4/5/11 

Yesterday's announcement by Attorney General Eric Holder that Khalid Sheikh Mohammed and his four alleged coconspirators behind the 9/11 attacks will be tried by a military commission rather than in a civilian court marks a disappointing reversal that Congress threatens to follow with wider-reaching and more permanent shifts in U.S. detention policy.  The administration's decision, and disturbing proposals before Congress that would actually broaden the scope of the detention power, remove law enforcement from its lead role and subject U.S. citizens to Guantanamo-style treatment. Those steps fly in the face of military and expert opinion and decades of legal success convicting terrorists in civilian courts. Overreliance on a military justice system neglects powerful tools and - against military wishes - glorifies terrorists instead of exposing them as cowardly murderers.

This dangerous trend towards the militarization of our justice system must be stopped. Current efforts in Congress - led by Rep. Buck McKeon (R-CA), chairman of the Armed Services Committee, and Sen. John McCain (R-AZ), ranking member of the Armed Services Committee who in the past has argued to close Guantanamo Bay - would take detainee legislation to extremes beyond what the Bush administration had considered, establishing Guantanamo Bay as a permanent fixture and requiring military detention for any terrorism-related charges. Congress needs to listen to America's national security professionals when it comes to U.S. national security, in order to clean up the mess that the Bush administration left behind.

Political pressure reverses course recommended by military, counterterrorism and legal experts: Civilian trials remain an effective tool in combating terrorism. "Attorney General Eric Holder announced Monday that Khalid Sheikh Mohammed and four other 9/11 terror suspects will face a military trial at the Guantanamo Bay detention facility in Cuba," reports CNN.  The Washington Post reports that, "In announcing the decision, Attorney General Eric H. Holder Jr. said he will return the case to the Defense Department ‘reluctantly' and blamed the move on Congress, which has erected a series of barriers to bringing detainees to the United States, even for prosecution... Holder added that the Justice Department had been ‘prepared to bring a powerful case' against the suspects. To underscore the point, the department unsealed a December 2009 indictment on Monday that outlined the case prosecutors had planned to present."

Bipartisan experts continued to favor civilian trials even as Congress backed away.  Matthew Waxman, who served in the Bush administration as the first deputy assistant secretary of defense for detainee affairs recently said, "I'm skeptical that military commissions are likely to be as successful a tool as proponents claim... I think the very idea of military commissions for suspected terrorists is viewed by many audiences at home and abroad as illegitimate. There's often an assumption that military commissions will be tougher, or more likely to convict and deliver harsher sentencing on terrorism suspects than civilian trials. I'm not sure that's true, and so far the evidence does not bear that out. Also, when terrorism cases have been brought by prosecutors to civilian courts, they have been quite effective in handling the many challenges that come up." Karen Greenberg, executive director of the Center on Law and Security at the NYU School of Law, notes that "the civilian courts have learned to know the nature of these cases. They have developed a body of expertise on the part of the prosecutors and the defence attorneys... How ironic that the development of a true professional expertise is met with a refusal to let the courts practise what they are charged with under the US Constitution." Former Secretary of State and Chairman of the Joint Chiefs of Staff Colin Powell explained in 2007, "Essentially, we have shaken the belief the world had in America's justice system by keeping a place like Guantanamo open and creating things like the military commission. We don't need it and it is causing us far more damage than any good we get for it." [CNN, 4/5/11. Washington Post, 4/4/11. Matthew Waxman, CFR, 3/10/11. Michael Lehner, 9/25/09. Karen Greenberg, 4/4/11. Colin Powell, 6/10/07]

Legislation now before Congress moves us even further away from what counterterrorism experts recommend, threatening to expand beyond the disastrous detention policies of the Bush administration. Proposed terrorist detainee legislation  goes far beyond what the Bush administration advocated. Ken Gude, managing director for the national security and international policy program at the Center for American Progress explains that the new bills, "vastly increased detention power than ever contemplated during the Bush administration." These proposed pieces of legislation go against the strong advice of military and national security leaders from both sides of the aisle, as well as the advice of former President George W. Bush and, until he changed his position, Sen. John McCain (R-AZ). This reactionary legislation focuses on several core topics:

Keeping Guantanamo Bay open. Gude writes that, "Rep. McKeon's bill, should it become law, would enshrine Guantanamo as a permanent fixture with vastly increased detention power than ever contemplated during the Bush administration." But as John Brennan, a former CIA agent and currently President Obama's advisor on counterterrorism and homeland security recently said, "Closing Guantanamo Bay is important for our national security interests." General Colin Powell further explains: "I think Guantanamo has cost us a lot over the years in terms of our standing in the world and the way in which despots have hidden behind what we have at Guantanamo to justify their own-- their own positions... And so I think we ought to remove this incentive that exists in the presence of Guantanamo to encourage people and to give radicals an opportunity to say, you see, this is what America is all about. They're all about torture and detention centers."[Ken Gude, 3/11/11. John Brennan, via Politico, 3/18/11. Colin Powell, Face the Nation, 2/21/10]

