Josh Marshall and Marc Thiessen have been going back and forth about the inconsistency of right-wing calls for Abdulmutallab to be tried within the extra-legal military tribunal system set up by the former Pres. Bush, given the fact that the Bush administration gave Richard Reid and Zacharias Moussaoui civilian trials in federal court. You can trace the history of this debate here.
But that is not what I want to comment on now. Rather, I want to flag this piece by Andy McCarthy. Although McCarthy is, of course, supportive of Thiessen’s assertion that Abdulmutallab’s case should be treated as a military, not a criminal, matter, he argues that Reid and Moussaoui also should have been. He says the fact they were not is because the Bush administration did the wrong thing in those cases.
Josh points to McCarthy’s post to buttress his argument that Thiessen is being inconsistent:
More powerful though is the argument of Thiessen’s NRO colleague Andy McCarthy, a former Assistant US Attorney with extensive experience in counter-terrorism prosecutions, who posted just after him. With a soft touch — sort of tiptoeing around it — McCarthy concedes that Thiessen’s argument really doesn’t hold up. McCarthy thinks that trying Reid — and, for that matter, Zacarias Moussaoui — in the criminal courts was just a mistake. A screw up. A bad decision.
In other words, McCarthy is saying Abdulmutallab should be tried before a military tribunal. And Reid and Moussaoui should have been too. Let’s not pretend the cases are different or that we weren’t able to send them to the brig then too.
I suppose it’s a good thing that McCarthy is being consistent about his odious beliefs — after all, I do hate hypocrisy. But there is still the larger hypocrisy of pretending to support the rule of law (especially for McCarthy as a former federal prosecutor) and supporting the abdication of law for a category of people the government labels “enemy combatants.”
But it isn’t even this larger hypocrisy that I’m trying to highlight here. I struggle for the words to say what I feel — what I mean.
It’s the second half of McCarthy’s piece that I’m talking about. He’s done talking about the specific issue of giving Abdulmutallab a civilian trial or a military trial, and now he’s talking about why it’s a no-brainer that we should always use this alternate legal system we’ve developed over the past eight years for situations in which we want to circumvent the legal roadblocks and obstructions of the primary legal system. We’ve perfected it now; we’ve figured out how to use it to our advantage — so why overlook it when it works so well?
Now, however, we have eight years of experience, including the cautionary Moussaoui tale. There are no longer any excuses; the right answer is obvious: If preventing terrorist attacks is our priority, we have to be in a law-of-war rather than a criminal-justice model.
This should not be hard to swallow: President Obama occasionally acknowledges that we are nation at war, and Congress has overwhelming authorized the use of force against al Qaeda and its confederates. If we capture an al Qaeda operative, the default position must be that he is an enemy combatant. We can then detain and interrogate him without the interference of a defense lawyer. Defense lawyers shut down effective interrogation — any competent defense lawyer will tell you that[.] …
Enemy combatants should be tried by military commission, but even if the President insists that he wants the civilian courts to be his default system for prosecution, that does not mean they have to be his default system for detention. As the cases of Padilla and al-Marri demonstrate, holding a combatant as an enemy combatant, even for a period of years, is not a bar to eventual prosecution in the civilian system.
Detention in the civilian system not only shuts down intelligence collection; it empowers the terrorist and helps his confederates. A terrorist submitted to the criminal justice system immediately after arrest must be brought to court and have counsel assigned promptly — generally, within six hours. As a defendant, the terrorist is empowered because once he has counsel and a case to fight, he realizes he has cards to play — he is incentivized to hold back the most critical, fresh, operational intelligence in order to pressure the prosecutors into dropping charges, dropping the death penalty, and agreeing to various other accommodations. His confederates are empowered because the discovery provided for his criminal case, and then the public trial, provide a window into what the government knows about the enemy.
By contrast, military detention — which the Supreme Court reaffirmed in the 2004 Hamdi case — allows us to take our time, months or years if necessary, to create the atmosphere of isolaton and dependence needed for thorough-going interrogation. Even after the detainee’s current, operational intelligence is exhausted and stale, we can continue going back to him to help us identify newly discovered players and break the code on newly discovered plots. … Plus, postponing discovery and trials denies al Qaeda valuable intelligence about our state of knowlege, methods of intelligence gathering, and sources of information.
The law of war framework maximizes our ability to prevent terrorist attacks while maintaining our ability to prosecute at the time and in the system of our choosing — rather than according to the rigors of the civilian system’s Speedy Trial Act. Adopting it would enable President Obama to prioritize his first responsibilities — protecting the nation and fighting the war — without compromising his important but subordinate interest in prosecuting war criminals.
I always feel queasy when I read anything by Andrew McCarthy — or anyone else at NRO, for that matter — but as I kept on, trying to get through these paragraphs, I felt increasingly sick. Nauseated. I tried to speed up toward the end, because I really thought I might throw up. Here is my question: Would McCarthy — even McCarthy — have endorsed what he describes in such detail below, eight years ago? It’s not even a matter for debate anymore, is it? That is what strikes me so forcefully — that, in doing these things and building this system for all these years, it is clear that we have moved past the period of time in our history when we debated the morality or advisability of doing it. We have decided to do it by doing it. It’s not a question anymore. This is what we do. This is who we are.
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