Time To Depolarize Terror Policy

National Journal

Corrected at 3:00 p.m. on March 12.

For far too long, public debate about terrorism has been dominated by right-wing and left-wing ideologues. In this corner, the Cheneys and their allies. In that corner, the American Civil Liberties Union, gonzo House Democrats and academics, and their allies. In neither corner, common sense.

Typifying the quality of the debate was the ACLU’s wildly overstated full-page ad in The New York Times on March 7 darkly suggesting that President Obama would be subverting "our Constitution and due process" if he abandons his administration’s politically toxic plan to move the prosecution of five accused 9/11 conspirators from a military commission to a federal civilian court. The centerpiece of the ad was a drawing of Obama’s face morphing into that of George W. Bush — who seems to be more hated in ACLU-land than Osama bin Laden.

Meanwhile, hard-right conservatives including Liz Cheney and William Kristol have been running a deeply misguided campaign, including a video emblazoned with "DOJ: Department of Jihad," to smear as disloyal several lawyers now working in the Obama Justice Department. They previously represented Guantanamo detainees or sought due process protections for people who might be innocent.

The best hope for replacing this sterile right-left shout-fest with a bipartisan, commonsense approach to terrorism may be the diligent efforts of Sen. Lindsey Graham, R-S.C., to find common ground with the Obama administration. And the time is ripe for the president to realize that a grand bargain with Graham — including comprehensive legislation on how to handle suspected terrorists, closing the Guantanamo prison camp, and related issues — could help him recover from blunders such as seeking to try the 9/11 defendants in Manhattan.

Graham and Obama have broad areas of agreement. They both want fair and credible criminal trials of as many terrorism suspects as possible. They both want to continue holding as enemy combatants, under the international law of war, those truly dangerous detainees who cannot be prosecuted because the evidence against them is too sensitive for courtrooms or is insufficient to prove crimes beyond a reasonable doubt. They both want Congress to remove the taint of arbitrary executive power from those detentions by adopting clear, consistently applied due process protections. They both want to get potentially lifesaving intelligence from newly captured terrorists.

And they both want to close Guantanamo, because it is such a symbol of lawless detention and torture abroad that allied governments have refused to turn over terrorism suspects unless assured that they will not end up there.

Those are the elements of the bargain that Graham seeks and Obama should pursue. Whether Graham could persuade many other Republicans to support closing Guantanamo is unclear. But it’s worth a try.

So it’s a shame that discussions with officials, including White House Chief of Staff Rahm Emanuel, former White House Counsel Gregory Craig, and Attorney General Eric Holder, have left Graham unable to figure out who is in charge. It’s also a shame to hear a White House spokesman saying that no decision will be made for "weeks" on where to try Khalid Shaikh Mohammed and his four 9/11 co-defendants.

Can’t these people ever decide anything fast?

The first step toward a comprehensive solution — in Graham’s view — would be for Obama to move the 9/11 co-defendants’ case back to a military commission, as key advisers have reportedly been urging him to do.

I have mixed feelings about that. Last fall, I defended Holder’s decision to try the 9/11 defendants in federal court in Manhattan. (See "No Need to Fear a Manhattan Terrorist Trial," NJ, 11/21/09, p. 17.) But unlike Graham — who had long warned the administration that such a move would blow up in Obama’s face — I failed to foresee the unpopularity of that venue and anticipate the enormous security costs.

I still see a civilian trial for the 9/11 defendants somewhere outside Manhattan as the best approach. That would have more legitimacy in the eyes of the world and pose less risk of reversal by the Supreme Court than a military trial, especially one at Guantanamo. I can also understand why administration officials bridle at senators wielding appropriation riders to block civilian trials.

But in the 9/11 case, Graham has powerful political forces on his side. And while justice should not be sacrificed on the altar of politics, a military commission — as currently constituted — is a just alternative to a civilian trial.


I still see a civilian trial for the 9/11 defendants somewhere outside Manhattan as the best approach.


