I particularly like the point about how the "war not crime" frame actually buys into the the narrative of Al'Qaeda. I think there' also something to be said about what war does for national identity. The notion of supporting our troops as the make the world safe for democracy gives you a kind of missionary edge that simply protecting the citizenry from murderous thugs (international murderous thugs, to be sure) doesn't. The latter is a duty that any second-tier nation must try to before, the former is the business of paladins. The "war not crime" narrative is a natural extension of the "America can do anything" narrative.In political terms, the right likes the war idea because it involves taking terrorism more "seriously." But in doing so, you partake of way too much of the terrorists' narrative about themselves. It's their conceit, after all, that blowing up a bomb in a train station and killing a few hundred random commuters is an act of war. And war is a socially sanctioned form of activity, generally held to be a legally and morally acceptable framework in which to kill people. What we want to say, however, is that this sporadic commuter-killing isn't a kind of war, it's an act of murder. To be sure, not an ordinary murder--a mass murder--but nonetheless murder. It's true that if al-Qaeda were something like the "blowing up train stations" arm of a major country with which we were otherwise at war, it might make the most sense to think of al-Qaeda as fitting in with spies and saboteurs; criminal adjuncts to a warrior enterprise.
After all, do we really want to send the message to the world that a self-starting spree killer like Nidal Malik Hasan is actually engaged in some kind of act of holy war? It seems to me that we don't. A lot of people in the world are interested in glory, and willing to take serious risks with their lives for its sake. Insofar as possible, we want to drain anti-American violence of the aura of glory. And that means by-and-large treating its perpetrators like criminals.
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Some time ago you said that it is no accident that O'Reilly and Sharpton broke bread together at Sophie's, as each feds the other.
Fearmongering Islam-hawks and AQ? Same thing. 'Cept no Sophie's.
Dead on.
And no iced tea, MFer.
Sylvia's not Sophie's.
Another draw to the "war not crime frame" is the impossible expectations it creates. We can't get terrorism to sign a surrender on the deck of one of our battleships. Alike with other patterns of behavior against which we've declared war, terrorism will always be with us at some level. Our choice is whether to handle it effectively or self-defeatingly.
Like the war on drugs, it's more of a war on human nature than a defined enemy. It's an excuse for war without end.
I don't know to what degree anything will always be with us. I certainly imagine that a time will come (whether I am alive or dead) when terrorism will no longer be an issue. But I do see your point about the absurdity of declaring war on a tactic or, worse, an emotional response to a tactic.
Generally, I tend to view this as largely a semantic issue as it can hardly be questioned that our military has spent the past eight years fighting a war, actually two wars. But I think Matt's piece is a good reminder that the war talk from the US was in response to war talk first put out there by al-Qaeda. That by adopting their language, we're granting a certain legitimacy, or even a glorification, to their struggle.
100 years ago the anarchists were big into acts of terror (usually bombs, non-suicide) and assassination. Usually with that kind of "I strike a blow against the huge amorphous man who is keeping us down, and thus the people will be inspired to rise up" gloss that we see in AQ terrorists today. The anarchists eventually helped trigger WW1, and they managed to kill a US president and a host of other leading politicians on the way.
Like Al Qaeda, "the anarchists" are not exactly a state or group you can negotiate with. Anyone can pop up and claim to be them. We've been here before. Over time their cause burned out and their tactics fell from favor. Terror is a tactic. We can't defeat it, just make it into a tactic that does not accomplish its users' goals.
I'd draw out the semantics a bit--our military has been involved in two wars as part of our response to Islamist terror. (Yes, one of those wars being incidental to any grander strategy beyond neocon wet dreams.) But we tend to conflate them, as though when we "win win" the war in each country then we will have defeated AQ. Language which treated the war as an extreme step in dealing with a criminal issue (very clear cut in Afghanistan, since their government welcomed the criminal organization that attacked us and let it operate freely) rather than as equivalent to dealing with the criminal issue would be better.
I will back you up on the "terror" is a tactic.
I think a major problem is that the US has equated "terrorism" and "terrorist" with some sort of ideology, like "communist" or "fascist", basically "something that is bad that we will fight - ist".
But really it doesn't work out like that. When you face full on that terrorism is a criminal act, rather than an ideology, it puts "terrorist" in a whole new category. Making War on Terror is like making War on Rape, or War on Murder. It might even sound catchy, but its attacking a behavioral tactic rather than opposing an ideology. Terrorism is something that people are guilty of, either by committing it or by aiding and abetting the perpetratora. But its not really something people become card-carrying members of.
