Wartime enemies or common criminals?

When Attorney General Eric Holder appeared before the Senate Judiciary Committee in November 2009, he asserted in his opening statement: "I know that we are at war." But does he?

On various occasions, Members of Congress have questioned the attorney general on whether he agrees that the United States is at war with al-Qaeda. Each time, he responds with an emphatic "yes" and each time with a certain level of impatience, even incredulity, at any implication to the contrary. But if Congress and the American public have the attorney general on the defensive with their skepticism as to whether he and President Obama fully grasp the nature of the conflict in which we find ourselves, it is with good reason.

At critical junctures in the Global War on Terror, President Obama has opted to take a law enforcement approach to combating terrorist operatives. He has done so, in large part, to visibly demonstrate a departure from the Bush administration’s wartime outlook, as well as to regain perceived lost favor in foreign capitals, particularly in the Muslim world. However, his policies, which grant constitutional rights to terrorists as if they are run-of-the-mill criminal suspects, run the risk of providing strategic advantage to our enemies while creating tactical confusion for those tasked with preventing the next attack.

Trying Khalid Sheikh Mohammed in Federal Court

In November 2009, the Obama administration announced plans to try alleged September 11 mastermind, Khalid Sheikh Mohammed (KSM), and four co-conspirators, in a New York City federal courthouse – only blocks away from the former World Trade Center site. According to Holder, such a venue would offer the greatest chance of successfully convicting the terrorists. However, Holder’s decision is not only imprudent to U.S. national security interests, but unnecessary.

Naturally, the rules for conducting criminal trials differ from those for military tribunals. In criminal court, defendants are provided with information necessary to the case so that they can appropriately shape a defense. However, such information can be dangerous in the hands of the alleged terrorist defendant and his fellow operatives on the battlefield.

Since the United States is in the midst of war with terrorists with no end in sight, there is a real need to guard against the disclosure of classified information. This is especially true given the circumstances of the terrorists’ capture, which is often in the field and not preceded by an exhaustive criminal investigation. Indeed, according to Michael Mukasey, former U.S. attorney general from 2007 to 2009, the prosecution of Sheik Omar Abdel Rahman and others in federal court for their part in the 1993 World Trade Center bombing tipped off Osama bin Laden to the fact that he was on America’s radar. As Mukasey explained, "the government was required to disclose, as it is routinely in conspiracy cases, the identity of all known co-conspirators," including Osama bin Laden. In addition, Mukasey noted how a lawyer’s probing of a witness on the stand during a public trial could elicit information from the witness that he/she would rather keep confidential.

Even Attorney General Holder’s own team at the Department of Justice articulated several ways in which the Military Commission Act of 2009 offers stronger protection from disclosure of classified information than the Classified Information Protection Act (CIPA) that has been used previously in civilian terrorism
trials.

In addition to offering more robust protection of national security, military commissions are fully capable of meting out justice. They comply with the Geneva Conventions requirement that individuals captured in an "armed conflict not of an international character" be tried in a "regularly constituted court that afford[s] all the judicial guarantees…recognized as indispensable by civilized peoples." This is all the more so given that Congress, in response to the Supreme Court’s ruling in the 2006 Hamdan case, enacted additional protections for military commission defendants.

Perhaps the most dangerous consequence of trying Khalid Sheikh Mohammed in federal court is the dichotomy it will establish, pursuant to the logic that Holder himself articulated before the Senate Judiciary Committee in 2009. During that hearing, Holder stated that because civilians were targeted and killed on 9/11, civilian court was the more appropriate venue. On the other hand, those terrorists who bombed the USS Cole in 2000 would be tried before a military commission because the target was military in nature. However, there is a crucial point here that cannot be missed: If followed to its conclusion, this reasoning will have the perverse effect of awarding terrorists who deliberately target civilians greater legal protections than if the targets were military personnel – precisely the opposite of what the Geneva Conventions intended.

Despite the clear desirability and appropriateness of military commissions for trying Khalid Sheikh Mohammed and other perpetrators of 9/11, Attorney General Holder and President Obama (at the time of this writing) have yet to take civilian trials in New York off the table. The administration’s strong preference to view the 9/11 attacks through the prism of law enforcement, entailing the requisite trials in the civilian court system, runs the grave risk of allowing sensitive intelligence information to be disclosed, providing a propaganda venue for al-Qaeda, and incentivizing attacks on civilians.

Closing Guantanamo

In a January 2009 Executive Order, President Obama rationalized closing Guantanamo Bay in part by citing the "interests of justice." However, closing down the detention and interrogation operations at Gitmo has the potential not only to produce numerous KSM-type trials, but even perhaps the release of Gitmo detainees into the United States.

Once the Guantanamo Bay facility is closed, detainees that the Obama administration is interested in trying will inevitably be relocated to the U.S. And once inside, the detainees’ lawyers can argue before federal judges that their physical presence inside the United States entitles their clients to a greater range of constitutional rights. Those being tried will seek to avail themselves of all manner of constitutional protections, perhaps relying at least partially on the 2001 Supreme Court case Zadvydas v. Davis, in which the Court stated: "…once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."

