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Senator McConnell has an op-ed in the Washington Post sharply criticizing the Obama administration for pursuing a civilian court prosecution of two Iraqi men who were arrested in Kentucky recently on charges of involvement in and ongoing support for the insurgency in Iraq. I think he raises some important questions about when we should prioritize intelligence-gathering and when we should rely on our commission system, but I disagree with many of the particular arguments he advances and worry that they will add to utterly misguided effort to take the prosecution option away from the executive branch in terrorism-related cases. Is it novel to pursue civilian criminal prosecution in such a case, or would it be novel to pursue a military commission proceeding? If anything is “ordinary” when it comes to prosecuting terrorists and insurgents involved in Iraq, it is prosecution in the Iraqi criminal justice system. Few people seem to realize it, but we have been out of the military detention business in Iraq for years (except for a shrinking population of legacy detainees). Even during the period when we did employ military detention there (under a security internment rationale modeled on GCIV), moreover, we did not conduct our own prosecutions—military commission or otherwise. Perhaps we should have been doing that all along, rather than relying on the Iraqi system. Perhaps the usual practice is beside the point where the capture occurs outside Iraq, as in this case. But don’t make the mistake of thinking that using a commission in this instance would be consistent with past practice. Must we send the men to GTMO in order to acquire intelligence from them? There is an obvious need to get intelligence from these men, through lawful means. McConnell suggests that conventional law enforcement and the courts are not up to that task, and that the men should be sent to GTMO to serve that interest, among others. But as I noted before, this conflates the choice of how to interrogate prisoners with a series of only loosely-related questions regarding where to hold them, what legal framework to invoke for their detention, and what forum to select for eventual prosecution. Keeping these men where they are, and prosecuting them in civilian court, does not mean that they cannot be interrogated by the HIG or some other appropriate set of persons; nor, for that matter, are any of us in as good a position as those in the executive branch to judge what is likely to work best in persuading these two to talk. Senator McConnell is right to draw attention to this question, in short, but wrong in assuming that one must opt for GTMO and military commission prosecution in order to address the intelligence-collection concern. Reprisals? The op-ed also asserts that Bowling Green will be risk of reprisal if the trial is conducted there. To the best of my knowledge, there is no evidence that any community—let alone particular jurors or judges—has ever been targeted in reprisal for the hundreds of terrorism-related prosecutions that have occurred over the past many years. Sure it is possible in theory, but there is no particular reason to think that is a concern in this case. In any event, judges and jurors have far more to be concerned about in relation to the endless parade of gang-related cases that come through our courts on a constant basis. Is Obama different from Bush when it comes to civilian prosecution of terrorists captured in the United States? This point gets made repeatedly, yet somehow never seems to sink in: The Bush Administration ROUTINELY relied on civilian criminal prosecution in cases of persons captured inside the United States, including persons directly linked al Qaeda itself and persons who actually attempted to carry out terrorist attacks for al Qaeda; on only two occasions (Padilla and al-Marri) did the Bush Administration try military detention instead, and both cases very nearly precipitated highly-adverse judicial rulings before each ended up back in the criminal justice system. One can criticize Bush and Obama together, then, if one wishes to argue that we should never use the criminal justice system in such cases. And one can argue that Obama administration efforts to move detainees from GTMO to the US for civilian prosecution is a bad idea. But one cannot argue that reliance on the civilian system for persons captured in the U.S. somehow differs from the Bush approach.
Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.
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