To be sure, the commissions were so plagued by start-up problems as to be something of an embarrassment after Bush created them in 2001. The Supreme Court declared them inadequate in 2006, and they are still disdained by the Left. But Congress greatly improved the commission process in 2006 and again in 2009, thanks in part to Graham’s leadership. The rules are now quite fair to defendants.

So Obama might be well advised to use a military commission for the 9/11 defendants’ case if — and only if — doing so could set the stage for a grand bargain with Graham on the other issues discussed below.

The president should pay no attention to hysterical rants by ideologues such as ACLU Executive Director Anthony Romero that using a military commission "would doom this president’s commitment to civil liberties and the rule of law."

Nor should Obama heed the nutty demands from the Right that all prosecutions of suspected jihadist terrorists must go to military commissions, as Republicans and Sen. Joe Lieberman, ID-Conn., are seeking to require. Both Lieberman and Sen. John McCain, R-Ariz., should know better.

At times, Graham, a former Air Force prosecutor who is a colonel in the Air Force Reserve, has seemed sympathetic to such sweeping proposals. But more recently, he has acknowledged that federal courts have a role to play in trying suspected terrorists, including Umar Farouk Abdulmutallab, the Nigerian who was caught in the act of trying to blow up an airliner on Christmas Day.

Military commission trials, while appropriate in some cases — especially those involving national security secrets — should remain the exception, as they were under Bush, rather than the rule. Many terrorists, and many scores of smaller-fry defendants with ties to terrorism, have been successfully tried and convicted in civilian federal courts.

Apart from their greater perceived legitimacy and the smaller risk that the Supreme Court will reverse any convictions, the federal courts are more flexible than military commissions in the range of possible criminal charges and in other important respects. And many foreign governments might refuse to extradite suspects to face trial in military commissions.

Graham seeks the following key ingredients in comprehensive legislation.

•It would legitimatize the detention without trial of dangerous Guantanamo (and other) detainees who have committed no prosecutable crimes, while at the same time giving courts clear rules for providing due process and periodic reviews to those who claim not to be enemy combatants.

•It would establish rules for deciding the circumstances under which foreign terrorism suspects captured in the future should be detained under the law of war, and interrogated for days or weeks without Miranda warnings, and also for determining whether to prosecute them in civilian courts or military commissions. Holding them as enemy combatants would remain an option for those who cannot be prosecuted at all.

•It would bar release into the United States, if the executive branch objects, of detainees who are determined by judges not to be enemy combatants.

•It would provide for closing Guantanamo as soon as the detainees can safely be moved to a prison in the U.S., presumably the one in Illinois that the administration has sought congressional funding to purchase, so far in vain.

Graham might find it very difficult to round up other Republicans to support closing Guantanamo. The prison has become a darling of the jingoistic Right. But Graham can, and does, remind his colleagues that even Bush, and even Republican presidential nominee McCain, recognized the need to close the prison. Few Republicans disagreed until the issue became a stick with which to beat Obama.

Speaking of sticks with which to beat Obama, while it is fair game for Republicans to demand disclosure of the past representation of Guantanamo detainees by Obama’s Justice Department appointees, the efforts to smear these lawyers as disloyal are shameful.

"Shameful" was the word used to denounce this smear in a recent statement signed by prominent lawyers who served under President George W. Bush, President George H.W. Bush, and President Reagan. The signers include Brad Berenson, John Bellinger, Larry Thompson, Philip Zelikow, Peter Keisler, Matthew Waxman, Kenneth Starr, David Rivkin, Lee Casey, Chuck Rosenberg, and Charles (Cully) Stimson. Benjamin Wittes, a centrist from the Brookings Institution, prepared the statement.

By the way, can anyone remember all the prominent Democrats who have publicly denounced the similarly shameful left-wing campaign to wreck the careers of two Bush Justice Department lawyers? They approved — as did at least 14 colleagues — the legality of waterboarding and other brutal interrogation methods, subject to CIA assurances that they would be carefully limited. For some reason, I can’t think of a single one.

CORRECTION: The original version of this report incorrectly identified the American Civil Liberties Union.

This article appeared in the Saturday, March 13, 2010 edition of National Journal.