Civilian Trials and the So-Called Rule of Law

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Salon.com

Civilian Trials and the So-Called Rule of Law

I was wondering if someone could reconcile these three things:

From Obama terrorism adviser John Brennan, on this weekend's Meet the Press:  

MR. GREGORY: Why isn't [Umar Farouk AbdulMutallab] being treated as an enemy combatant instead of a criminal?

MR. BRENNAN: Well, because, first of all, we're a country of laws, and what we're going to do is to make sure that we treat each individual case appropriately. In the past Richard Reid, the former shoe bomber; Zacarias Moussaoui; Jose Padilla; Iyman Faris; all of them were charged in criminal court, were sentenced some in -- in some cases to life imprisonment. 

From The New York Times, September 24, 2009:

The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantánamo Bay, Cuba, officials said Wednesday.

Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban.

In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.

From CNN, November 13, 2009:

Holder also announced that five other detainees held at the U.S. military detention facility at Guantanamo Bay, Cuba, will be sent to military commissions for trial. They were identified as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri.

So in order to justify giving a civilian trial to AbdulMutallab, John Brennan cites the fact that we are "a nation of laws."  Progressives defending the decision to treat AbdulMutallab as a civilian criminal are similarly invoking "the rule of law."  The Washington Monthly's Steve Benen, for instance, cites The American Prospect's Adam Serwer to argue that "'it's really remarkable that we've gotten to a point in American history where the Republican Party has managed to make fair trials for people who commit crimes 'controversial'" and adds: "that Brennan has to mount a 'defense' for following the rule of law, the same exact way the Bush administration did, suggests just how far the discourse has strayed from reality."

Benen is right that the Obama administration is essentially doing what the Bush administration did with regard to terrorism suspects, but what does that have to do with "the rule of law"?  How can anyone possibly argue simultaneously that (a) the "rule of law" requires civilian trials and (b) the Obama administration is following the "rule of law," when: (c) the Obama administration is explicitly denying civilian trials to numerous terrorism suspects whenever it feels like doing so?  If someone actually believes that "the rule of law" requires civilian trials for terrorism suspects, then it cannot be rationally argued that the Obama administration is upholding the "rule of law," since providing civilian trials -- which the "rule of law" supposedly requires -- is a policy they are explicitly rejecting.

In order to explain this glaring contradiction, many Obama defenders -- following the administration itself -- have started to distort rather significantly what the "rule of law" means and what it requires, in order to squeeze Obama's hybrid approach into it.  Here's what Josh Marshall said in defending a civilian trial for AbdulMutallab:

The truth is, until President Obama got into office and Republicans needed a new political attack angle, the idea barely occurred to anyone that you wouldn't do a regular trial with someone you had plenty of evidence against.

I was always under the impression that "the rule of law" requires charges for all people accused of crimes whom we want to imprison -- not only those against whom "you had plenty of evidence."  If the "rule of law" only requires a trial when the State is absolutely certain it can convict someone because it has "plenty of evidence against them" -- and then allows the use of military commissions or indefinite detention when the evidence is weak -- then "the rule of law" is a ludicrous joke.  Criminally charging  people only when you know in advance you can win -- and imprisoning the rest without the benefit of criminal charges -- is a sham system of show trials that is the opposite of "the rule of law."  What uncontroversial precept of justice ever suggested that the level of due process to which one is entitled is in any way dependent upon the amount and strength of evidence the State has to convict you?  None that I've ever heard of -- at least not until this year.  If anything, isn't it even more imperative under "the rule of law" to give a real trial to someone when -- unlike KSM or even AbdulMutallab -- the evidence against them is weak and/or they deny the accusations against them?

In order to suggest that the Obama administration is following some sort of time-honored and uncontroversial precept of justice, Marshall claims that the Bush administration used this same standard:  namely, that they gave civilian trials to everyone the knew they could convict.  Benen says the same thing when discussing the Richard Reid prosecution:  "Military tribunals existed at the time, but they were used when officials didn't have enough evidence to try terrorist suspects in a federal criminal court."  But that is really not true.  The Obama DOJ insists -- as did the Bush DOJ -- that there is a mountain of evidence against Khalid Sheikh Mohammed and his co-defendants such that a conviction is basically 100% guaranteed.  Despite that, the Bush administration placed Mohammed and the others before a military commission, not a civilian trial.  