Terrorist acts are just to be seen as means to an end in a political movement, rather than the political movement itself. Anarchism is a good example, as mentioned above. Marxism is as well - before the late 1990s the vast majority of terrorist acts were committed by Marxist organizations. Some (such as FARC) still are. But Cyprus (for example) can elect a Communist president ... so obviously it is possible to separate a group's political goals from the more criminal or violent means.
What are we defining terrorism as, by the way? I would say a quick definition would be to commit violence on non-military targets for political ends. Granted this makes one wonder where Ft. Hood or the USS Cole fit in, but there you have it. Terrorism often equals outrage to many folks.
I can't tell if there's a tone of rebuke in here or not. Are you concurring with what I said, or rejecting it, or sort of building onto it? I don't see a lot in here that I would disagree with.
Building.
I'm building on what you said.
(New theory: one word comments trigger the spam filter.)
I think it's a character limit. One line, or even a line and a half tend to be problematic for me. But yeah, one word is a lost cause.
There's a book that came out a few years ago, around the time of the invasion of Iraq, called War Is a Force That Gives Us Meaning which examines the issue of how we frame war as a form of nationalism in detail. It's clear from the reading that there's a historical inertia which favors seeing foreigners as a potential existential threat, and it's so ingrained that people do it reflexively. We're a society that has bought into the notion of there being a War On Terror, so we're collectively implicated in condoning the treatment of private citizens as "enemy combatants". See: Gitmo.
I understand wanting to treat terrorism as a criminal matter, and it makes sense to do so when the acts are planned and committed within the United States. This was demonstrated with the successful prosecutions following the 1993 World Trade Center attacks. However, I don't think we can apply a law enforcement framework to terrorist attacks and networks that span continents, with terrorists working in dozens of countries. Terrorists captured by the military or intelligence services like KSM was should not be given civil trails. KSM never even entered the US, he was captured in Pakistan by the They were not captured in the US, nor were the given proper legal procedures such as miranda etc. I don't know how they would get around the special circumstances involving his capture. I mean, will he be allowed to call witnesses? Can they be compelled to appear from Pakistan, or Afghanistan? I don't see how a law enforcement framework could be effective in trying terrorists that attack the US in the way KSM did.
Sorry about that, should read "he was captured in Pakistan by the ISI (Pakistani Intelligence Service)"
However, I don't think we can apply a law enforcement framework to terrorist attacks and networks that span continents, with terrorists working in dozens of countries.
The mafia. Not even new. Now we deal with links between the Russian mafia in Miami and Russia, and the Japanese mafia in CA and Japan.
It's a reasonable point about whether we can use US law on people who haven't set foot here; I'd need some lawyers to weigh in.
I agree that Al-queda and other terrorist groups can be prosecuted like the mafia in many occasions perhaps, and that addresses most of my concerns. I guess the only thing that would be different is the use of classified information against terrorists, as far as I know that isn't a factor with organized crime. I don't think a civilian court is the best venue for dealing with classified information etc. And then, arrested mafia members are afforded all the rights of a US citizen. That is, they are mirandized, etc etc. Would we make members of the military mirandize terrorists captured on the battlefield?
Well no offense but I think we should first be careful about throwing around "Miranda" in this discussion, lest we risk sounding like McCain on a stump speech.
The "Miranda warning" guarantees a suspect the right to a lawyer and alerts them to their right under the Fifth Amendment to avoid self-incrimination. These are rights offered to anyone within the United States, NOT just to citizens.
Second a second point, the canard is being raised again about "reading rights to terrorists on the battlefield." If they are combatants, then there are certain norms and laws that exist for treating prisoners captured in war. If these captured combatants are accused of crimes that they should be later tried for, that is a separate and long-established process (see war criminals, Nuremberg trials, etc.)If they are not on a battlefield (such as KSM), then yes, I don't see why a simple capture and extradition is such a big deal - the US has done this to Manuel Noriega and countless Colombian warlords for decades.
Third, NONE of these issues relate to the use of classified intelligence, as I see it. I am not an expert on this final point but I fail to see it as being an insurmountable obstacle to keep certain elements of information relatively quiet, even when conducting criminal prosecutions. Otherwise, wouldn't organized crime summarily murder every snitch and informant as soon as one case was brought to trial?
So, I guess while I can see the use of classified material as being a problem, it cannot be one that causes the entire legal system of the US to collapse. And we need to separate that issue from "reading Miranda rights on the battlefield" and all of that smokescreen.
