Eric Holder's Boo Boo

As I've noted before, I support military commission trials for terror suspects such as Khalid Sheikh Mohammed. I support them for a simple reason: I don't know how you provide a fair criminal trial to someone who was kept away from an attorney for over four years and drowned 185 times in a month.

I've become rather familiar with the U.S Constitution over the last quarter century, and I have yet to find the "Unless you're a terrorist" clause that so many Americans seem to think is in the text. Indeed, in the absence of an "Unless you're a terrorist clause," there's really nothing stopping the government in subjecting all kinds of suspects to the kind of treatment the al-Qaeda suspects have endured.

Why not, for example, take a kidnapping suspect to Poland and waterboard him until he reveals the location of his victim? Why not do it when you arrest someone for producing child pornography? In both cases, it would provide "actionable intelligence," wouldn't it?

A reading of the first section of the Fourteenth Amendment might be helpful in this regard.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If you want to get all "orignialist" about this in regards to Mohammad, let's.

The Fourteenth Amendment was ratified on July 9, 1868, slightly more than three years after the end of the Civil War. During that war, any number of "enemy combatants" were held by the military, as were several civilians. This was legal, as Congress had suspended the writ of habeas corpus as the Constitution demands it must in Article 1, Section 9. I'm therefore pretty sure that the drafters of the Amendment had the president's war powers in mind.

Since they were ordered into existence by the president and funded by the Congress, I'm not sure how anyone can argue that Guantanamo Bay and all of the CIA's "black sites" aren't "subject to the jurisdiction" of the United States. All of the personnel therein are subject to both American criminal law and the Uniform Code of Military Justice, both of which were passed by Congress and signed by the president.

Any fair civilian trial would have to take those violations into consideration, even if the "fruit of the poisonous tree" (the evidence that was gained from interrogations without counsel present and certainly from waterboarding) was never introduced. In any criminal case, those violations of a suspect's rights, regardless of whether the suspect was a citizen, would result in an immediate dismissal with prejudice.

One could argue that since Khalid Sheikh Mohammed was indicted in the Southern District of New York in January of 1996, some six years before his capture, that constitutional protections had already been extended to him and that any change in his treatment by the United States government subsequent to that indictment is an unconstitional ex post facto law, assuming that any law at all governed his interrogation.

Those are the standards that any criminal court must apply for any trial to be considered fair.

In fact, because the evidence gained by the CIA in the "black sites" also violates the Uniform Code of Military Justice, it is inadmissible in military commissions as well, and the military has already admitted as much. However, the rules of evidence under the laws of war are much looser than in civilian courts and immediate dismissals are almost unheard of.

Involving the CIA in the interrogations suggests to me that the United States never intended to try any of the al-Qaeda detainees at all. Under anyone's definition, CIA officers are themselves "enemy combatants." They wear no uniform, hold no rank, nor bear any national insignia. The entire purpose of the CIA is espionage, which is punishable by summary execution under the accepted laws of war. Virtually anything the Agency produces is inadmissible in a court, either civilian or military.

The fact that the CIA was given the task of interrogating detainees, even though they don't have the experience in doing so that both the military and federal law enforcement does, suggests that the United States understood full well that their tactics were in violation of both federal law and any number of treaties it has signed. Why wouldn't the U.S military conduct those interrogations, which it has been trained to do, unless everyone involved knew that aspects of those interrogations would violate any number of laws and treaties to which the military is subject?

That's one thing that advocates of "the unitary executive theory" never address. The president's constitutional "Commander-in-Chief" power does not allow him to waive the UCMJ since that is an undeniable act of Congress and doing so would subject him to impeachment and removal from office, to say nothing of any subsequent criminal prosecution. If that's true - and it is - it calls into question the entire theory that Commander-in-Chief" power allows the president to subvert any other laws.

If the "unitary executive theory" were constitutionally reasonable, the Commander-in-Chief could respond to Congress cutting of funds for one program or action by diverting funding for another out of "military necessity." Of course, this is constitutional nonsense and would create a civilian-headed military dictatorship under the Constitution.