The reality is that the Bush administration used a discretionary multi-tiered justice system for terrorism suspects:  they gave civilian trials to some, put others before military commissions, and held the rest indefinitely without charges.  That's exactly what the Obama administration's policy is.  Back then, virtually no progressives claimed that the Bush administration was "upholding the rule of law" by granting civilian trials to some terrorism suspects and denying them to the rest.  How can it possibly be the case that the Obama administration is upholding "the rule of law" when, to use Benen's words, it is according rights to terrorism suspects "the same exact way the Bush administration did" (albeit with some improvements to the military commissions and some new discretionary guidelines to use for who gets a civilian trial and who does not)?

It is perfectly fair and accurate to point out that Cheneyite Republicans are being partisan hypocrites for attacking the Obama DOJ for doing exactly that which the Bush administration did:  namely, trying some terrorism suspects in civilian courts and holding the rest without trials.  But what about progressives who spent eight years accusing the Bush administration of "shredding the Constitution" and gravely assaulting our political system as a result of its detention policy, yet who are now venerating the Obama administration as "upholding the rule of law" even as they deny trials to scores of detainees?

* * * * *

A new article on Obama's terrorism policies in The New York Times Sunday Magazine by Peter Baker received substantial attention, though not enough, in my view, on the most important point Baker documented.  Matt Yglesias, for instance, notes that "a half-dozen former senior Bush officials involved in counterterrorism" told Baker that they approve of Obama's counter-terrorism approach but, for cowardly reasons, won't say so on the record.  I agree with Yglesias that this refusal bespeaks very poorly of the character of those individuals, though fear of alienating powerful people and potential future employers is hardly unusual for Washington.  I think the far more interesting question is why so many top-level Bush officials would find so much to love in Obama's approach, and multiple passages in Baker's long article provide the answer:

In fact, the new president, during his first year, has adopted the bulk of the counterterrorism strategy he found on his desk when he arrived in the Oval Office, a strategy already moderated from the earliest days after Sept. 11, 2001. . . . The policies themselves, though, have not changed nearly as much as the political battles over closing the prison at Guantánamo Bay and trying Khalid Shaikh Mohammed in New York would suggest. "The administration came in determined to undo a lot of the policies of the prior administration," Senator Susan Collins of Maine, the top Republican on the homeland-security committee, told me, "but in fact is finding that many of those policies were better-thought-out than they realized -- or that doing away with them is a far more complex task." . . . Michael Hayden, the last C.I.A. director under Bush, was willing to say publicly what others would not. "There is a continuum from the Bush administration, particularly as it changed in the second administration as circumstances changed, and the Obama administration," Hayden told me. James Jay Carafano, a homeland-security expert at the Heritage Foundation, was blunter. "I don't think it's even fair to call it Bush Lite," he said. "It's Bush. It's really, really hard to find a difference that's meaningful and not atmospheric. You see a lot of straining on things trying to make things look repackaged, but they're really not that different" . . . . A senior Obama adviser scoffed at the idea that Bush advisers see continuity, arguing that they are trying to launder their reputations by claiming validation. But it is true that much of the Bush security architecture is almost certain to remain part of the national fabric for some time to come, thanks to Obama.

As Baker notes, the "tone" Obama uses to talk about these things is different (and that, in my view, matters).  Moreover, Obama explicitly banned several Bush policies that were already discontinued by the time he was inaugurated ("enhanced interrogation techniques," CIA black sites, circumvention of Congressional statutes on detention and surveillance).  And, though Baker does not note this, Obama has also recently taken some potentially meaningful steps to increase government transparency.  But as Adam Serwer has explained, the most important point of Baker's discussion is that there are very few real policy differences between the two administrations in these areas, and Dick Cheney's embittered attacks on Obama (and the media's obsession with them) have done a favor for the administration by casting the false appearance that there are.  

Indeed, as demonstrated by the progressive praise of Obama for "upholding the rule of law," the most significant consequence of his first year in office, in the area of civil liberties, is that -- with a few exceptions (most notably torture) -- he has transformed what were once highly controversial Republican "assaults on the Constitution" into bipartisan consensus which both parties now embrace, thus ensuring -- as Baker put it -- "that much of the Bush security architecture is almost certain to remain part of the national fabric for some time to come, thanks to Obama."  Thus, a President who imprisons people with military commissions or even no charges at all -- and constantly invokes secrecy claims to shield the Executive Branch from judicial review over allegations of lawbreaking -- is now hailed -- by progressives -- as a stalwart defender of "the rule of law."

Glenn Greenwald

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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