I just wonder, if we are trying them in Federal court, what if mour case is based solely on classified information? What can we list on the indictment? What can be revealed in discovery?
Matt writes:
But why be needlessly reductive in the first place? It's possible to acknowledge all of the flaws of the martial analogy without adopting an equally flawed analogy to ordinary criminal violence. We're not the first country to have struggled with terrorism, and virtually without exception, other nations have found dealing with terrorists through the standard mechanisms of criminal justice to be a less than straightforward proposition. Terrorists fall into the same problematic category as, say, certain kinds of repeat sexual offenders - our system tries people for the crimes they have already committed, but as a society, we're not always willing to turn people loose after they've served their time. There are also unique problems involving establishing deterrence, one basis of our criminal justice system. This can leave us in a position in which the actual crime committed may be no more than conspiracy with intent, but we lock people up for the rest of their lives without hope either of reforming them or deterring others. The severity of their punishment is out of proportion to the actual crime; it's not intended to punish so much as to forestall potential future acts. In other words, we may be using the mechanisms of criminal justice, but it's wrong to pretend that these cases are just like any others, because we don't generally believe in preventative detention. And indeed, we have specialized bodies of legislation and judicial procedures designed to address these challenges (even if the answers they provide are less than ideal.)
The real problem with Matt's argument, though, is that he's blurring his categories. That same confusion of categories was the underlying problem with Gitmo, as well. There's a fundamental difference between violent acts committed at home and abroad. When the same militant turns the same assault rifle on the same group of Americans, it makes a difference (in the eyes of society, although not always in the eyes of the law) whether they're standing on a base in Kandahar or walking the streets of Manhattan. I'd even go so far as to agree that those involved in the plotting or execution of acts of domestic terrorism should be extradited to this country to stand trial in a civilian courtroom for their roles. But most of the people we still have in Guantanamo were swept up on far-away battlefields. For them, the analogy to war is not wholly inappropriate. An Egyptian militant who travels to Iraq to construct and plant IEDs targeting American troops more closely resembles a soldier than a murderer.
Neither analogy is perfect. But it's probably most accurate to say that domestic acts of terror are best dealt with via the criminal justice system, however awkward the fit; and that armed violence against our forces abroad is best dealt with through the judicial systems of other nations or the laws of war. Guantanamo created the present dilemma by trying to create a third, amorphous category in an ill-defined space. It now presents a terrible dilemma, in that not all of the detainees can be convicted in domestic courts, but even after we've transferred the wrongfully detained and the marginally penitent back to other nations, we're going to have several dozen men relentlessly bent on committing violent acts. These days, when we capture such men in Afghanistan, we keep them there. If anyone has a good solution for what we should do with the ones we're holding at Gitmo, I have yet to hear it. And for all the bluster of his post, I don't hear Matt calling for us to try these detainees in domestic courts and release them into the United States if acquitted.
These issues are really hard, and really complicated. All of the answers are morally compromised. It offends me when a smart guy like Matt suggests that all objections are made in bad faith or misapprehension.
I really liked this comment, and it gets at a lot of what my problem is here. First of all, I absolutely think that Hasan should be tried in civilian court, but I'm sure legally, the issue is complicated by this occurring on a military base. I don't have the expertise to know whether that fact alone changes things, but ideally, I think trying him in civilian court is more effective.
The problem is with people like KSM and others who have been detained at Gitmo. Most, if not all of these people, were tortured nearly indiscriminately. Legally, this is a problem. I'm very wary of the argument that we (liberals/libertarians) can have our due process cake and eat it too.
What I'm afraid it comes down to is an unhealthy blend of law and politics. I'm going to go out on a limb and say not a single one of us doubts that KSM's going to be found guilty and will be executed. I also don't doubt that most of us here think waterboarding is torture, that enhanced interrogation is torture, torture, is against the law, and that we tortured KSM to get information. In a normal civilian court, wouldn't the judge toss out the case immediately upon seeing that? I'll remind you, we've done it for less: http://en.wikipedia.org/wiki/Miranda_v._Arizona
Personally, I'm a big fan of due process and following the law. I know that in this case, due process would not be served to KSM. And so it strikes me that, trying him in a civilian court may not be the right thing to do, as it could set up a precedent in which we can do whatever we want to terror suspects with the guarantee that they'll be convicted.
Of course, we shouldn't have tortured him in the first place. It's outrageous that we did. I think non-tortured domestic terror suspects should be tried in civilian court. It's a no-brainer. I do think we need to consider the big picture here though: we're about to convict a tortured man as if he's been given due process. Is that really a road we want to go down?