That's doubly true in a "war" without a defined enemy, battlefield, or terms of surrender. How does one conduct a war against an enemy that has no chain of command with the designated authority to surrender or sue for peace?

Advocates of the unitary executive theory have suggested that the "battlefield" extendes to the United States itself and American citizens can be declared "enemy combatants, who could therefore be stripped of the constitutional protections that are their birthright. They also seem to argue that there's nothing that Congress can do about it once they authorize the use of military force.

But I digress. I do that sometimes.

Jane Mayer wrote a superior article for your consideration in last weeks New Yorker that posits that civilian trials may in fact be far tougher than military commissions.

For all the tough rhetoric of the Bush Administration, it prosecuted many more terror suspects as criminals than as enemy combatants. According to statistics compiled by New York University’s Center on Law and Security, since 2001 the criminal courts have convicted some hundred and fifty suspects on terrorism charges. Only three detainees—all of whom were apprehended abroad—were convicted in military commissions at Guantánamo. The makeshift military-commission system set up by Bush to handle terrorism cases has never tried a murder case, let alone one as complex, or notorious, as that of Khalid Sheikh Mohammed, who will face the death penalty for the murder of nearly three thousand people.

The Bush Administration obtained life sentences in the criminal courts for two terror suspects arrested inside the U.S.: Richard Reid, the so-called shoe bomber, and Zacarias Moussaoui, who was planning a second wave of plane attacks. (Reid was read his Miranda rights four times.) When the Bush Justice Department obtained these convictions, the process was celebrated by some of the same people now criticizing Holder. Giuliani, after the Moussaoui trial, said, “I was in awe of our system. It does demonstrate that we can give people a fair trial.”

Holder told me that he was “distressed” that people “who know better” were claiming that the courts were not up to the job of trying terrorists. He added that he found it “exceedingly strange” to hear this argument from Giuliani, who had been a zealous prosecutor. “If Giuliani was still the U.S. Attorney in New York, my guess is that, by now, I would already have gotten ten phone calls from him telling me why these cases needed to be tried not only in civilian court but at Foley Square,” Holder said.

There is no evidence suggesting that military commissions would be tougher on suspected terrorists than criminal courts would. Of the three cases adjudicated at Guantánamo, one defendant received a life sentence after boycotting his own trial; another served only six months, in addition to the time he had already served at the detention camp; the third struck a plea bargain and received just nine months. The latter two defendants—Salim Hamdan, a Yemeni who worked as Osama bin Laden’s driver, and David Hicks, an Australian who attended an Al Qaeda training camp—are now at liberty in their home countries, having been released while Bush was still in office. It’s impossible to know how these same cases would have fared in the civilian system. But the case of John Walker Lindh, the so-called American Taliban, offers a comparison between the two systems, as it closely parallels the case of Yaser Hamdi, a Saudi-American who was captured in the same place (Afghanistan) and at the same time (2001). Lindh, who pleaded guilty in a criminal court, is now serving twenty years in prison. Hamdi, who was declared an enemy combatant, was held in military detention, without charge; in 2004, after a court challenge, he was freed, and is now in Saudi Arabia.

Michael Mukasey, who was Holder’s predecessor as Attorney General, has suggested that the military system is better at making terrorists talk. Last month, in the Wall Street Journal, he argued, “Had Abdulmutallab been turned over immediately to interrogators intent on gathering intelligence, valuable facts could have been gathered and perhaps acted upon.” But the conventional court system has proved surprisingly effective at extracting intelligence. Dozens of suspected terrorists in the criminal system have coöperated with the government, usually in exchange for leniency in sentencing. The government is currently receiving valuable information from David C. Headley, who was indicted last December, in Chicago, for his involvement in terrorism conspiracies in India and Denmark. And, last week, the Justice Department confirmed that Abdulmutallab was now coöperating with the F.B.I. A department official noted, “He has an incentive to talk in the criminal-justice system, which the other system doesn’t offer.” The key to gaining Abdulmutallab’s coöperation was the F.B.I.’s ability to enlist his family in getting him to talk. Holder asked me, “Would that father have gone to American authorities if he knew his son might be whisked away to a black site”—a secret prison set up in a foreign country—“and subjected to enhanced interrogation techniques? You are much more likely to get people coöperating with us if their belief is that we are acting in a way that is consistent with American values.”

