Congress asks Obama to Use Military Commissions

Billy Corriher 

President Obama took office after campaigning as a defender of civil liberties.  But his record as President has disappointed many civil liberties advocates.  Some argue that Obama’s policies for handling detainees are nearly indistinguishable from those of President Bush’s second term.  The administration failed to close the prison at Guantanamo Bay in the face of fierce political opposition.  Obama has not hesitated to use American weaponry, such as unmanned drones and Special Forces, even in countries where we are not engaged in prolonged conflict.

Despite this flexing of executive power, Republicans insist on painting President Obama as “soft” on terrorism.  Last week, several members of the House of Representatives wrote to Obama about Ahmed Abdulkadir Warsame, the alleged al Qaeda associate from Somalia.  The letter argued that Obama’s decision demonstrated that he had relinquished the “absolutely critical” option of trying suspected terrorists in military commissions. The letter warns of lost intelligence and “serious difficulties with removing terrorists who are either acquitted or who conclude their sentences.”  Senator Mitch McConnell raised similar concerns, “[T]he administration has purposefully imported a terrorist into the U.S. and is providing him all the rights of U.S. citizens in court.” According to McConnell, “This ideological rigidity is harming the national security of the United States of America.” McConnell and 22 other Senators also sent a letter to Obama.

These dire warnings about terrorists released onto our streets are completely unwarranted.  Our criminal justice system has convicted hundreds of terrorists since 9/11, and the Bush administration’s criminal trials did not raise many alarm bells.  Moreover, the Obama administration has retained the the authority to hold dangerous terrorists indefinitely, so the idea that a dangerous terrorist will be “released into the general population” is outlandish.  McConnell’s concerns about the risk of acquittals seems unjustified. Media reports indicate that Warsame provided important intelligence.   After his initial interrogation, he was read his Miranda rights.   A federal investigator then began the questioning again, and Warsame continued talking. There is no reason why professional federal prosecutors cannot handle terrorism cases.  It is time for Republicans to engage in a substantive dialogue and abandon the political talking point that Democrats are not up to the fight against terrorism.  Obama has taken a tough approach to fighting al Qaeda, and he is resisting Congressional efforts to determine how that battle should be fought.

Although the president has given few indications of how he will use military commissions, his vision seems to differ from that of Congress.  Warsame’s case suggests that Obama is intent on using criminal courts.  The Military Commissions Act of 2009 requires that certain suspects be tried before military commissions, but it also grants the President the authority to establish these tribunals.  How much deference is due to Congress on these matters?  The Constitution grants Congress the authority to declare war and to “make rules concerning captures on land and water.”  The President bears primary responsibility for national security, and the executive branch has always had unfettered discretion in making prosecutorial decisions.

Obama has rightly resisted pressure to continue sending detainees to the legal limbo that is Guantanamo Bay, and he should protect the President’s prerogative to carry out the broad directives of Congress in the Authorization for Use of Military Force.  McConnell’s fearmongering exemplifies the political theater we can expect if Congress is in charge of these decisions.  Obama is asserting a robust view of executive authority, but he is doing so by resisting Congress’ efforts to increase our reliance on military commissions.  Criminal trials for suspected terrorists will only strengthen our country in the struggle against terrorism. Trials by military commission often face legal challenges, and terrorists should not be treated differently from other criminals just because they are motivated by political intentions.

Those who further ideological ends through violence reject our society’s fundamental rules.  We must embrace those rules.  The same rule of law that forbids mass murder to further political ends requires that our government treat all criminals in the same manner.
Aside from arguing for increased use of military commissions, the letters from Congress raised one valid concern. The Senators’ letter describes “an intolerable situation” where terrorism suspects are “subject to case-by-case decisions . . . because the United States lacks an overarching policy” on handling detainees. The letter asks if Guantanamo Bay is still an option.  Obama has rightly resisted pressure to continue sending detainees to the legal limbo at Guantanamo, but the country would be well-served by a consistent policy for handling terrorism suspects.

The President should issue an executive order outlining when military commissions are appropriate. If Obama continues this “case-by-case” approach, a future President could exploit such flexibility to return to the dark days of torture and indiscriminate detention. A concrete policy would at least force the next President to renounce Obama’s policy or come up with an alternative.  If Obama fails to articulate the boundaries of his executive authority, future Presidents might resurrect theories of unbounded executive power. The Supreme Court recently declined to hear appeals from many Guantanamo detainees, and it is showing little appetite for entering the political branches’ dispute over handling suspected terrorists.  Let’s just hope that President Obama, even if he cannot close Guantanamo, has enough foresight to draw some lines in the sand.

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