Earlier this month, Senator Lindsay Graham (R-South Carolina) introduced a bill that would prohibit the use of Justice Department funds for prosecuting alleged 9/11 plotters in federal courts. The aim of the bill (and a similar one introduced in the House by Representative Frank Wolf from Virginia) is to tie the Obama administration’s hands and force them to try terrorism suspects in military tribunals. Defense Secretary Robert Gates and Attorney General Robert Holder wrote a letter to Senate leaders opposing Graham’s bill, explaining that it
would be “unwise, and would set a dangerous precedent.” And the Department of Justice recently issued a statement to the same effect, claiming “There is no precedent in the history of our Nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes.” Given that there have been over 300 successful prosecutions of terrorist suspects in federal criminal courts, compared with only 3 successdul prosecutions by military commission, it seems fair to ask: what is there to fear about fair trials?
The issue here is clearly not about which prosecutorial form (federal court trials or military commissions) are more “effective,” as the NYU School of Law’s “Terrorist Trial Report Card” shows. The federal court system has been eminently effective both in intelligence collection and incapicitating terrorists, while the legality of military tribunals have been challenged all the way to the Supreme Courth three times already. That is to say, if the only concern here were simply whether or not “justice” would be done– in the sense of punishment meted out to demonstrably guilty parties– we would have to side with the federal court system. Unfortunately, I fear that the accomplishment of “justice” is not what is primarily at stake in these debates.
Last month, I attended a lecture by Karl Rove (which I wrote about in my post “Rove at Rhodes”) in which he presented what I consider a representative argument of the opponents of fair trials for terrorism suspects. Rove claimed that the Obama administration’s error is their tendency to “treat terrorism as a crime and not a war.” I’m not sure I realized it at the time, but I have come to believe since that Rove’s characterization is far more telling that he (or I) may have realized. What is really at issue in this debate over whether we should turn over terrorist suspects to the Department of Justice or to the Department of Defense is precisely a question about how we intend to frame what sort of infraction “terrorism” is. Is a terrorist act a “crime”? Or is it a “declaration of war”? Is it a violation of a law (or, more broadly, the rule of law) or is it a violation of sovereignty?
My philosophical inclination is to say that it is something between the two. Clearly, all terrorist acts violate some law and, inasmuch as they have the superadded political element of being characterized as “terrorist,” they do so in a way that is intended to disrupt and disavow the very rule of law that proscribes them. But it is precisely that superadded characterization that makes terrorist acts also a violation of State sovereignty, even a violation of the idea of State sovreignty, of the principle of a State governed by the rule of law. So, technically speaking, terrorist acts are “crimes,” but they are also a peculiar sort of “declaration of war”… something like a “declaration of war against the rule of law.” My guess is that it is this latter offense that so troubles people like Rove, who see terrorism as a threat to the integrity and security of a recognized State and, consequently, the proper business of the Department of Defense. The problem is, of course, that the State the Defense Department is charged with defending is a State governed by the rule of law. If the mechanisms and strategies of its defense are themselves abrogations of the rule of law, as they arguably are in military tribunals, then I fear we run the risk of robbing Peter to pay Paul.
I would argue that there is a both a principled and a strategic reason to insist that “terrorism” be treated as a crime and not a war, despite the fact that it may be both. On principle, affording terrorist suspects all of the rights and privileges of the judicial process reaffirms our commitment to the very rule of law that their acts terrorize and which put us at such grave risk. Inasmuch as we are able to execute fair and impartial trials for these suspects, we can make good-faith judgments about the impermissability of terrorism as form of political action without worrying that we may have terrorized our own legal system in the course of those judgments. Strategically, advocating trials over military commissions is a way of delegitimizing the claims of those who too quickly subordinate the principle of the rule of law to national security… forgetting that, without the rule of law, the Nation they are claiming to secure disappears. If we accept Rove’s claim that terrorism should be treated as a war and not a crime, we will inevitably find ourselves at war with ourselves, and we will have abandoned any appeal to impartial principles that might adjudicate our internal disputes.
In short, we need terrorism to be a “crime,” even more than alleged terrorist suspects need it to be, because we need this issue to be about justice and not war. War does not decide matters of justice. I am reminded of La Fontaine’s fable “The Wolf and the Lamb,” a kind of cautionary tale about the dangers of conflating might and right. In the fable, the wolf engages the lamb in a charade of a trial, in which every defense the lamb presents for its existence is futile. It is clear that the proceedings are a fait accompli, and that the lamb will be devoured by its predator “without any other why or wherefore.” But it is in the “why or wherefore” that we determine matters of justice, and it is there that we place our confidence that, in the end, our judgments are not merely brute exercises of power.
I know you know this, and it might go without saying, but this isn't because Rove et al really believe this. They are trying to sell a narrative that Obama does not take seriously terrorism as an existential threat.
In short, it's a partisan game. I know your point is to ignore the partisan aspects of this game, and focus on the more interesting philosophical and policy aspects.
I have more to say about the substance of this post, but I think there is enough to justify a full blog post over at my place. I'll link it if I get around to it.
Thanks for this post. I think we need more discussions of this issue outside of the merely partisan aspect.