Just regarding Hasan, the issue is also complicated by him being a military officer.
On the specific issue of Hasan, it's worth remembering that the UCMJ almost certainly endows him with greater protections than civilian courts. At the simplest level, he'd otherwise be facing a capital trial in the State of Texas - and as TNC has abundantly documented, there's very little in the way of procedural protections or due process to be found in such trials (and the military hasn't actually executed anyone in half a century). But more broadly, we're not talking about a military tribunal with Hasan, but a General Court Martial. Military tribunals are ad hoc entities with little in the way of precedent, set up to answer extraordinary circumstances. Trying Hasan in a GCM, by contrast, treats his case precisely as that of any other active-duty member of the military who commits a serious crime, as happens many times every year. It is handling his case in normal fashion; the extraordinary measure would be trying to process his case in the civilian system.
The military already dealt with a case like this anyway, involving Sgt. Hassan Akbar (http://en.wikipedia.org/wiki/Hasan_Akbar_case). The only difference there was that less people were killed (two) and it occurred on a military facility in Kuwait.
The charge was premeditated murder, and the sentence was guilty with the death penalty (not yet exercised).
Yeah makes sense. I'm a bit out of my depth on the jurisdiction issue here.
Well, the military may have less history of capital sentences, but can I get a show of hands here- who thinks Hasan won't get a death sentence?
Heck, even good ol' Howie Kurtz over at WaPo says there's no need to tack "alledgedly" in front of Hasan's name, since everyone knows he did it.
I sure hope his counsel has a different attitude. I want justice in this case, not just revenge.
He's a military officer. His victims were military personnel. His crime took place on a military base. I don't think it should be treated as an act of war, but I see no reason to try him in civilian court.
The reason would be an attempt to down play the importance of his crime, which is what Yglesias alludes to. But I'm willing to concede this one, as long as he gets a fair trial.
This. In the case of Hasan I think it's clearcut that he should be tried by the military. It is in no way conflating a criminal act into an act of war; rather, it's treating a crime committed by a military officer on a military base against military personnel as a military justice matter. I'm pretty sure the same would be true if he had shoplifted from the PX. Islamist sympathies are incidental; they don't change who did what where.
As far as KSM, it'd only be a problem if we depended on a torture induced confession from KSM for a conviction. Miranda wasn't found innocent, he had his confession thrown out of evidence. The verdict was thrown out because a tainted piece of evidence was used during the trial (the confession). If there was enough evidence outside of the confession, the state could have re-tried and convicted Miranda.
Gotcha. But then this raises a question for me: Was he read his Miranda rights when he was picked up? I haven't seen anything about this.
It doesn't matter if he's read his Miranda rights when picked up. The rule is that anything the person says after being arrested/detained until the Miranda rights are read can't be used in court. It's typically done when you're arrested so your statements from there on out, until you ask for a lawyer, can be used against you. Since everything he has said so far would be tainted by torture, it would likely not be admissible evidence. If the only evidence we have against KSM is a tortured confession (or evidence discovered because of torture), he'd likely go free. My guess is that there's a ton of evidence outside of any confession, so he'd be convicted (otherwise I can guarantee Obama wouldn't move to send him to civilian court).
The reason why people get let off for not being "Mirandized" is because they are interrogated and the confession is central to the case. If the state could prove the case without the confession (and any evidence they found because of the confession) then whether or not he was Mirandized doesn't matter.
"our system tries people for the crimes they have already committed, but as a society, we're not always willing to turn people loose after they've served their time. "
Two issues with this. As you mention further on, we can try and convict individuals for conspiring to commit crimes. You can go to jail for attempted murder. Or for even being involved in criminal conspiracy. So we don't have to wait for the bombs to go off to use the criminal system.
Second: terrorists are not Magneto. They are not supervillains that need to be locked up forever, and we cannot treat people as such, eve if most people are not always willing to let them loose after their punishment. Being a "terrorist" is not some permanent mental derangement. Menachim Begin was head of Irgun, an organization that committed many acts that would be considered terrorist. Yet he was able to become a peace-making head of government. Ditto Gerry Adams. (Just trying to make a point, PLEASE lets not go off tangent onto the politics of those respective conflicts). So someone involved in terrorism does not seek to drink the blood of the innocent every night...they are people guilty of criminal acts, just like anyone else. If they try to commit a crime again after punishment, great, put them on trial again. But some people can learn from their mistakes.
