2-24-2010By Daphne Eviatar
Senior Associate, Law and Security
Cross-posted at Huffington Post.
Senator Lindsey Graham (R-S.C.) likes to tout his experience as a former military lawyer. Graham apparently thinks this makes him sound more convincing when he goes around advocating military trials for all suspected terrorists, as he’s been doing lately. Graham’s now trying to get that idea signed into law in a bill he’s introduced in the Senate. A similar provision is likely headed to a vote today in the House of Representatives.
The odd thing is, in doing this, Graham is going up against a huge and rapidly-growing number of military leaders – including Defense Secretary Robert Gates himself – who say that forcing the government to try suspected terrorists in military commissions is a really bad idea.
In October, Gates joined Attorney General Eric Holder in a letter to Senators urging rejection of the Graham amendment. Noting that the Pentagon and Justice Department now work jointly to evaluate every terrorism case, they wrote that “it would be unwise, and would set a dangerous precedent, for Congress to restrict the discretion of either department to fund particular prosecutions.”
As the defense secretary put it: “We must be in a position to use every lawful instrument of national power—including both courts and military commissions—to ensure that terrorists are brought to justice and can no longer threaten American lives.”
Then on Sunday, former Secretary of State General Colin Powell, who served in both the Bush I and Bush II administrations, made the point that civilian federal courts have been far more effective than any military commissions.
“In eight years the military commissions have put three people on trial,” said Powell. “Two of them served relatively short sentences and are free. One guy is in jail.” Meanwhile, the civilian court system “has put dozens of terrorists in jail and they’re fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn’t born out by the history of the military commissions.”
In an apparent reference to Graham, Powell added:
“I think a lot of people think, ‘just give them to the military and the military will hammer them.’ Well, guess what? Officers in the military are obliged to follow the constitution. Military lawyers are obliged under their oath to give the best possible defense to the defendant no more whether he’s a terrorist or not. And so you didn’t get out of the military commissions what a lot of people thought at the beginning you would get and a lot of us did not think it was a good idea in the beginning.”
Even the former chief judge of the Army’s Court of Criminal Appeals in the JAG Corps disagrees with Lindsey Graham, despite Graham’s former JAG credentials.
Military investigators know how to get information on an actual battlefield, Retired Brigadier General James P. Cullen told the New York Times the other day. But prosecutors and FBI agents are better able to link intelligence to track down more terrorism suspects. They’re also better at winning convictions.
“You’ve had about 800 cases that were supposed to be run through the military commissions in Guantánamo, and there have only been three convictions,” said Cullen. “You have three-eighths of 1 percent return on military commissions, versus 90 percent plus when they are tried in the federal court.”
Yeah, but what about all those lawyers who Graham says will tell their clients not to talk? As Graham put it recently: “Is reading Miranda rights to terrorists any way to fight a war?”
Actually, retired 4-star General Colin Powell doesn’t have a problem with that.
“I have no problem with them being tried here in the United States,” said Powell. “We have two million people in jail. They all have lawyers. They all went before the court of law and they all got hammered. We have got three hundred terrorists who have been put in jail not by a military commission but by a regular court system.”
As for Khalid Sheikh Mohammed, who Graham seems to think has special powers that will be unleashed against Americans as soon as he enters a federal courthouse, Powell said: “I have no problem with him being tried in our federal system here in the United States.”
Here’s what four other retired generals had to say about Lindsey Graham’s idea back in September:
“We believe that it would be wrong to treat the leaders of al Qaeda as warriors deserving of military trials,” said Retired Rear Admirals Don Guter and John Hutson, and Retired Brigadier Generals David Brahms and James Cullen in a letter to President Obama.
“America’s well established system of civilian justice is not just well equipped to handle these cases, it is far better suited to the task of discrediting and defeating the terrorist enemy we face. When the planners of 9/11, including Khalid Sheikh Mohammed, are finally brought to justice, it will be an extraordinarily important moment in the struggle against terrorism. If these trials are held before civilian judges and juries, it will highlight the strength and legitimacy of our system of justice, and at long last focus the world’s attention where it belongs: on the crimes these men committed against us, rather than on how we are treating them.”
Even the new-and-improved military commissions will not be able to achieve that, the military men warned. Not only are they still tainted with the stigma of Gitmo, but their questionable legitimacy will become a tactical advantage for terror suspects:
“Defendants before military commissions will have the advantage of being able to challenge the legitimacy of the system in which they are being tried, instead of simply having to face the evidence against them.” That will further delay justice: “Particularly in the most prominent terrorism cases, our nation cannot afford more legal controversy and doubt; and we will not have another chance to get this right.”
Even if the military commissions were flawless, military leaders claim that giving terrorists warrior status only bolsters their cause.
“Like virtually all terrorists throughout history, al Qaeda members want to be seen as soldiers, not as criminals. That warrior mystique helps them recruit more misguided young men to their ranks, and justifies, in their own minds, the murder of their enemies. This is why al Qaeda has always described its crimes as acts of ‘war.’ ”
Counter-terrorism advisor John Brennan has said exactly the same thing.
And in January, a group of 33 different retired military leaders, with experience in every war the U.S. has waged since 1941, came together to urge President Obama not to treat terrorists as warriors deserving of special military tribunals.
“Some have suggested that suspects like Umar Farouk Abdulmutallab, the man accused of attempting to bomb Flight 253, do not deserve the protection provided in our federal courts and should instead be subject to military tribunals,” they wrote. “On the contrary, we believe that Abdulmutallab and his ilk should be treated as the would-be mass murderers they are. To bestow on him and others like him the designation of “enemy combatant” reinforces their claims to be jihadist warriors. They are not warriors. There is neither nobility nor ideological justification in murdering innocent civilians.” As for the claim that they’ll get a high-profile platform to spew their hateful ideologies, the military leaders wrote: “On the contrary, we are confident that these trials will showcase America at its best, a nation of laws.”
So the overwhelming majority of actual military leaders, with hundreds of years of military experience behind them, all disagree with Lindsey Graham.
I know Senator Graham spent six and a half years as an Air Force lawyer, but he’s never prosecuted a single terrorist. After all, that’s not what military lawyers do. For the most part, they prosecute and defend U.S. military personnel for mostly minor crimes.
So who should we believe?
I think Judge William Young, the federal court judge who sentenced “shoe bomber” Richard Reid to life in prison without parole after the Bush administration won his conviction in a civilian trial, put it best when he said to Reid at his sentencing:
“You are not an enemy combatant.
“You are a terrorist.
“You are not a soldier in any war.
“You are a terrorist.
“To give you that reference, to call you a soldier, gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or if you think you are a soldier.
“You are not–you are a terrorist.
“And we do not negotiate with terrorists.
“We do not meet with terrorists.
“We do not sign documents with terrorists.
“We hunt them down one by one and bring them to justice.
“So war talk is way out of line in this court. You are a big fellow. But you are not that big.”