Thought-provoking as always. A few days ago, I posted a link from Andrew Napolitano (among a few other things) in which he argues that without a formal, congressional declaration of war, military tribunals for suspected terrorists are unconstitutional. Abstracting even from the interesting and important questions about what the legal system should look like, governments presumably adopt constitutions in order to bind their hands in situations like this. In short, the requirement for a congressional declaration of war is supposed to check abuses of executive power. It's a powerful and sobering point: if Napolitano is right on his constitutional interpretation, a lot of what's being done in the name of the "war on terror" is illegal even according to the document Congress and the President are sworn to uphold.
Dr. J: I think you and Rove are correct in the places where you agree: terrorism is a potential threat to the rule of law, and that you win the argument that a trial is the best way to defend against that threat. However, it's really not clear what we ought to do about trying people when the only evidence we have was gathered through espionage. The current practice basically makes the judge the sole arbiter of 'secret evidence,' which removes the very jury trial protections we're looking from in federal courts. That's something about which I'd like to hear more discussion.
This goes to the one element of the paradigm distinction between war and crime where I worry that conservatives have a point: the issue of prevention. Domestically, the law enforcement is much better able to treat crimes as detectable and preventable, whereas in warfare situations we must rely on espionage to accomplish our detection and protection goals. Espionage works best when it's secret, and doesn't mix well with due process protections.
My solution to this is generally to say that we should treasure the rule of law over the illusory promise of safety, but I feel sort of like Kant demanding that we not lie to the Nazis-at-the-door saying so. There's a complicated interplay and set of assumptions about the public use of reason and the role of secrecy here that I struggle to untangle.
In light of that, another important element of this story is the Terror Trial Report Card and what it illustrates about the inadequacy of military tribunals as practiced under the Military Commissions Act.
Art: The key question is whether the 2001 Authorization for the Use of Military Force constitutes a war declaration as determined by Article One, without invoking the more difficult issues in the War Powers Resolution, which itself is likely an unconstitutional legislative veto of executive power. I'm no fan of Bush, but in this, at least, his reading of the constitution seemed secure.
Scu: partisan does not require non-belief. Yes, of course, Rove is making a partisan point. But it gets force because it comes from a genuine perspective. Blogs such as The Belmont Club do view things in these terms.
I have noticed a tendency on the "right" for them to believe the left do mean what they say (or even mean more than they say) and on the "left" to believe the right do not mean what they say (or mean less than they say: except when it comes to accusing the right of racism).
This, I suggest, comes from the right accepting that the left have a moral perspective, just a "wrong" one: while the left often has trouble conceding anyone but themselves has a moral perspective. Not an analytically sound way to proceed.
Great post. Terrorism poses genuine conundrums that I have never managed to fully reconcile.
You are essentially supporting the position of, for example, the Reagan Administration (pdf). In Paul Bremer's words:
Another important measure we have developed in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law against them.
In other words, to not become what we are fighting.
That terrorists use criminal means is obvious. That they do not have conventional criminal ends (or not only conventional criminal ends) is also obvious. They are certainly not entitled to be treated as combatants who have signed the Geneva Conventions, because clearly they have not. They are waging a form of war, but do not acknowledge (or bind themselves by) any of the laws of war. They place themselves outside those limits and so, in some important sense, place themselves outside those protections.
Hence I am very reluctant to do anything that gives them a status they absolutely have not earned nor are entitled to. Certainly, giving them the status of mere criminals strips them of their self-flattering pretensions. And it minimises the chances of us becoming that which we fight.
There is the issue of effectiveness: does treating them as criminals work well enough? But there is also the point about why societies have warrior codes: to differentiate the warrior from the murderer. To not corrupt our own processes and our own protectors is why the common law has opposed torture since medieval times, for example.
Treat the captured terrorists as criminals seems not very problematic if they committed crimes within one's own jurisdiction. But what about those whose evil falls elsewhere? Does it become a simple matter of extradition? But what if there are real problems with that?
It is a sign of how tangled this all is that how to respond to terrorism generates such mixed responses.
Lorenzo:
I'm not saying that all partisan arguments are false or even suspect. I'm not saying that everyone on the right, or all republicans, are simply being partisan on the military tribunals arguments. I am saying that for years Bush prosecuted 'terrorists' through the criminal justice system, more than a couple of hundred. Rove had no problem with that, at the time. What has changed? What has made the christmas/underwear bomber different than the shoe bomber or the hundreds of others prosecuted through the criminal justice system. What I am saying is that Rove is pushing for a particular narrative that sells Obama as not believing that terrorism poses an existential threat to the US. Now, Rove may or may not believe this narrative, not sure. What there seems to be amply evidence for is that Rove doesn't believe that military tribunals are key, or he would have spoken out before. Rove is using this as an argument for a broader story, which again I am not sure one way or another if he believes.
Does that make sense?
Scu: If Rove is now arguing that no terrorists be prosecuted through the courts even though the Administration he was part of did just that, then clearly that is partisan spin and your point is sound.
If, however, he is arguing that military tribunals continue to be used in some cases, that would appear to be continuing the same policy.