With all the talk of whether Khalid Sheikh Mohammed and the other 9/11 terrorists should be tried in civilian or military court, and concurrent discussion of whether Christmas Day underwear bomber Umar Abdulmutallab should have been arrested and Mirandized or shipped off to Gitmo, it feels like there is a lot of macho posturing going on instead of focusing on what is best for national security.
“The president doesn’t understand we’re at war,” people say. “Terrorists aren’t criminals…they’re the enemy,” say others. It seems everyone is jockeying to prove how poorly they can treat the enemy and thus how tough they are. But being tough isn’t the goal of a war…winning is the goal. Being tough is only relevant if it helps us win; toughness qua toughness is pointless.
Of course Obama understands we’re at war; everyone understands we’re at war. Duh. But conservatives don’t seem to understand that this is a war of messages just as much as a war of guns. We need to imprison terrorists and kill terrorists, yes, but we also need to prevent people from becoming terrorists. And the way we do that is with a hearts and minds strategy, exactly as David Petraeus, every conservative’s hero, laid out in the Army’s counterinsurgency manual.
Every time I see or read an interview with someone in the Middle East, or look at the results of surveys from that region, the consistent message is that when the US acts like a bully or a hypocrite (eg. supporting totalitarian regimes while talking up democracy (hello Egypt)), the people get angry and listen to Al Qaeda and its ilk. When the US treats people fairly and follows its own laws, folks in the Middle East think better of us. Look at this graph showing improved Middle Eastern views of the US since Obama’s election. As Stephen Walt writes in Foreign Policy, Bush’s tough detainee policies were a “propaganda boon” for Al Qaeda.
Trying KSM in civilian courts would show that the US follows its own laws; it would demonstrate commitment to a fair system of justice. This would send a positive message to the unemployed Arab youth from whom Al Qaeda recruits. Our civilian courts can handle this sort of case; we have convicted many terrorists already, and they are serving life sentences in prison. Using civilian courts doesn’t mean we are soft. It means we are fair. Coupled with Obama’s aggressive use of drone strikes to kill Taliban leaders, it’s hard to see how anyone will think we’re soft. In fact, the use of civilian courts here with tough military tactics there is exactly the “balanced application of both military and non-military means” (section 1-113) that General Petraeus calls for in the counterinsurgency manual.
In addition, why should we let Al Qaeda claim the mantle of soldier or warrior by trying them in military commissions? It’s far more insulting to treat them the same way we do common thugs and thieves. As the judge in the Richard Reid trial put it, “you are a terrorist. A species of criminal guilty of multiple attempted murders.” Terrorists want to be seen as mighty warriors. Let’s not give them that propaganda win.
FYI, read here about how the guy arrested in Chicago for helping with the Mumbai attacks, and dropped immediately into the traditional criminal justice system, is singing like a canary.
Part of this “look how tough I am dynamic” is a tendency toward vicious attacks on those who disagree. In a protest of Eric Holder’s decision to try KSM in a civilian court, people called him a “traitor” and yelled to “lynch him” (a particularly terrible to say to a black man, by the way). That really doesn’t help. Reasonable people can disagree on the best way to fight this war against terrorism. I don’t think people who argue for military commissions are traitors or unpatriotic. I may think they are wrong about the best path forward, but I don’t think they are awful people or totalitarian fascists. Maybe focusing on policy would be a good idea.
The protest mentioned above, by the way, was organized by Debra Burlingame, the sister of one of the pilots who was killed on 9/11, and a prime mover in the attacks on the DOJ attorneys who have represented Al Qaeda prisoners. Greg Manning, whose sister was badly burned on 9/11, took the mike to say that Holder would be responsible for “hundreds of thousands dead.” I’m going to come out say something that might be controversial: I am tired of the families of 9/11 victims having special status in this argument. I feel terrible about their tragic loss, of course, but that loss doesn’t make them national security experts. Nor should their quest for vengeance affect us; we left eye-for-an-eye justice behind a long time ago.