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"The Phony Tough-on-Terror Crowd" By The New York Times Editorial
28 June 11
Republicans and Democrats are championing bills to further militarize the prosecution of terrorists, beyond anything even President George W. Bush proposed.
They want Americans to believe the legislation will keep the country safer. In fact, these bills could end up tying the hands of FBI agents and other law enforcement officials trying to disrupt terrorist plots. They are likely to deprive prosecutors of their most powerful weapons in bringing terrorists to justice. And they come perilously close to upending the prohibition, which dates back to Reconstruction, against the military's operating as a police force within the United States.
There is no sign that the White House tried to stop the House from passing a particularly awful version of these bills, which would move most, if not all, terrorism cases from civilian courts to military tribunals. And there is no sign the White House tried to stop the Senate Armed Services Committee from approving only a slightly better one.
Democrats on that committee insist they defeated far worse proposals. There are, however, some issues that require an unwavering stand. Preserving the role of law enforcement agencies in stopping and punishing terrorists is one of them. This country is not and should never be a place where the military dispenses justice, other than to its own.
President Obama must push the Democratic leadership to amend the Senate bill - and make it clear that he will veto any bill that turns over proper law enforcement functions to the military.
For decades, terrorism has been prosecuted - with great success - in civilian courts. The Bush team insisted, falsely, that these courts were not tough enough for the war on terrorism and pushed the use of military courts for some "unlawful combatants."
Both the Senate and the House versions of the bills now remove the possibility of civilian trial and mandate military detention and military trial for anyone deemed to be a member of Al Qaeda "or an affiliated entity." Under current political thinking, that means pretty much anyone arrested for carrying out or plotting a terrorist act anywhere. The bills exclude American citizens, and the Senate bill appears to exclude lawful residents of this country, but government lawyers fear that is not clear enough.
The Senate bill allows the secretary of defense to transfer a prisoner to law enforcement custody in consultation with the secretary of state and the director of national intelligence. The likelihood of that happening given current politics is infinitesimal, but more important, it is the statutory job of the attorney general to decide when and how to prosecute federal prisoners. Cutting him out of the process is an effort to turn all terrorism cases into matters of war, not law.
Attorney General Eric Holder Jr. and the Obama team are to blame in part for feeding the political paranoia that led to this pass. Mr. Holder properly decided to try Khalid Shaikh Mohammed and other 9/11 plotters in a federal court in New York, but failed to consult with New York politicians, who scurried for cover and scuttled the prosecution.
The most basic truth - which almost no politician will dare to admit - is that federal court trials work. The military tribunals (which started with Mr. Bush's kangaroo courts and now involve a system that is somewhat more refined but still flawed) have managed to extract a few minor plea deals. They have yet to render a verdict or impose a stiff sentence on a single high-profile terrorist.
Since 9/11, hundreds of prisoners have been convicted of terrorism or related crimes in civilian courts. Federal prosecutors have many more charges they can file against prisoners than military prosecutors do. Sentencing in federal court is by a judge using tough guidelines. Military commissions have no experience handling capital-punishment cases. And many countries will not send a prisoner to the United States if he will face military prosecution.
Government lawyers say some countries will not even provide evidence if it will be used in a military trial. In short, it seems unlikely that a military tribunal could ever hold a trial or impose a sentence that would stand up to American or global democratic values.
The Senate and House bills also could cripple FBI investigations of terrorists and terrorist plots. Lawyers in the Obama administration say that if an agent interrogating a prisoner decided the suspect was a member of Al Qaeda or any "affiliated" group, he would have to stop the questioning, no matter how well it was going, and have the prisoner flown to Guantánamo or a military brig in this country.
The peddlers of fear and the phony tough-on-terrorism crowd have dominated the national security debate for too long. The president must step in and stop this march toward endless war and the perpetual undermining of American constitutional values.