17 November 2008

Obama & Gitmo

By Andrew C. McCarthy

It is time for Barack Obama to pay the piper.

For years, he and his fellow Democrats delighted in demagoguing the detention facility at Guantanamo Bay, Cuba, where the military is still holding approximately 250 alleged enemy combatants men (down from over 800). Now, after all their bombast about the urgent need to close the facility — the better, they harangued, to improve our standing in the “international community” (compared to whose prisons Gitmo is actually a model of humaneness) — the president-elect must face a harsh reality.

For the American community, Gitmo was never the problem, and closing it will not solve anything.

Candidate Obama called for a return of pre-9/11 counterterrorism thinking, meaning full-blown civilian trials for all captured terrorists. Come January 20, though, President Obama’s principal task will be to protect the national security of the United States, not to secure the admiration of Human Rights Watch. Thus he will confront the stubborn fact the not every jihadist who poses a danger to American lives can be brought to trial and proved guilty beyond a reasonable doubt in accordance with our civilian due process standards.

When he finally assumes the Oval Office, the realization will come quickly — if it hasn’t already — that international terrorism fueled by Islamic extremism is different, not just in degree but in kind, from even the worst waves of violent crime. The criminal justice system is simply not capable of apprehending and neutralizing everyone we need to capture and sideline.

A certain component of human nature — the one that watched the Left mercilessly drub President Bush as he tried to protect the country — yearns to revel in Obama’s self-induced straits. That impulse needs to be resisted. The president-elect promised a host of things he won’t be able to deliver. For those seeking to score political points, it’s not like there won’t be opportunities aplenty. National security, however, is something we need him to get right.

So here is some unsolicited but earnestly offered advice: Mr. President-elect, you and your emissaries should not make any more public commitments about what will happen with Gitmo and the detainees until your transition team has ample opportunity to study each individual combatant case. There has already been way too much uninformed commentary. This only hamstrings your maneuvering room and stands to damage your credibility when, as is inevitable, you find disproportion between a detainee’s actual dangerousness and the courtroom provability of his dangerousness.

In ordinary criminal investigations, we leave suspects at liberty until enough evidence has been amassed to make out a prosecutable case. Terrorists, however, are plotting mass-murder, not fraud or some other mundane offense. We can’t afford to let them play out the string. We know some of them mean us grave harm — 9/11-type harm — because of intelligence that cannot be revealed in court lest precious sources be compromised. We know others pose equal peril thanks to interrogation statements that can’t be relied on at trial — not, as Lefty lore has it, because of “torture,” but simply because the statements were not elicited after Miranda warnings (making them inadmissible under the criminal-friendly warping of the Fifth Amendment favored by the type of jurists Obama promises to seed throughout the federal bench).

The excruciating problem of danger that can’t responsibly be proved in court is everyday life for a president. Senators and law school profs can bloviate with impunity about “American gulags” and “legal black holes.” Not presidents.

The president-elect’s resume identifies him foremost as an activist lawyer. I come to it from the other ideological side, but I know the feeling. It is painful for those of us who revere the law, who have been schooled in the illusion that legal processes are society’s final word on issues of great public importance, to learn that there are more consequential things.

“Justice” does not necessarily mean convicting the guilty. A president’s paramount duty is to protect innocent life. Sometimes, you can’t do both. You have to choose. As a practical matter, sometimes it is more vital to maintain secrecy — to refrain from disclosing, say, the existence of a wiretap that is yielding valuable intelligence about terrorist plans — than it is to convict a terrorist by using (and thus exposing) the fruits of the wiretap. Sometimes, it is more essential to keep a promise of confidentiality than to prosecute a terrorist but risk losing the cooperation of the foreign intelligence service that gave us the evidence — especially when that intelligence service has assets we lack in the badlands where the threat to us originates.

The combatants held at Guantanamo Bay are military prisoners. They have been detained based on military combatant status review tribunals, and a select few are being prosecuted by military commission. This means the Department of Defense has dominated the process. There has been relatively little Justice Department involvement. That is an unacceptable state of affairs for a new president contemplating a decision of grave consequence.