The fact of the matter is that the courts can't fairly try most, if not all, of the Guantánamo detainees, and certainly not those that had been previously indicted by civilian courts before 9/11, like Khalid Sheikh Mohammed. Their constitutional protections have already been violated well past that point that any other defendant would have his case automatically dismissed, which raises equal protection concerns in anyone who has even heard of the Fourteenth Amendment.Moreover, Mohammed was obviously "subject to the jurisdiction of" the United States from the second he was indicted in January of 1996, otherwise he couldn't have been indicted.

There's another factor that most American commentators, and even government officials, are overlooking. The War on Terror is overly reliant on the cooperation of foreign governments, most of whom are signatories of the International Criminal Court and haven't done things like change the definition of torture simply because they aren't inclined to change the laws or withdraw from the treaties governing it.

If I were the prime minister of Canada, I would be very reluctant to turn terror suspects over to the United States, knowing that if the suspect was tortured or was likely to be, I myself would be subject to prosecution, either at home or at the International Criminal Court. Since members of the American military were prosecuted for waterboarding as long as a century ago, it would be hard to argue that waterboarding isn't a violation of both domestic and international law.

How can the national security interest of the United States be served when most of the democratic countries of the world are afraid to co-operate with it, lest they be prosecuted themselves for complicity in war crimes? How do you prosecute a war that way, if, in fact, this actually is a war as war is commonly understood? You can't just shuffle detainees back and forth between civilian and miltary trials with no certainty in procedure and expect the rest of the world to co-operate with that.

Contrary to what Jane Mayer suggests, it isn't necessarily Guantánamo itself that the rest of the world disagrees with. In and of itself, Guantánamo is a proper place for international outlaws dedicated to making war against the United States.

The problem lies with what happens on the road to Guantánamo. The case of the Chinese Uighurs is instructive. Even the Bush administration decided that they weren't enemy combatants, but they couldn't find any place to take them, and craven American politicians wouldn't allow them into the United States. They couldn't be returned to China because of the certainty of what the barbaric Chinese would do to them. These are the sort of things that should have been determined before they arrived at Gitmo.

Given that so many Guantánamo detainees have been released without any action at all taken against them, one has to question the proceedures that sent them there in the first place. And it would also be nice to know how many were tortured on their way there. By that, I don't mean John Yoo's insane definition of torture that only involves "organ failure and death" and could allow for a detainee's child having his testicles crushed in front of his parents. I mean torture as the rest the civilized world recognizes it.

We may not get a vote in American policies, but we certainly get a vote in the people and information that we turn over to the United States.

On September 12th, 2001, French newspaper headlines declared that "We All Americans Now," and I felt that way long before 9/11. But because of the way that the War on Terror has been conducted, where even things as serious as torture can be redined and the greatest governing document in human history, the United States Constitution, is seen as more of an impediment than a roadmap, America has largely become, in the words of Justice Antonin Scalia, "a country I do not recognize."

The United States is now prepared to change the status of the Guantánamo detainees for at least the third time. How does that promote stability for countries that really do want to help against the jihadis, but don't want to sell their souls in doing so? This is about far more than trying some criminal scumbags. This is about justice, and the very idea of America itself in the eyes of the rest of the world. And that requires some consistency. We can't judge your ideals until you finally decide what they are.

But, at some point, the only allies the United States will have in the War on Terror are the nightmare regimes of Egypt, Saudi Arabi and Pakistan, which produced all of the terrorists in the first place. And I can't imagine that's what most Americans want.

If this is a war, you rely on us every bit as much as we rely on you.