguards. Of course, that’s precisely the point. If you can’t face the idea of the defendant going free, you’re not going to accept legal safeguards.

To achieve justice in the treatment of the prisoners at Guantánamo, we have to make some distinctions. We have to decide if there is any element of legitimate warfare at all on the jihadist side, and if so, we have to come up with criteria for the eventual release of those prisoners who were engaged in legitimate warfare. If not, they’re all criminals. And if they’re criminals, we have to be willing to prosecute, with all that that implies.

Of course there are, in theory, laws of war, and people can be prosecuted for contravening them. That’s why we put the Nazis on trial at Nuremberg and hanged Tojo. But if we try the September 11 plotters as war criminals in military tribunals, isn’t that tantamount to conceding some element of legitimacy to their campaign against the United States? We didn’t try Tojo for making war, but for commiting crimes in the course of that war. Is global jihad a legitimate military enterprise, with the September 11 attacks an aberrant departure from it?

Not in my book. But it could be argued that resisting the U.S. invasion of Afghanistan was legitimate warfare rather than terrorism, and if so, then some of the people at Guantánamo are prisoners of war in the classic sense. In that case, maybe the best course of action with regard to them is to send them back to Afghanistan and put them in Bagram prison with the other people captured in the current campaign there. We need to recognize that not everybody in Guantánamo has the same status and start sorting the guys who were just defending their turf from the ones who were devising ways of killing large numbers of American or European civilians.

For them, I don’t see any alternative to prosecution. Criminal prosecution of Khalid Sheikh Muhammad says to the world that we deny the legitimacy of attacks specifically targeting civilians. That’s not war, that’s murder. And if you’re going to bring criminal charges, that means you have to have due process, including the risk of acquittal. You’d better make damn sure you have a good case, but in the long run the legitimacy of our system will only be undermined by rigging the trials or refusing to provide them. And in the long run, American men and women are not going to go on fighting and dying in faraway countries for a system of dubious legitimacy.

So I think Obama and Holder have to stand up in front of the American people and say, “These are the people who planned the greatest mass murder in American history, and we are going to prosecute them, and if a fair trial leads to acquittal, then that’s just one of the risks of having a working judicial system. And if they are convicted we are going to put them in prison here on American soil, because they committed their crimes against Americans, and if that makes us the target of further attacks we will defend against those as we have defended against others in the past. And those are the risks of having an open society.”

That would take guts. We’ll see if Obama and Holder have them.

Sam Reaves


Gator said...

I agree with you completely on this one. As American's we need to accept a certain degree of risk in trade for our freedoms. A judicial system that may acquit someone that professes they hate and will continue to devote themselves to fighting against everything the US stands for, however misunderstood their understanding of the US may be, is a part of the price we must pay for our freedom.

Our judicial system doesn't always work but I didn't hear a popular outcry demanding that we should have an alternative method of putting away criminals after the OJ trail.

We should not be cowards, this country is undeniably safer today then it was for my grandparents. To say otherwise would be to insult their memory and the freedom they and those before them fought for.

David A Kentner writing under the name DA Kentner said...

The "air of legitamcy" occurred the day we responded to the attacks with our military. We did not request the formation of an international police force to intervene and track down "criminals." We are at "war," not at "posse."
Far too many topics within these posts, so I'll try to be brief and only touch on a few.
Not all of the enemy's 'soldiers' are criminals - they are soldiers doing their perceived duty. The criminals need to be dealt with as war criminals, not civil criminals. On 9-11 our country was "attacked" by representatives of an organized force that in turn attempted to unite nations to its cause. Many nations united against that cause in armed aggression, not with badges and arrest warrants.
I didn't, and don't, hold Obama and Holder's promises of conviction as anything more promisary than Bugliosi promising to convict Charles Manson or of the prosecutors tasked with removing John Wayne Gacey and Aileen Wuornos from society.
The public doesn't want to hear there is a chance any mass murderers may not be convicted - and I cannot recall any that ever were acquitted. It just doesn't happen, I don't care what country they are tried in.
OJ and other domestic murderers do at times walk away, but they cannot be placed into the same category as serial or mass murderers.
History dictates whether or not a "cause" was justifiable. Hitler lost - he's a criminal. The Pope remains - he isn't (I am referring to the Crusades). Idi Amin only butchered his own people so he is a footnote. Had he crossed borders and declared war on other countries and peoples... The winner gets to write history.
Regarding "non-criminal detainees," we cannot afford to allow them to return and fight against our troops. Even in our own Revolutionary War the practice of releasing the enemy's troops had to be stopped because the British simply rearmed them and sent them back into the lines, as we did our returned prisoners.
War is always won by attrition - be it personnel, supplies, or public support. The side that can no longer afford to be in the fight loses. We cannot risk losing this fight. But at the same time, I question how long we can afford to remain in the Middle East and Afghanistan.
The U.S. isn't accustomed to centuries of war. We've only been invaded once (Pancho Villa doesn't count). The Middle East has been at war since the dawn of civilization. We have already shown that all an enemy has to do is continue fighting, and we will eventually go home.
Now we are faced with an enemy that doesn't quit. It is an enemy that doesn't require one specific leader like a Hitler or Khan. We are at war with a "belief." Sooner or later we will want to quit fighting, not understanding this enemy is willing to wait for that day and then press its advantage. What then?

