No Comment — February 4, 2010, 11:12 am

The Holder-McConnell Letter

The American political landscape is heavily populated with fake debates—hot-button issues designed to rile people up, but which are not likely to have any real impact on policy. One of the best examples of this in modern times is the fake rage over trying terrorists in federal courts and the procedures that followed the arrest of the “panty-bomber” Abdulmutallab. The simple fact is that the policies of the Bush and Obama Administrations have been essentially indistinguishable, and the rhetorical war is little more than political demagoguery.

Attorney General Eric Holder has been remarkably staid in response to these attacks. On this score, he’s doing what his office requires of him: the attorney general shouldn’t take the bait and sink into partisan mudfights. But he has struck back with a closely reasoned, detailed letter to Senate Minority leader Mitch McConnell that deserves to be scrutinized closely. The letter’s tone is even and patient, but it makes the essential points:

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government’s legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system.

It’s worth reading the whole thing.

Karl Rove settled on the “weakness” of the criminal justice system and the “strength” of the war paradigm as a major Republican talking point in 2002. We’re now eight years into this process, and Republican leaders continue mindlessly to mouth the same points. They don’t grapple with the obvious replies because the Democrats rarely make them. So here goes:

(1) The idea that criminal justice is “weak” and war is “strong” is absurd. In fact, the political dynamics are just the opposite. Margaret Thatcher realized that during the “troubles” in Northern Ireland, when she correctly resisted using the war paradigm to address the situation, and instead chose to label the terrorists as thugs and criminals and dealt with them through the criminal justice process. Terrorists actually love the war paradigm. It elevates them to the status of acknowledged warrior-opponent, which is a propaganda win for them. On the other hand, the criminal justice approach allows the government to portray them as vicious killers–assuming that’s the case–and to try and sentence them as criminals.

(2) The idea that the criminal justice and war paradigms are mutually exclusive is wrong. Of course, both of these approaches exist, and the executive is free to use both as the circumstances warrant. The president can certainly deploy military resources against a terrorist threat, and he can seize and hold terrorists as belligerents without charges—provided that they actually are belligerents. This does not exclude bringing criminal charges against them. But it’s undeniable that the war paradigm muddies the waters and may actually make it more difficult to bring some kinds of criminal charges, such as material support, which are available in the criminal justice world.

(3) The idea that military commissions will lead with more certainty to convictions and long sentences is wrong. Republicans seem to proceed from the assumption that the military commissions are kangaroo courts in which defendants have no rights and we move straight from the charge sheet to sentencing, with little in between. But our experience with the commissions in the Bush era shows that they are broadly like the military’s court-martial process, and the more they deviate from that process the more likely they will be overturned on review and disrespected. If we compare the sentences handed out by military commissions so far with those obtained by federal prosecutors in criminal court proceedings, the scales tip decisively in favor of the latter—they are faster to judgment, have equal likelihood of ending in conviction (all around 90%), and produce longer sentences.

(4) There is little meaningful difference in the Bush and Obama approaches. Holder drives this point home. The Republican rhetoric starts by dispensing with everything the Republican administration actually did between 2001-2009. In fact the Obama Administration reflects straight-line continuity with the decisions made by Ashcroft, Gonzales, and Mukasey. Most criticisms that the Republicans articulate could just as easily be seen as criticisms of their own management of the Justice Department.

(5) Justice is not a weakness. It is not, as Rove would have it, a flaw in the democratic system, best replaced by presidential discretion. It is a strength of that system that establishes its legitimacy. When the U.S. and its allies acted swiftly to bring defendants to justice at the end of World War II, that was broadly recognized in the world as proper. It helped materially advance an education process for the occupied nations of Japan and Germany about the fundamental criminality of their leaders. The failure of the Bush Administration to bring Al Qaeda leaders to trial, present clear evidence of their criminal misdeeds, and secure convictions was a fatal error.

When the Republicans rant about trials and arrests, they want to distract us from the mistakes they made over the last eight years, which cost the nation precious blood and treasure, and which continue to hamper us in the battle against terrorism. Much of the argument offered by the Republican leaders is not carefully studied strategy, but rather an attempt to cover up horrendous mistakes of the past. The real worry is not that the Obama Administration has deviated from the course that the Bush-Cheney team set, but that it is more a prisoner of the past than it needs to be.

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