Obama needs to know the facts. That’s where experienced prosecutors can help him. Prosecution is not ideological. It is a matter of applying law to facts. It is not “conservative” or “liberal” by nature. Its defining ingredient is competence.

Fortunately, President-elect Obama has an abundance of competence at the ready. I happen to have worked on a bipartisan Patriot Act reauthorization project with John Podesta, the Clinton administration chief-of-staff who is heading up the Obama transition. We often differed deeply on where lines between privacy and security should be drawn, but this was no ACLU la-la land. The Democrats Podesta brought to the table — former law enforcement and intelligence pros — were impressively serious about making sure our agents had the legal tools necessary to collect intelligence and prevent attacks.

President-elect Obama will have resort to those and other advisers, several of whom were superb federal prosecutors. Moreover, he will soon have the benefit of the Justice Department’s wealth of top legal talent — law-enforcement professionals, not Republican or Democrat partisans. If the president-elect is going to be successful on this crucial national security matter — a matter on which all of us need him to be successful — he needs to put that talent to work now, before making any more commitments about the fate of the detainees.

With no disrespect to military lawyers, they are not schooled in the intricacies of civilian terrorism cases. The proof against each of the remaining detainees should be scrubbed by experienced prosecutors, current or former, who have the security clearances necessary to learn any relevant classified information. These lawyers should advise President-Elect Obama, case-by-case, whether we have enough admissible evidence to try each combatant in civilian court. That detailed advice must account for (a) the fact that we are still in a hot war and must not give our enemies insights about the state of our intelligence, and (b) civilian due process rules, which give defendants generous discovery rights, requiring an assessment not only of the intelligence needed to prove the government’s case but also the intelligence a detainee might seek to disclose in defending against charges.

President Obama should have his transition team and his eventual Attorney General nominee work closely with Attorney General Michael Mukasey, one of the nation’s preeminent authorities on terrorism prosecutions. The president-elect should further take special care in choosing an appointee to lead the Justice Department’s National Security Division. The bill should be filled by a well-respected, experienced former (or current) prosecutor who can evaluate the detainee cases and report to the AG and the president on the viability of prosecution in civilian court.

Whether Gitmo is closed or not, President-elect Obama is going to have to decide what to do with the detainees — to say nothing of future combatants who may be lethally dangerous but non-triable. His decision should be informed by comprehensive, accurate information. In his haste to make good on campaign posturing, Obama must not move detainees into the U.S. and consign all of them to the criminal justice system only to learn afterwards that a paltry percentage at best can be successfully tried. That would bring discredit to him and his Justice Department when they should be establishing credentials for competence and counterterrorism seriousness. It would embolden our enemies and endanger our country.

Finally (at least for now — there is so much more to say about all this), President-Elect Obama must not merely repeat his trope about our commitment to the “rule of law.” He must come to terms with what that ideal really means. The phrase is not the equivalent of “trial by jury in federal court.” It means doing what is lawful — a critical distinction for the commander-in-chief responsible for our security.

The rule of law includes, and has always included, detention without trial for wartime captives. Leaving its common sense aside (how do you win a war if you keep releasing the other side’s fighters?), such detention has long been proper under the laws of war. Furthermore, it was reaffirmed by the Supreme Court in the 2004 Hamdi case — a ruling that approved the wartime detention without trial of an American citizen combatant.

Holding combatants until the conclusion of hostilities, or at least until they can be repatriated in a way that renders them no longer a threat, is not just appropriate; it has been the default state of affairs in every war ever fought by the United States.

There is much to debate, and much work to be done, over the process due to combatants who are held but not tried. Neither our military nor ordinary American citizens want us to be detaining innocent people. But let us not start from the premise that we are doing something wrong by capturing and holding our enemies. That’s backwards.

In truth, we are taking necessary and proper measures to protect American national security. With that as our starting point, we are working out a process — whether it’s a new system or a refinement of the current system — to weed out inevitable mistakes. That’s what we must do. President-elect Obama would help himself immeasurably if, from here on, his rhetoric matches that reality

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