Tell this to the swing states and the candidate trying to win their votes. I hate to say that. But I have no reason to believe people are going to overcome their irrational fears.
I hear you. I think that the politicians that play on these fears to need to be called on it more often than they are.
I mean the fact that Giuliani just spoke out against trying KSM in New York: someone needs to publicly ask when did Giuliani ( former public prosecutor, aka the President of 9/11) all of a sudden become afraid of bringing terrorists to trial? Of course, he did at least have the honesty to say that putting KSM on trail means that the War on Terror isn't a real war...
But I do admit it's an uphill battle. Politicians do like to pander to people's basic urges. But let's not pretend that is justice, or even courage, let alone good policy.
Don't look now, but you're making my point.
Conspiracy charges aren't unique to terrorism cases, but their application in such cases tends to be broader - often, in fact, lacking the need for the overt act that's generally required in state criminal codes. But there's a big difference between statutory provision and applied law. And I don't think there's any dispute that defendants charged under anti-terrorism statutes tend to be charged with crimes and to receive sentences that far outstrip those assigned to others who contemplated or committed the same acts without sharing a terroristic purpose. The precedent for this actually comes from battles with organized crime earlier this century, which led to the introduction of RICO and similar statutes.
My point is that these statutes amount to a classic legal fiction. We charge people with conspiring. Under the statute, the maximum penalties for conspiracy are identical to actually carrying the alleged acts (excluding death). But in practice, to receive a life sentence for a conspiracy that never comes to fruition, you generally have to be involved in a conspiracy that is both heinous and on the verge of occurring. Actually hiring a supposed hit-man to kill a relative, for example. And it almost always involves not just one, but a series, of overt acts. That's not true of terrorism, in practice. The authorities go to much greater lengths to encourage terrorist suspects to commit overt acts, generally working with confidential informants or undercover agents to facilitate those acts - but when they can't, they eventually make the arrest, anyway.
What we've devised is a system that penalizes people for their potential to commit crimes in the future. That's not what the statutes say, of course. It's not their stated rationale. We say, at least, that such crimes are so uniquely horrible that they require locking up those convicted of them for terms far longer than those given to ordinary criminals. But it's hard not to notice that this approach conveniently relieves us of the dilemma of deciding when a convicted terrorist has reformed his ways, paid his dues, and can be safely released. The current legal regimen preserves all of the polite niceties of civilization, by cloaking the policy of preventative detention in the respectable forms of criminal procedure. But the fact remains that we don't treat these crimes like other crimes; we just like to think we do. And I think there's a very strong case to be made that the reasons for this have less to do with the horror of terrorism than with the awkward fit between the nature of terrorists acts and the system we use to prosecute and punish them.
I guess I'm just not seeing the difference between the criminal system being a "cloak" for preventative detention and a presumeably more just system of punishment. Al Capone wasn't world-famous for his tax-dodging, after all.
I suppose I'm just arguing that using the criminal system is the least-worst alternative. The Guantanamo option certainly hasn't helped us decide who is a terrorist and who should be released when any better. Lord knows that the criminal court system is not perfect, but why do we need to reinvent the wheel for modern-day terrorists? As has been pointed out above, we have had terrorists in our past before (as well as pirates and other rather unusual criminals). Yes, we don't treat terrorism like other crimes, but that's neither unique (drug offenders, sex offenders, "third strike and you're out" offenders), nor something that would be better addressed outside of the established system.
FTW! Good gravy, man. I laughed out loud. That sums up the "closing Gitmo = releasing terrorists into the streets" / "KSM trial too dangerous for NYC" arguments right there.
As a fundamental strategy for fighting terrorism, the war paradigm has been an abject failure, and for many of us but certainly not most of us, sadly, predictably so. Certainly this is not to say that the invasion of Iraq nor the invasion of Afghanistan was only a failure on all accounts. No doubt for some in Iraq and Afghanistan, our presence there altered things for the better, but the larger cost to indigenous populations and our own nation are hardly offset by the good done there.
The 9/11 attacks, strictly speaking, were breeches of international law by a select few. That is how the matter should have been addressed in the first place. All this war stuff was certainly to the benefit of Al Qaeda, who at very little cost by comparison, created instability in the region and drained the United States of large parts of its treasury and standing in the world. The human damage has been staggering, and to the extent that has compromised our national spirit and engaged the worst demons of our popular gestalt, we have been a bunch of suckers to thuggery, that of terrorists and our own leadership, who were either incompetent or pursuing under the blindfold of their tunnel vision their own agenda with a profit motive at its core.
