NYT’s Mahler Misses the Mark

In the NY Times Week in Review on Sunday, Jonathan Mahler opens his piece about “How to Define Terror” with the story of Salim Hamdan, former driver for Osama bin Laden, who was shipped back to Yemen last week after being acquitted of most of the charges brought against him by the US military commissions at Guantanamo Bay. Mahler apparently believe that Hamdan’s saga reveals why we need a special national security justice system — what Mahler calls “a new, hybrid plan, one that blends elements of both traditional military conflict and criminal justice.”

In fact, the Hamdan story suggests quite the opposite: thanks to just such a specially-created justice system, Hamdan, who the Bush administration painted as a dangerous terrorist plotting with bin Laden and arming warriors to attack America, was sent home last week to serve just a few months’ more in a prison in Yemen; meanwhile, more than 225 other detainees, some held almost 7 years without charges or trial, remain stuck indefinitely at Guantanamo Bay.

What kind of justice is that?

If anything, Hamdan’s case highlights the absurdity of creating a new system of military or “hybrid” justice to try people for crimes that could be prosecuted more easily, at less expense and with more legitimacy in our existing federal criminal justice system. (I’ve written previously about the debate over creating new courts for TWI.)

In his piece in the Times, Mahler, relying on a few neocons and former Bush administration officials, suggests that prosecuting suspected terrorists in the federal criminal justice system where we’ve always tried them would somehow mean the United States must relinquish its right to use military power to defend itself against enemies and imminent attacks.

In fact, it would mean no such thing.

Mahler writes that “ceding the military paradigm altogether would severely limit [Obama's] ability to fight terrorism. On a practical level, it would prevent him from operating in a zone like the tribal areas of Pakistan, where American law does not reach.”

But where the US tries suspected terrorists — whether in military commissions, federal courts or newly-created “hybrids” — has nothing to do with whether it maintains the right to shoot missiles into al Qaeda training grounds. As Mahler himself notes, President Clinton launched cruise missiles against terrorist camps in Afghanistan after al Qaeda attacked two American embassies in Africa in 1998. Mahler neglects to mention that the terrorists who carried out those bombings were subsequently tried, fairly and expeditiously, in a US federal court. Four terrorists were sentenced to life in prison without parole, plus $33 million in restitution to the bombing’s victims and the US government.

That one trial alone, completed just three years after the embassy bombings, embodies more success than the Bush administration has had in the last seven years of trying to bring to justice the perpetrators of its so-called “war on terror.” As I describe in this article, only three people have been tried by the Bush military commissions at Guantanamo Bay so far; two were sentenced to seven years or less in prison. The only terrorist sentenced to life in prison boycotted his trial and offered no defense at all.

In conflating the president’s right to use the US military with the question of where we should prosecute suspected terrorists, Mahler is perpetuating a misleading and dangerous idea that fighting terrorism requires all sorts of exceptions to the usual rules set out in the US Constitution and international law. But it’s precisely the attempt to carve out exceptions and new rules for supposedly special circumstances that’s led to the Bush administration’s dramatic failures in the terror war so far. No only have none of the perpetrators of the 9-11 attacks been brought to justice, but the evidence against many of them may be so tainted by torture and other abusive interrogation tactics that much of it may be completely unreliable and therefore unusable — not only in federal court, but in any military or hybrid justice system that could be created. (Even the Bush military commissions have had to suppress evidence found to have been extracted by torture.)

What’s more, any new military or “hybrid” system that seeks to bend the rules of evidence or rights of defendants will surely be challenged not only in the US court system, but in the global court of public opinion, as both our allies and our enemies see the United States compromising the very principles of liberty and justice it claims to be fighting for. That’s not going to help us any in the war against terrorism.

Mahler is right that the new administration will need to clarify the meaning of the “war on terror” and make clear who we’re at war with and what it’s entitled to do to protect the United States against that enemy. But it will have a lot of explaining to do if it also decides that our existing federal and military courts, which have proven quite capable until now, are not up to the task of bringing suspected terrorists to justice.