If prosecutions are unable to go forward due to evidence deemed inadmissible by civilian trial standards, defense lawyers can be counted upon to argue that their clients are entitled to be released from custody inside the United States, assuming no other country will take them. Those detainees the president claims he will hold in indefinite detention on U.S. soil will make similar arguments about physical presence inside the United States to assert that indefinite detention cannot withstand legal scrutiny.

The decision to transfer Gitmo detainees to the United States will give those detainees greater access to America’s justice system, and by extension greater access to federal judges sympathetic to arguments that the rights of detainees should be maximized in light of their new location.

Miranda Rights for Terrorist Operatives

The Obama administration’s turn towards a law enforcement model of counterterrorism is equally evident in its treatment of terrorist operatives upon immediate capture. Presumably to ensure that terrorists captured by the United States are eligible for prosecution in federal court, the Obama administration has taken to providing apprehended terror suspects with Miranda rights – the right to remain silent and consult with an attorney.

The most notorious example of this practice was seen in the wake of the thwarted Christmas Day airline bombing. After 50 minutes of questioning by the FBI, agents on the scene read al-Qaeda in the Arabian Peninsula operative Umar Farouk Abdulmutallab his Miranda rights, prompting him to refrain from answering questions for weeks. When he began talking again, administration officials indicated that he was providing "valuable intelligence" – but it is difficult to ascertain with certainty the extent to which the preceding five-to-six weeks of silence on Abdulmutallab’s part resulted in missed intelligence opportunities and provided his handlers with time to hide their activities and regroup.

As troubling as the handling of the Christmas Day bombing attempt was, it can be properly understood as part of a significant policy shift that reportedly began last year, involving Mirandizing terrorists. As reported by The Weekly Standard in the summer of 2009, and according to a former senior defense official involved in the process, the Justice Department was ordered to read Miranda rights to captured high-value detainees held in U.S. detention facilities in Afghanistan. The directive is consistent with the so-called global justice initiative, an Obama administration program where the FBI assumes a central role in counterterrorism, effectively deemphasizing CIA operations in this area. According to a Los Angeles Times report in May 2009:

Though the initiative is a work in progress, some senior counter-terrorism officials and administration policy-makers envision it as key to the national security strategy President Obama laid out [in May of 2009] – one that presumes most accused terrorists have the right to contest the charges against them in a ‘legitimate’ setting.

The approach effectively reverses a mainstay of the Bush administration’s war on terrorism, in which global counter-terrorism was treated primarily as an intelligence and military problem, not a law enforcement one…

The ‘global justice’ initiative starts out with the premise that virtually all suspects will end up in a U.S. or foreign court of law.

Given this shift, it is not hard to envision the ambiguity that could unfold on the ground. If the CIA and military still retain a counterterrorism role, how will the assumption that counterterrorism methods have to stand up in court affect intelligence and military operations? If the shift is wholesale towards the FBI, will the Bureau properly orient its investigations towards preventing the next attack, as opposed to charging and sentencing yesterday’s perpetrator?

Ironically, the Attorney General himself managed to embody this very confusion when queried by the House and Senate as to whether Osama bin Laden would have to be read his Miranda rights upon capture. Before the Senate Judiciary Committee, Holder fumbled his way towards "it depends," after which his first instinct before the House was to avoid the question by surmising that bin Laden would be killed, by us or by his own forces, rendering the Miranda issue moot. The fact that General Stanley McChrystal, recently relieved commander of U.S. forces in Afghanistan, declared the very next day that the mission was still to capture bin Laden alive underscored the extent to which the attorney general has not thought the matter through-and if the attorney general cannot answer the question, how will the newly empowered FBI?

The Way Forward

President Obama, notwithstanding his campaign rhetoric, has rightly defended certain Bush-era counterterrorism practices, such as warrantless wiretapping and the use of unmanned drones to target terrorists abroad. Yet these policies stand out precisely because they are exceptions to the law enforcement rule that has largely characterized the Obama approach to combating terrorism. As such, they could be expected reasonably to raise questions about consistency in American minds while doing nothing to mitigate the damage caused by trying KSM in federal court, closing down Guantanamo, and Mirandizing terrorist operatives.

If President Obama is serious about fighting and winning the war against global terrorism, he should try all unlawful enemy combatants in military commissions in Guantanamo, not in civilian courts inside the United States. Furthermore, he should reverse his decision to shut down detention and interrogation operations at Guantanamo and withdraw the primacy of the FBI as the fulcrum of global counterterrorism operations, and the Miranda practice that necessarily flows from such a policy.

Al-Qaeda and its jihadist sympathizers believe they are holy warriors, not criminals. If the United States seeks to secure victory in this war, then American policies and assets must be oriented to match the threat.

Benjamin E. Lerner is Vice President for Government Relations at the Center for Security Policy.