{"id":324547,"date":"2010-02-15T15:17:19","date_gmt":"2010-02-15T20:17:19","guid":{"rendered":"http:\/\/opiniojuris.org\/2010\/02\/15\/the-politics-of-gitmo-2\/"},"modified":"2010-02-15T15:17:19","modified_gmt":"2010-02-15T20:17:19","slug":"the-politics-of-gitmo","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/324547","title":{"rendered":"The Politics of Gitmo"},"content":{"rendered":"

by Deborah Pearlstein <\/em><\/strong><\/p>\n

Cross-posted at Balkinization<\/a><\/p>\n

This is a post about politics, not law. How could it be otherwise in engaging the public debate these days over the chronic cluster of post-9\/11 terrorist detention, interrogation and trial issues? Demagoguery by Mitch McConnell and his Republican cohort over the Administration\u2019s exactly right and entirely unremarkable decision to bring criminal charges against would-be underwear bomber Umar Farouk Abdulmutallab is, as others <\/a>have pointed out, well and fully divorced from the facts. (According to the Attorney General\u2019s detailed statement<\/a>, Abdulmutallab provided detailed and useful intelligence. He will now spend the rest of his life quietly in jail following a trial so fair that it will succeed in increasing the likelihood that our allies will cooperate with us in identifying the next Umar Farouk Abdulmutallab.) The position <\/a>staked out by Lindsay Graham et al. favoring military commissions over federal criminal trials for the Gitmo detainees we plan to charge with wrongdoing as the \u201cbest way to render justice, win this war and protect our nation from a vicious enemy,\u201d is not especially more coherent. Among other things, after 8 years, the commissions have convicted 3 defendants, 2 of whom are already back on the streets. In the same time, according to NYU<\/a>, the criminal justice system has pursued 800 terrorism prosecutions with a conviction rate of 90%. The new and improved commission process is certain to generate just as much litigation as the last one \u2013 and commission defendants will enjoy a host of potentially powerful defenses to their prosecution they won\u2019t have in criminal trials. And odds are not insubstantial that if we decide to \u201crender justice\u201d that way, we\u2019ll still be rendering it another 3 years from now (the next time folks take a good look at the Commander in Chief). <\/p>\n

On the other side, proponents of criminal trials have done a nice job of highlighting the many factual \u2013 and common sensical \u2013 deficiencies in the Republican case. See, e.g., here<\/a>. They\u2019re getting great at rapid response. But they\u2019ve not mounted much (or any) of a sustained counteroffensive in the political messaging game. In part, one might argue, that\u2019s not the job of advocacy organizations whose endlessly important missions are to promote human rights, protect the rule of law, and defend the persecuted. They serve a critical function, but resources are scarce, and countering fact-free politicking just doesn\u2019t make the cut. (Although as they all know, it\u2019s tough to gain any factual foothold with even the fact-interested members of Congress as long as the political winds are whipping around as fast as they are.) And then there\u2019s the problem of appetite; hard for them to launch a campaign to defend any aspect of what the Administration is attempting to do (viz. some criminal trials) when there are so many things they think the Administration is otherwise doing wrong (viz. some continued detention). In any case, one could imagine the pro-law-enforcement case might be more effectively, more persuasively waged by, say, the enforcement community, the Law & Order folks who should (and it seems are) chomping at the bit to show America and the rest of the world how justice is done. But they have appropriate professional constraints of their own to worry about. Not to mention other jobs to do. <\/p>\n

Which brings us to the Democratic administration in office \u2013 the group that holds the popular majority, both houses of Congress, the White House, and the dazzling messaging apparatus that goes with it. But it\u2019s hard to have a coherent much less dominating message when talking out of all sides of the mouth. It is not news that the Obama Administration seems to have been struggling for some time with internal divisions on these issues. And to be fair, the number of internal constituencies the President has to deal with is daunting: The Pentagon (which has plenty of smart and rights-interested people in it, along with a deeply vested institutional interest in seeing the next round of military commissions they\u2019ve worked on for 8 years go forward with more earned respect than the last round); the intelligence community (which faces an unimaginably difficult task, which is ever burdened with building a new (intel collection) car while they\u2019re trying to drive it, and whose collective ego has been toughened by decades of being regularly beaten around the head); and the Justice Department\/FBI (which undoubtedly has turf interests of its own, but is generally trying, best as I can tell, to prosecute terrorists and get them off the streets). <\/p>\n

