In today’s New York Times, Charlie Savage tells us that Republicans are continuing to tie the Obama Administration’s hands in dealing with terrorism suspects:
Republican senators are pushing to include a provision in a 2012 military authorization bill that would require [Al] Qaeda suspects accused of plotting attacks and who are not American citizens to be held in military custody — even people arrested in the United States. The White House opposes such a blanket rule.
Republicans are lining up near-uniformly behind the measure, and they seem to be recruiting a number of Democrats as well. It appears to be part of their campaign to portray the American criminal-justice system as too weak to meet the challenges of trying terrorists. Instead they want to militarize the process, consolidating terrorism cases in the hands of commissions at Guantánamo.
In a short piece at the National Interest, senior counterterrorism analyst Paul Pillar explains why this approach is wrongheaded:
Applying the “war” notion to counterterrorism has several negative consequences. It overly militarizes counterterrorism itself, encouraging excessive reliance on the military instrument. It invites the tendentious association of counterterrorism with unrelated military adventures or misadventures, as happened with the Bush administration’s Iraq War. It further invites the open-ended use of extraordinary and even extra-legal methods, as occurred with the Bush administration’s practices on detention and interception of communications. It elevates terrorists from the status of criminals to that of warriors.
The Obama administration sensibly discarded the term “war on terror,” but the “war” view of counterterrorism lives on and continues to have negative consequences. The most recent, and in a sense the most extreme, application of this view is found in efforts by Republican members of Congress to bar the use of civilian prisons and courts to handle terrorist suspects. These efforts do not involve the expansion of any counterterrorist tools or resources. Instead, they involve a prohibition on the use of certain tools and resources—ones that have been used effectively for years to handle many terrorist cases. How could such a prohibition be expected to improve counterterrorism?
Of course, it won’t improve it. Instead it would be a new impediment to counterterrorist investigations. If enacted, it would lead to awkward and ineffective procedures such as the FBI having to interrupt an investigation that had just gotten under way in order to turn a suspect over to military custody.
To provide another example of a problem with militarizing justice for terrorist suspects, consider that most suspects seized abroad are held by foreign police. The United States needs the cooperation of these forces, and the support of their governments, to get its hands on the terrorists. But the Guantánamo system has fallen into such disrepute that very few countries will send America a prisoner if it means he’ll be held and prosecuted before the Gitmo military commission. It would become practically impossible for the U.S. to get custody in some cases.
The Republican measure is not only dumb, but hypocritical. Only four years ago, its sponsors were zealously arguing that the president needed to be given all possible tools to fight the “war on terror.” What has changed since then? Only one thing: the party in control of the White House. Obama’s tactics and handling of terrorism cases are barely distinguishable from Bush’s. Both presidents employed military tribunals and the criminal-justice system; both also funneled far more cases into federal court than into Guantánamo. And with good reason: prosecutors got better results in the federal courts.
Could it be that Republicans are seeking to embarrass Obama by ensuring that Guantánamo is kept open, and that his campaign pledge to close it is therefore never fulfilled? That sounds about right, though it’s also true that the G.O.P. never tires of offering sacrifices to the god Mars, tending to see military force as the solution to every problem. In any case, the measure reveals yet again the miasma that has descended on Congress, which recently won a record-setting 9 percent approval rating. That the Republicans would push a foolish provision is unsurprising; what’s amazing is that some Democrats are cowed enough by their opponents to support the initiative.