by Glenn Greenwald, Salon.com
I was wondering if someone could reconcile these three things:
From Obama terrorism adviser John Brennan, on this weekend’s Meet the Press:
MR. GREGORY: Why isn’t [Umar Farouk AbdulMutallab] being treated as an enemy combatant instead of a criminal?
MR. BRENNAN: Well, because, first of all, we’re a country of laws, and what we’re going to do is to make sure that we treat each individual case appropriately. In the past Richard Reid, the former shoe bomber; Zacarias Moussaoui; Jose Padilla; Iyman Faris; all of them were charged in criminal court, were sentenced some in — in some cases to life imprisonment.
From The New York Times, September 24, 2009:
The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantánamo Bay, Cuba, officials said Wednesday.
Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban.
In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.
From CNN, November 13, 2009:
Holder also announced that five other detainees held at the U.S. military detention facility at Guantanamo Bay, Cuba, will be sent to military commissions for trial. They were identified as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri.
So in order to justify giving a civilian trial to AbdulMutallab, John Brennan cites the fact that we are “a nation of laws.” Progressives defending the decision to treat AbdulMutallab as a civilian criminal are similarly invoking “the rule of law.” The Washington Monthly’s Steve Benen, for instance, cites The American Prospect’s Adam Serwer to argue that “‘it’s really remarkable that we’ve gotten to a point in American history where the Republican Party has managed to make fair trials for people who commit crimes ‘controversial'” and adds: “that Brennan has to mount a ‘defense’ for following the rule of law, the same exact way the Bush administration did, suggests just how far the discourse has strayed from reality.”
Benen is right that the Obama administration is essentially doing what the Bush administration did with regard to terrorism suspects, but what does that have to do with “the rule of law”? How can anyone possibly argue simultaneously that (a) the “rule of law” requires civilian trials and (b) the Obama administration is following the “rule of law,” when: (c) the Obama administration is explicitly denying civilian trials to numerous terrorism suspects whenever it feels like doing so? If someone actually believes that “the rule of law” requires civilian trials for terrorism suspects, then it cannot be rationally argued that the Obama administration is upholding the “rule of law,” since providing civilian trials — which the “rule of law” supposedly requires — is a policy they are explicitly rejecting.
In order to explain this glaring contradiction, many Obama defenders — following the administration itself — have started to distort rather significantly what the “rule of law” means and what it requires, in order to squeeze Obama’s hybrid approach into it. Here’s what Josh Marshall said in defending a civilian trial for AbdulMutallab:
The truth is, until President Obama got into office and Republicans needed a new political attack angle, the idea barely occurred to anyone that you wouldn’t do a regular trial with someone you had plenty of evidence against.
I was always under the impression that “the rule of law” requires charges for all people accused of crimes whom we want to imprison — not only those against whom “you had plenty of evidence.” If the “rule of law” only requires a trial when the State is absolutely certain it can convict someone because it has “plenty of evidence against them” — and then allows the use of military commissions or indefinite detention when the evidence is weak — then “the rule of law” is a ludicrous joke. Criminally charging people only when you know in advance you can win — and imprisoning the rest without the benefit of criminal charges — is a sham system of show trials that is the opposite of “the rule of law.” What uncontroversial precept of justice ever suggested that the level of due process to which one is entitled is in any way dependent upon the amount and strength of evidence the State has to convict you? None that I’ve ever heard of — at least not until this year. If anything, isn’t it even more imperative under “the rule of law” to give a real trial to someone when — unlike KSM or even AbdulMutallab — the evidence against them is weak and/or they deny the accusations against them?
Salon.com via CD