Then there\u2019s the White House itself, which has seemed to resent having to deal with the current Bush-induced mess so much, they don\u2019t want to talk about it until absolutely forced \u2013 forced by an uprising in Congress against bringing any Gitmo detainee to the United States ever, by an about-face by the New York City community it ostensibly consulted, by a sustained political assault by the other side far more coherent and unified than any vision the Administration has put forward. The resentment is both entirely appropriate, and completely beside the point. As it turns out, the I-don\u2019t-want-to-talk-about-it approach has been effective only in ensuring that the Administration has been compelled to spend the year so far talking about it constantly. Trying to shunt these issues off to the side, or address them in a single speech, has not worked. And it won\u2019t work going forward. These issues \u2013 terrorism, the threat of terrorism, domestic cases, foreign detentions, actual trials, etc. \u2013 are going to be in the news every day from now til the next election, and the opposition has every incentive to ensure that they stay there. An offensive strategy seems in order.<\/p>\n

The Administration needs \u2013 has long needed \u2013 two things: (1) A settled policy on these issues, and (2) An affirmative, consistent, aggressive message on counterterrorism security that is understood and embraced by the whole Administration team (DOJ, DOD, CIA, WHO). On the first, and despite the unbelievable complexity of all this, the Administration has been lining up the decisions and knocking them down. I was very much in favor of the new Administration thinking things through carefully with the task force process, and I am far less critical than many about its plan to resolve Gitmo by some combination of trials, releases, and (in a small number of cases, we\u2019re not yet able to evaluate which) continued detention. I haven\u2019t, and I\u2019m sure I won\u2019t agree with every move, but criminal trials are obviously the right course whenever it\u2019s possible. Have them in some distant hamlet in a different zip code if Manhattan has had enough, but as the President and Eric Holder have said all along, they\u2019re the best bet whenever possible (as it surely is with KSM). Rethinking that now (as, it is reported<\/a>, is the President, seemingly in response to the pure politics of Lindsay Graham) backtracks on progress made in the painstaking process of policy development.
\nIt also only serves to underscore the Administration\u2019s failure to move forward (or, it seems, in any direction) on the second item \u2013 an affirmative message on security, repeated and elaborated daily, geared toward the constituencies that need persuading to make the policy possible (say, the districts of members of the President\u2019s own party), and deployed on a strategically useful playing field (as opposed to one mandated by, say, Dick Cheney\u2019s appearance on TV). <\/p>\n

Candidate Obama was characteristically eloquent <\/a>on the topic of security. He was also relentless: \u201cYou don’t defeat — you don’t defeat a terrorist network that operates in 80 countries by occupying Iraq…. If John McCain wants to follow George Bush with more tough talk and bad strategy, that is his choice, but that is not the change that America needs. We are the party of Roosevelt. We are the party of Kennedy. So don’t tell me that Democrats won’t defend this country. Don’t tell me that Democrats won’t keep us safe. The Bush-McCain foreign policy has squandered the legacy that generations of Americans, Democrats and Republicans, have built, and we are here to restore that legacy.\u201d <\/p>\n

As messages on Gitmo go, that seems like a fine place to start. <\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

by Deborah Pearlstein Cross-posted at Balkinization This is a post about politics, not law. How could it be otherwise in engaging the public debate these days over the chronic cluster of post-9\/11 terrorist detention, interrogation and trial issues? Demagoguery by Mitch McConnell and his Republican cohort over the Administration\u2019s exactly right and entirely unremarkable decision […]<\/p>\n","protected":false},"author":4905,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-324547","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/324547","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4905"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=324547"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/324547\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=324547"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=324547"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=324547"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}