Gator said...

Apparently like you David, I usually first look at the issues of the day from the perspective of black or white. But defining our actions in Afghanistan or other parts of the Middle East, at this point, as war is a definition of political convenience. And defining that war as a war against "belief" is over simplistic at best.

Sooner or later? how about, like I don't know, "its the economy stupid". As long as we're a super power, and better yet "the super power", we will have the power to defend against our enemies.

But enemies, really?, enemies (I threw "really?" in there for Sam because I'm sure that he loves the new use of the word "really?", its almost as good a "my bad" and I do like "my bad"), that keeps you up at night? I don't know too many Americans that feel the same way you do. Now worried about the economy forcing them to cut Starbucks out of their every morning through evening, now I know quite a few Americans who are being kept up at night over that... hm... ok, that doesn't work... "my bad".

Sam Reaves said...

A lot to think about in this regard. Dave, I accept your arguments and can see that it's too facile to simply say treat them all like criminals. Yes, there's a difference between a criminal attack and an act of war. And defending against an act of war requires a freedom of action that we don't grant our policemen, for good reason. I grant that. And it may require detention without trial for a certain period of time. But I think there have to be limits (because our resources are limited, among other things); we have to make some definitions and demarcations. Our actions have to be viewed as legitimate in order to gain the support of other legitimate powers, and that means having some rules and limits. Making those demarcations is the hard part. I think Afghanistan is a military problem; the infrastructure that supports terrorism is a military target. But I also think that trying to blow up a plane (or any other operation deliberately targeting non-combatants) is a criminal act, not to be granted the status of a legitimate act of war. The heart of the problem is that we have more procedural protections for common criminals than we do for legitimate combatants. So how do we defend ourselves effectively without implicitly legitimizing the murder gangs as "combatants" rather than "criminals"? Maybe that's what the concept of a war crime is for. But that question is fraught with politics as well. Do we simply concede that the winner puts on the trials and writes the history? As one who believes in objective reality, I'm bothered by that. I think this is a tough area philosophically, and I haven't really thought it through to my satisfaction. Thanks for your remarks. Sam

David A Kentner, DA Kentner, KevaD said...

Unfortunately, writing in a blog limits my or anyone's for that matter to truly express their feelings. To state everything I feel on this topic wold take pages, not lines, and any "emotion" expressed is subject to interpretation based on the reader's viewpoint and not the writer's vocalization.
SO, having qualified this... here goes:
"War crimes" versus "criminal or civil crimes" are two very different animals. Trying a detainee as a war criminal for blowing up a plane is much easier to obtain a conviction than in our civilian court system.
There is a military tribunal and it is over. End of story. Historically the punishment for such a "war crime" would be execution or life imprisonment. The military courts have yet to indulge or engage 'moratoriums' on the death penalty that I am aware of.
This is why I prefer charging a "terrorist" as a "war criminal" over a "civilian criminal."
As for the victor writes history - Imagine this:
Japan won WWII. Hiroshima and Nagasaki.
Think President Wilson and the crew of the Enola Gay are still heroes in the history books?

David A Kentner, DA Kentner, KevaD said...

Side note:
The last person who survived "BOTH" Hiroshima and Nagasaki died this past year.