Lawyering The War on Terror
If there is one sure way to roll back any gains the US has made in the War on Terror over the past eight years, it would be to shift the focus from military and intelligence gathering, to a crime fighting stance. That is exactly the position the Obama DOJ appears to be taking:
The Justice Department, probably more than any other agency here, is bracing for a broad doctrinal shift in policies from those of the Bush administration, department lawyers and Obama administration officials say.
Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects.
Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future.
“This will be a sea change of what went on before,” said an Obama administration lawyer, noting that the principal authority over detention policies will move from the Defense Department under the Bush administration to the Justice Department.
What to do with the GITMO prisoners is a piddling concern compared to how the administration plans to fight terrorism. Released prisoners can potentially be tracked. The hands of national security however, once tied, are difficult to free. Fighting terrorism as if it were an issue of law enforcement will potentially, and dangerously, bind our hands in that endeavor:
The department has to decide by next month whether it will reverse course from the Bush administration, which had repeatedly invoked the so-called state secrets doctrine to shut down legal challenges to several lawsuits dealing with national security. Officials also face a February deadline on whether to extend habeas corpus rights to detainees at Bagram Air Base in Afghanistan.
Above are two prime examples of how the policy switch advantages the enemy at the expense of the citizens. In the first, the folly of fighting terrorism through the courts could not be clearer. It is nearly impossible to build a public case based on state secrets. In the law enforcement model, the prosecution is not allowed to have secrets, and defendants are entitled to see the evidence against them as well as to confront all witnesses. That is because our nation is founded on the principle that the people, from whom the government derives its power, should enjoy the benefit of presumptions and the government should be required to make its case. When trying to confront our nation’s enemies, however, we do not want to allow them the same benefit. By engaging them in courtroom battles rather than in military/intelligence ones, we do just that.
Specifically, allowing state secrets to become part of a legal case allows the enemy to see what cards we’re holding. It is a surefire way to devalue our national intelligence. Indeed, any time sensitive information is available to more than a few people it eventually becomes public, and lawyers sworn to secrecy are no different (see e.g. Lynne Stewart). Yet, despite these dangers, the Obama DOJ may be considering backing off the positions staked out by the previous administration:
The case dealing with the state secrets doctrine, which allows the government to rebuff lawsuits by invoking national security concerns, involves al-Haramain Islamic Foundation. A federal trial judge in San Francisco ruled that the government could not invoke the doctrine to block a lawsuit by al-Haramain, which has asserted that the government illegally listened in on its conversations.
The Bush administration used the doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position.
Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course.
The Justice Department has to file a new brief by Feb. 13. Jon B. Eisenberg, who represents al-Haramain, said the schedule meant that “Holder and company have to decide pretty quickly if they want to keep opposing this case with the state secrets doctrine.”
If the DOJ opts to forego the state secrets doctrine as a defense, then it will be left with two undesirable choices: (1) make national intelligence discoverable in a court of law, or (2) drop the case altogether and set the defendant free. Neither choice is satisfactory, but both are the inevitable outcome of pursuing terrorism under the rubric of law enforcement.
Similarly, extending habeas corpus rights to prisoners detained on the battlefield is an exercise in futility. Of course, that ship sailed with the ruling in Boumediene v. Bush. I’m not sure what argument the government could make that any prisoners under the control of the U.S., regardless of where they are being held, are not entitled to some sort of habeas proceeding. And since the very procedures deemed constitutionally valid by the Supreme Court in Hamdi were struck down as inadequate in Boumediene, I don’t know what options are actually left to the Obama administration other than the unsavory prospect of field executions.
Again, these are the inevitable results of waging war as if we were fighting crime. The two arenas are decidedly distinct, and the tactics and strategies of one do not translate well into the other. If we insist on treating terrorists as criminals, cloaked with the protections of our Constitution and privy to the secrets that ensure our security, then we invert the promise of a national defense. The end result is to allow the enemy to be in control of our security interests rather than the other way around.