Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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’s exactly right and entirely unremarkable decision to bring criminal charges against would-be underwear bomber Umar Farouk Abdulmutallab is, as others have pointed out, well and fully divorced from the facts. (According to the Attorney General’s detailed statement, 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 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 “best way to render justice, win this war and protect our nation from a vicious enemy,” 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, 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 – and commission defendants will enjoy a host of potentially powerful defenses to their prosecution they won’t have in criminal trials. And odds are not insubstantial that if we decide to “render justice” that way, we’ll still be rendering it another 3 years from now (the next time folks take a good look at the Commander in Chief).
On the other side, proponents of criminal trials have done a nice job of highlighting the many factual – and common sensical – deficiencies in the Republican case. See, e.g., here. They’re getting great at rapid response. But they’ve not mounted much (or any) of a sustained counteroffensive in the political messaging game. In part, one might argue, that’s 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’t make the cut. (Although as they all know, it’s 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’s 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.
Which brings us to the Democratic administration in office – 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’s 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’ve 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’re 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).
Then there’s the White House itself, which has seemed to resent having to deal with the current Bush-induced mess so much, they don’t want to talk about it until absolutely forced – 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’t-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’t work going forward. These issues – terrorism, the threat of terrorism, domestic cases, foreign detentions, actual trials, etc. – 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.
The Administration needs – has long needed – 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’re not yet able to evaluate which) continued detention. I haven’t, and I’m sure I won’t agree with every move, but criminal trials are obviously the right course whenever it’s 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’re the best bet whenever possible (as it surely is with KSM). Rethinking that now (as, it is reported, is the President, seemingly in response to the pure politics of Lindsay Graham) backtracks on progress made in the painstaking process of policy development.
It also only serves to underscore the Administration’s failure to move forward (or, it seems, in any direction) on the second item – 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’s own party), and deployed on a strategically useful playing field (as opposed to one mandated by, say, Dick Cheney’s appearance on TV). Candidate Obama was characteristically eloquent on the topic of security. He was also relentless: “You 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.”
As messages on Gitmo go, that seems like a fine place to start.