Along these lines too, is anyone else a little uncomfortable with the term "mastermind" as it's seemingly always applied to KSM?
The missionary ethos in american foreign policy has a long history. For that matter, it also has a long history in journalism. Read Kaplan's book The Arabists which although a bit dated is an interesting place to start on how in some cases the divide between diplomat and missionary was sometimes only a generation apart. In journalism, the founder of Time , Henry Luce was the children of American Missionaries in China. The American "missionary spirit" for want of something else to call it is a fundamental dogma of American Life. Personally I think it springs from our belief that as Americans we believe that we should be an example to the rest of the world.
With much respect, I don't think this is entirely accurate. In part the "war on terrorism" is an extension of the America as Missionary/Example that has been a part of our thinking since John Winthrop gave his sermon A Model of Christian Charity. One could argue that the idea has deep roots in a sort of Calvinist predestination where God saves whom he will save, damns whom he will damn, and it is the duty of the "elect" to serve as an example to those who are going to hell.If there is a fundamentally American attribute that is shared by most of us who live here it lies in our urge to proseletize. Whatever we happen to believe, as Americans, we just won't rest until we've convinced everyone else to hop on the wagon with us --even if the wagon is going over a cliff. I mean no offense when I say this but I think you have the order of ideas backwards. In my mind this is how it works, and in all probability I may be talking through my hat which I forgot to bring with me today but here it is:
America's urge to be an example leads us to believe that we are exceptional which leads us to want to convert other people to our way of thinking which is in turn interpeted --when it is exported abroad-- as the belief by others that "Americans think they can do anything."
The thing is, I think the "America Can Do Anything" narrative is almost as old as this country. The notion of providence, that America is somehow "special," that the conquest of the continent was "pre-destined." I don't think George Bush, or even Reagan, invented that. It's part of who we are. And for the record, it's not always bad.
Well, yes.
In a sense it's another form, or manifestation, of exceptionalism. It goes hand in glove with the urge to proselitize or convert the rest of the world. On one side it has led to organizations like the peace corps. On the other side it's also led to events like the Phillipine Insurrection. In many ways it goes back to the theological views of the Calvinists who came here. In so many ways the whole batch of ideas that we carry around with us are the basis for so much of our political discourse.
In a way, what you call the "america can do anything" narrative is a logical outgrowth of the other tennants of american exceptionalism, optimism, and missonary spirit. I wasn't really disagreeing with what you said just the order in which the ideas were presented.
In a way and I haven't seen it argued this way but I would love to see it a person could argue that Barack Obama and George W. Bush offer two opposite yet not-entirely-contradictory views of American Exceptionalism. That when it's done right exceptionalism can lead to a "let's change the world" belief but when it's done wrong a belief in exceptionalism can lead to the "with us or against us" mentality. I don't exactly see any contradiction between the two. As you say this idea is part of who we are.
Some of the comments in this thread have helped me distill the reasons why Matt's post raised my hackles into somewhat more succinct form.
Let's put it this way. If Matt means what he says, we should be perfectly willing to charge terrorists under ordinary criminal statutes. If they commit a bunch of murders, we charge them with murder. If they conspire to commit murders, we charge them with conspiracy to commit murder. No special laws; no unique procedures. Ordinary criminals, ordinary trials.
But for the most part, that's not what we do. We have special laws for terrorist acts, with lower evidentiary bars and harsher sentences. We allow the authorities to exercise special powers of surveillance for these crimes. And we go to unusual lengths to locate potential terrorists and to facilitate their planning and execution of their conspiracies so that we can charge them and imprison them. None of this amounts to 'treating its perpetrators like criminals.' What we're actually doing is processing its perpetrators through our regular criminal justice system, using specially crafted laws and powers. If they were ordinary criminals, we would not require special laws or procedures to prosecute them - murder is murder. Instead, we try them as terrorists. And to be clear, as far as domestic terrorists are concerned, I wholeheartedly support this approach. But I'm acutely aware of its deficiencies and its minor hypocrisies. For domestic acts, it's the best of the bad options.