Combating terrorism. Ben Wittes, of the Brookings Institution, writes that the McKeon legislation would mean "anyone detained for virtually any activity in support of the enemy, absent a waiver from the Secretary of Defense, would have to be remanded to military custody." But as Brennan states, "Our military does not patrol our streets or enforce our laws in this country. Nor should it." This approach undercuts the a vital role of law enforcement, as  The Chairmen of the 9/11 Commission recently testified before the Senate Homeland Security Committee: "State and local officials have a far greater understanding not only of the threat and how to respond to it, but also, their communities..."  [Ben Wittes, 3/9/11. John Brennan, 3/18/11. 9/11 Commission Chairmen, 3/30/11]

Bringing terrorists to justice. Ben Wittes describes the McKeon legislation: "The biggest problem with the bill is Section 4-and it's a whopper, a radical proposal that should prompt a veto of any bill to which it is attached. By its terms, Section 4 would require military detention of any individual ‘who is eligible for detention' under the AUMF unless the Secretary of Defense certifies that ‘the national security interests of the United States' require a waiver of that requirement. Once in military custody, the law would allow only two dispositions: military commission trial or long-term military detention." But as Colin Powell explains, "[W]e're not using military commissions like we should. Any time you lock somebody up or you catch a terrorist let's give them the military commission... Meanwhile, the federal courts, our Article III, regular legal court system, has put dozens of terrorists in jail and they're fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn't borne out by the history of the military commissions." [Colin Powell, Face the Nation, 2/21/10. Ben Wittes, 3/9/11]

Reactionary detention policies are a symbol of our own fear and run counter to what is best for our national security:  A resilient America that doesn't play into al Qaeda's hands. On the ninth anniversary of the opening of the detention center at Guantanamo Bay, detention policy expert Thomas Wilner said, "I think Guantanamo is a symbol of... fear and weakness. We started out with Guantanamo out of a hysteria and a fear of terrorism... I consider that weak because I think a strong person in times of threat stands by his principles." Experts draw out how such overreaction has consequences for our security. As terrorism expert Peter Bergen writes, "the real damage is done by the panic and lashing out that follows. This is the reaction that al-Qaeda craves-and it is why terrorism works."  Homeland security expert Dr. Stephen Flynn  explains that there are in fact deterrence benefits of  resilience: "If how we react - or more precisely, when we overreact - elevates the appeal of carrying out these attacks on U.S. soil, it follows that there is an element of deterrence by denying these terrorist groups the return on investment they hope to receive." [Thomas Wilner, New America Foundation, 1/11/11. Peter Bergen, Vanity Fair, 1/11. Stephen Flynn, 9/15/10]

What We're Reading

UN peacekeepers and French troops launched military operations against loyalists of Ivory Coast's longtime strongman Laurent Gbagbo.

Rebels and pro-Qaddafi forces traded fire in the oil town of Brega as international airstrikes continued.

For the first time since the start of unrest in Yemen's capital, youth protesters numbering in the tens of thousands marched toward the Republican Palace.

Bahraini authorities deported two journalists working for the opposition's main newspaper, accusing the Al Wasat newspaper of unethical coverage of the Shiite uprising against the Sunni rulers.

Two men, tentatively identified as U.S. citizens, were shot to death in their vehicle as they waited at a Tijuana-area border crossing to enter the United States.

French President Nicolas Sarkozy's party, the UMP, is preparing to host a controversial debate on the role of Islam in secular France.

Afghan President Hamid Karzai ordered a probe to investigate the protests that began in reaction to a Florida pastor's burning of the Quran, leading to the killing of dozens of people, including seven UN staff.

Britain, the United States, and the EU have joined the international outcry over the detention of Chinese artist Ai Weiwei and the renewed crackdown on Chinese dissidents and activists.

Italy has entered into an agreement with Tunisia to provide assistance in patrolling the Tunisian coastline, as part of an effort to stem the waves of desperate migrants that have landed on the Italian island of Lampedusa in the past three months.

"Sweet" Mickey Martelly, one of Haiti's most popular entertainers, a provocative Carnival singer previously best known for disrobing and swearing on stage, was elected president in a landslide.

Commentary of the Day

Renee Xia argues that China's crackdown on human-rights lawyers, activists and online dissidents is going from bad to worse.

April Longley Alley writes that even if Yemen manages to avoid civil war, the country's many economic and security challenges may undermine democratic reform.

Charles Kupchan says that while France, Britain and other NATO nations are now heading the Libya mission, strains among members could be amplified if NATO tries to increase support for the rebels and the coalition still hasn't clarified its objectives.