In light of Attorney General Eric Holder’s announcement, a few thoughts. For one, although it was not entirely his own decision, I believe the decision on military tribunals has more to do with pragmatism than the inability to fight Congress (and I am also grouping the GITMO closing into that), however very few would agree. Guantanamo Bay serves a unique purpose in a unique war. No doubt the men being held there would have, if released, caused unthinkable harm to national security. To my knowledge, the recidivism rate of individuals previously released is strikingly high. These are truly dangerous people.
I had a long post written yesterday afternoon in which I tried to convince myself that the military tribunal decision was the right one. But then I spoke with a friend last night who pushed me in the other direction, for reasons I will highlight. Also, as the New Yorker points out, there is a lot to this issue that was lost in an initial casual analysis.
What makes this issue so difficult to come down on is that it deals with fundamental questions about how you view the United States, the rule of law, and the importance of credibility. It is too simple (and all too easy) to gloss over the nuance hidden in the details of military versus civilian federal trials. The previous administration used “terrorism” to justify almost everything because it was a unifying and terrifying theme. And you see the same sorts of argument emanating from current proponents of military tribunals, e.g. safety, prisoners of war, attacking the U.S., ect. But if you follow that logic, you end up in neo-con zone, in which you violate the very values you are propagating. On the one hand we promote democracy, the rule of law, due process and human rights, and at the same time, try these individuals without due process in shadow courts? And it IS partly about how the rest of the world views our actions. Those perceptions matter.
There are precedents available for trying (and convicting) individuals for terrorism and conspiracy to commit terrorist acts. Consider the Ramsi Yousef case, or the Timothy McVeigh case.
One major point missing from this debate is the issue of extraordinary rendition and enhanced interrogation techniques. There is considerable political pressure to try these individuals with as little transparency as possible because the issue of enhanced interrogation techniques, or torture, is inevitable. And then what? I have no personal insight into such actions, or for that matter knowledge about the cases compiled against some of the big names, like KSM. But it is certainly easy to envision a scenario where a key individual gains traction on an appeal that would eliminate any personal confession from admission into court because of enhanced interrogation.
Who knows. These questions are critical and having this discussion is important.