Matt is largely beating a dead horse. The current administration isn't proposing to treat those resident in America, much less American citizens, as 'enemy combatants.' No one suggested doing that to Nidal Malik Hasan. So the inappropriateness of extending the War to include domestic acts is settled law at this point. What's left is a rhetorical question, not a legal one. Do we speak of Hasan and his ilk as criminals, with no particular concern for their motives, no different from other murderers? That's Matt's position: "This is perhaps a moment to reflect on the fact that the murder of innocent people is not really made better or worse by deep inquiry into the precise nature of the crime." That's both right, and utterly besides the point. The victims are still dead, irrespective of motive. But we've always cared about intent, distinguishing between purposeful and accidental acts and struggling with those that fall between. And motive is crucial in preventing recurrence. The analogy is frequently made to hate crimes, but might be more instructively made to gang violence. A victim of a random shooting is just as dead as the victim of a gang-linked murder, but they call for very different responses. We know that targeting gang leaders, mapping their networks, and making the social unit responsible for the violence can dramatically reduce gang violence. But if we regard each murder as an isolated criminal act devoid of any broader meaning, we're unlikely to take such steps.
In fact, Matt's analogy and his conclusions point in opposite directions. If we're really going to regard domestic terrorism through the rubric of criminal justice, then we have to pay more attention to motive and intent, to affiliations and ideologies, to culture and belief, not less. That's what good police do when they respond to a killing - they try to figure out why it happened, if it's part of a broader pattern, and how they can prevent future violence. There are some classes of crimes that are best addressed through an integrated approach. We've crafted special statutes and set up special policing units to deal with such crimes - organized crime and gang-related violence being prime examples. We don't simply lump them in with all other acts, separating the deed from the motive. That would be counterproductive.
We have special laws for terrorist acts, with lower evidentiary bars and harsher sentences. We allow the authorities to exercise special powers of surveillance for these crimes.
Those laws wouldn't matter, in a civilian court the evidentiary bars and surveillance must be done to current standards. These standards are set by the Constitution and Supreme Court case law. You can't just write a law to lower the evidentiary bars in court as that would be unconstitutional. The only reason this has worked so far is because none have been tried in a civilian court. The only thing we could do is set-up a secret court to approve warrants and possibly handle classified information, which is already done, and harsher sentences.
I am extremely wary of convicting anybody solely on the basis of classified information that nobody is allowed to see or refute. There is just far too much potential for abuse.
"But for the most part, that's not what we do. We have special laws for terrorist acts,..."
IANAL, but it seems to me that this practice in America (treating "terrorism" as a unique and special branch of crime/war/badness with its own unique and special procedures) is "what we do" now; but is only "what we've done" since the 9/11/01 attacks.
Which special re-classification was only too popular with the public (who were mainly freaked out with fear) and the Government - which was, in the main, pretty pleased to have a new blanket excuse for instituting all sorts of security-state shit; and who also had a vested interest in exploiting the fears of the populace/electorate for political gain.
As has been pointed out, Rudy Giuliani's latest blitherings are the perfect[-asshole] example: the criminal justice system was just fine to track, capture, try and convict the 1993 WTC bombers (which, like 9/11, happened on Rudy!'s watch) - but now that there is some pathetic political hay to be made thumping the drums for War! War! War!, he's all against it.
"So the inappropriateness of extending the War to include domestic acts is settled law at this point."
Is this really the case, Cynic? Suppose someone like Mitt Rommney or Rudy Giuliani becomes president. Will the law constrain them from resorting to tactics like designating domestic terrorist suspects as "enemy combatants" in order to avoid having to follow rules of due process?
The Supreme Court constrained them in its Hamdan, Rasul and Boumediene decisions and related jurisprudence. The Bush Administration was pursuing an unsettled grey area in the law. It's not grey anymore.
Actually, it wasn't really grey until the Bush Administration decided to make it so. What the Hamdan, Rasul, and Boumediene decisions did was to publicly declare that the reasoning used by the Bush-Cheney administration to justify its treatment of domestic cases as military matters was simply BS; a plain and good faith reading of the law (including the Geneva Convention and the whole body of the laws of war) did not support the Bush-Cheney administration's legal arguments. Therefore, these decisions simply affirmed that the Bush/Cheney adminstration had violated what was already a matter of settled law; the matter became unsettled because the Bush/Cheney administration tried to overturn these matters of settled law by executive fiat.
So unless Congress is willing to impeach President Mitt Rommney or Rudy Giuliani when they try to repeat this process of undermining settled laws through executive fiat, the issue really won't be settled even in the wake of the Hamdan, Rasul, and Boumendiene, so long as the political climate of this country is responsive to the fear-mongering of the Cheney/Rommney/Giuliani crowd. That is why it is critical for the Obama administration to establish civilian law enforcement methods as the primary means for dealing with domestic terrorist acts, both as a matter of legal precedent and as a matter of political precedent.
