Jeff Haynes/ReutersEric Holder delivers a national
security speech regarding the Obama administration’s ongoing counter
terrorism efforts during his visit to the Northwestern University School
of Law in Chicago, March 5, 2012.
Ever since the George W. Bush administration decided to trash the
constitution, the Geneva conventions and federal law, the thought of a
government lawyer talking about justice in the age of terrorism has made
me cringe. Although I hoped to lose this automatic reflex when Barack
Obama took office, I’ve been distressed by many of his national
security moves (like his administration’s persistent use of the state
secrets privilege to deny justice to victims of officially sanctioned
abduction and torture).
That said, Attorney General Eric Holder and Jeh Charles Johnson, the
general counsel of the Defense Department, both delivered strong
speeches on terrorism recently. The contrast between their remarks and
the bad old days of the Bush era was striking.
Some of what they said troubled me. They both seemed to reject any role
for the courts in deciding when to kill American citizens suspected of
terrorism. And I am not as enamored of military tribunals as Mr. Holder
and Mr. Johnson are.
The editorial board and I will address these differences of opinion
on the editorial page, or in a future blog post, or both. For now, I’ll
confine myself to good news. (I should disclosure here that Mr. Johnson
is a good friend, but we have not discussed this post.)
At Northwestern University yesterday, Mr. Holder made a powerful case
for the need to prosecute terrorists in the federal courts. “Simply
put, since 9/11 hundreds of individuals have been convicted of terrorism
or terrorism-related offences in Article 3 courts and are now serving
long sentences in federal prison,” Mr. Holder said. “Not one has ever
escaped custody. No judicial district has suffered any kind of
retaliatory attack.”
Since the Sept. 11, 2001, attacks it has become fashionable in
Congress to talk disdainfully about a “law enforcement” approach to
terrorism instead of a “military approach.” This is nothing but empty
posturing, and Mr. Holder made that clear. “The calls I’ve heard to ban
the use of civilian courts in prosecutions of terrorism-related activity
are so baffling and ultimately are so dangerous. These calls ignore
reality and if heeded, they would significantly weaken – in fact, they
would cripple – our ability to incapacitate and punish those who attempt
to do us harm.”
In his speech at Yale in late February,
Mr. Johnson similarly made clear that there must be limits to military
authority. Mr. Johnson acknowledged that Al Qaeda is a decentralized
force, and that it has migrated away from Afghanistan, but also
cautioned that these facts “should not be interpreted to mean that we
believe we are in any ‘global war on terror,’ or that we can use
military force whenever we want, wherever we want.”
Mr. Johnson added: “In the conflict against an unconventional enemy,
such as Al Qaeda, we must consistently apply conventional legal
principles.” Those include the rules laid out in the Geneva Conventions,
which Mr. Bush’s house lawyer, Albert Gonzalez, dismissed as “quaint.”
He also referred, obliquely, to Mr. Bush’s use of legal opinions (and
I would add intelligence assessments) that were reverse-engineered to
provide justification to existing policies like torture and warrantless
wiretapping. “Group think among lawyers is dangerous,” he said, “because
it makes us lazy and complacent in our thinking, and can lead to bad
results. Likewise, shutting your eyes and ears to the legal dissent and
concerns of others can also lead to disastrous consequences.”
These are powerful words. If President Obama had mustered such
forceful arguments when he tried to close the Guantanamo Bay prison, he
might have had his way.