There's a whale of a difference between what may seem to you to be a "plain and good faith reading of the law" and the established precedents of the Supreme Court. The Bush Administration's actions were immediately challenged in court, but it took years for the cases to wind and wend their way to SCOTUS. Until the Supremes spoke, most lower courts were prepared to issue an order or grant an injunction - and if they were, a higher court would instantly have stayed it pending the final ruling. Lower courts can take a crack at such questions, based on their reading of the law, but they're supposed to be applying law, not making it.
Now that those precedents are on the books, should another administration try to arrest an American citizen and hold him as an enemy combatant deprived of his habeas rights, for example, any federal judge in the country would grant a preliminary injunction as soon as one could be filed. There is no remaining ambiguity; this avenue is closed.
Which is not to say that there couldn't be other abuses of executive authority in the future. Their can, and will. But the disposition of the remaining inmates at Gitmo has nothing to do with the rights of American citizens or procedures related to domestic terrorism, and everything to do with a Gordian Knot of where else we can put them, for how long, and on what authority.
Not disagreeing with any of the points made below, but it is worth noting that treating them as actual enemy combatants would mean bringing in a different set of protections. Hence the attempt by the past administration to make up the unlawful combatant class of prisoners to avoid granting any protections.
I do tend to think P.O.W. rules are an under explored way of dealing with even suspected Al Qaeda types we capture on the battlefield. If we can't prove anything against them then detention shouldn't be punishment so much as removing them from the field. Of course, the big problem is that there's no clear end of hostilities. Also, I don't think Al Qaeda has shown any interest in prisoner exchanges, although there are other terrorist groups that do make such swaps.
"If Matt means what he says, we should be perfectly willing to charge terrorists under ordinary criminal statutes. If they commit a bunch of murders, we charge them with murder. If they conspire to commit murders, we charge them with conspiracy to commit murder. No special laws; no unique procedures. Ordinary criminals, ordinary trials."
Cynic,
What does Matt claim that terrorists are ordinary criminals? He simply states that terrorist acts fit the definition of a crime punishable by civilian law enforcement much better than they fit the definition of an act of war. Nothing in Matt's position precludes the idea that law enforcement needs to treat terrorism in different ways from street muggings or home burglaries.
What's wrong with terming terrorists 'ordinary criminals?'
Ok. Sorry, some interesting points in Cynics longer post, especially the implication that 'criminalizing' terrorism tends to distort the criminal justice system...
Conversely, militarizing terrorism tends to distort the mission and function of the military.
"So the inappropriateness of extending the War to include domestic acts is settled law at this point."
Cynic,
In addition, one of the reasons why KSM is being tried in a civilian court is to ensure that the inappropriateness of extending the War on Terror to include domestic acts actually becomes a matter of settled law. That is the true reason why Dick Cheney, Rudy Giuliani, Mitt Rommney, etc are so opposed to the very idea of having KSM tried in a civilian court.
That's entirely inaccurate. Domestic courts for domestic acts is now settled. There are any number of ways that KSM can be held - by obtaining a conviction for his complicity in domestic acts of terror, trying him before a military tribunal for his acts of warfare, or indefinite detention as an enemy combatant in a time of war. Of the three options, the Obama administration has - rightly, I believe - selected the first. It sends an important message about our priorities and our values, but doesn't establish a constraining precedent related to other detainees. Cheney and his ilk oppose it because they prefer the martial analogy - focusing on the criminal aspects of KSM's offenses undermines that.
And in many ways, KSM is the easiest of the cases left at Gitmo. The really difficult ones are those for whom we have strong evidence linking them to violent acts against American personnel abroad - but perhaps not enough to convict in a civilian court. Or whose acts don't fall under our statutes. If anyone has a good solution for these cases, I have yet to hear it.
While we know that KSM was tortured, we do not know that the torture was used to elicit confessions of his crimes. He may have been tortured in order to provide intelligence about other plots being planned by Al Qaeda, or he may been tortured in order to provide "evidence" of Al Qaeda's links to Saddam Hussein. This might explain be why he was subjected to waterboarding, since KSM might not have been giving the sorts of answers that Dick Cheney wanted to hear
While we know that KSM was tortured, we do not know that the torture was used to elicit confessions of his crimes.
I'm sorry, but the minute we decided to torture him his confession is now inadmissible. You will never know if the statements were made under duress or not. Just one of the myriad of reasons we should never torture somebody.