Lindsey Graham v. the U.S. Military

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 matter 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 Guantanamo, 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."

Okay, 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."

Lindsey Graham, Meet Alberto Gonzales

Earlier today, former Attorney General John Ashcroft admitted at a Conservative Political Action Conference that civilian trials for terrorists have "use and utility."

Sam Stein on Huffington Post points out that the statement "throws a wrench in Republican talking points" which lately have dismissed the civilian justice system as irrelevant to the war on terror.

But Ashcroft is hardly the first Republican to acknowledge the civilian courts' important role. In fact, there may be no better response to Republican South Carolina Senator Lindsey Graham's latest campaign to militarize terrorism investigations and prosecutions than the comprehensive White Paper on U.S. Counter-terrorism produced by the Justice Department - under George W. Bush.

Senator Graham, meet Alberto Gonzales, the attorney general who signed off on that 2006 Counterterrorism White Paper.

The 2006 White Paper is a 68-page document that extols "the impressive success of the Department of Justice in the war on terrorism," and documents "how the criminal justice system operates effectively as an element of national power."

In fact, the document effectively rips apart every one of Senator Graham's recent argumentssupporting his proposed legislation to require Khalid Sheikh Mohammed and his alleged co-conspirators in military commissions. It also undermines his even more expansive statements since the failed Christmas Day bombing suggesting that all terrorism cases from now on should be handled by the CIA and the military rather than the criminal justice system.

"Civilian trials, which the Obama Administration has proposed, will be unnecessarily dangerous, legally messy, confusing to our own troops who fight and capture terrorists on the battlefield, and very expensive," Graham said recently, promoting his proposed legislation.

Oddly, not once during the Bush administration's eight years did Lindsey Graham complain about the successful prosecutions of accused terrorists in federal courts. Hundreds of them.

According to the 2006 Department of Justice, the criminal justice system has been so successful - it reports winning more than 300 convictions of terrorists since 2001 - by relying on its vast power to conduct transnational investigations, and on a broad range of criminal statutes, such as those outlawing "material support" to terrorists and broadly defining "weapons of mass destruction." Meanwhile, DOJ has aggressively used charges of "immigration fraud" and "false statement offenses" to arrest and imprison suspected terrorists before they can commit a terrorist act.

So what about Senator Graham's claims that terrorism suspects don't talk in civilian prosecutions?

Actually, "our successful prosecutions have produced cooperating defendants who have, in turn, provided intelligence information to investigators, prosecutors and national security officials, leading to further investigation, disruption and prosecution," says the 2006 report.

Moreover, "cooperation with our foreign partners has led to counterterrorism successes in foreign courts as well as in our own..."

Then there's Graham's concern that civilian prosecutions will inevitably lead to the release of classified evidence.

Here's the Bush administration's answer: "Criminal cases that utilize classified intelligence information are a challenge, but the Classified Information Procedures Act, combined with strategic charging decisions, enable us to appropriately handle this intelligence in criminal cases while protecting both the classified information and defendants' due process rights," the 2006 paper reads.

True, the 2006 paper acknowledges that some cases have presented "unique questions, such as how to deal with evidence purportedly available from detainees abroad, how to balance enemy combatant status with our ability to bring criminal charges, and how to authenticate evidence collected by a foreign intelligence service without disclosing that services' sensitive sources and methods." But the government's focus was always on making better use of the criminal justice system's tools and powers. At no time did the government consider abandoning it altogether.

"We aggressively investigate and prosecute in order to protect our national security, protect our cherished rights, and vindicate the rights of victims of terrorist activity and terrorist acts," the paper concludes.

The military commissions simply cannot do the same thing. For one thing, this new, untested system doesn't have prosecutors with decades of experience trying terrorism cases, as Clarence Page pointed out at the Chicago Tribune the other day.

That may be one reason the track record on prosecuting Jihadist terrorists is far stronger in federal court - which has prosecuted 195 since September 11, 2001 -- than in the military commissions, which have prosecuted only three. And two of those have already been released.

John Walker Lindh, for example, the American Muslim convert arrested in Afghanistan, was sentenced to 20 years in prison in a federal court. David Hicks, on the other hand, an Australian convert also fighting for the Taliban, was sentenced to just nine months plus time served by a military commission.

Aside from which court is harsher, on a practical level, military commissions just don't have the same breadth of law to rely on. Created by the Military Commissions Act of 2006, the court's jurisdiction is only over the crimes listed in that law, and over traditional crimes of war. Because crimes like "material support for terrorism," "conspiracy," and even the killing of enemy soldiers have never traditionally been considered war crimes, though, a military commission can't legitimately prosecute any of those crimes that occurred before the MCA took effect. That's a huge limitation - particularly if we're talking about prosecuting the September 11 suspects.

Lindsey Graham apparently thinks that trotting out "military commissions" as the answer to terrorism is going to make him look like a tough guy - "military" just sounds tougher than "civilian."

Recent reports suggest that the Obama administration is considering moving the 9/11 trial, apparently at the urging of Lindsey Graham. But surely the administration doesn't buy his arguments.

Will the fact that even the Bush administration under Dick Cheney was saying the same thing about the critical role of federal courts in fighting terrorism make any difference? I can't believe I'm touting the Alberto Gonzales Justice Department, but on this point, it was right. Someone send that White Paper to Lindsey Graham.

Bullies and Bystanders

The Climate Bullies

When I was in 6th grade, I fell victim to the school bully. I was new to the school and became an easy target for an 8th grade girl with a bad attitude. She picked on me endlessly while other kids stood by and watched. I was humiliated, scared and completely at a loss about what I should do.

Thankfully I had eventually made some decent friends and one day when the resident bully showed up one of them stepped in and told her to stop. Others quickly backed her up; the bully went away and never bothered me again.

My experience with bullying is far from unique. Bullies get away with their behavior over and over again....In our schools, in our offices and even in Congress.

What gives bullies their power? It certainly isn't the victim. And it isn't even the bully. Instead, those with the most power, the ones who can usually make the bullying stop, are the people on the sidelines.

I have been thinking about this phenomenon as I watch the climate debate in the Senate. I see the climate bill itself (and those of us who are pushing for it) in the role of victim; the fossil fuel industry and the Tea Party are the bullies. The bystanders in this situation are the Senators who aren't doing much of anything on climate either way. It isn't hard to spot them, but it has been hard to get them to stand up.

In the face of a crisis like global warming, we don't need quiet witnesses. We need bold heroes to step in, stop the fight, and solve the problem. We need lawmakers to say that now is the time to confront the crisis and jumpstart America's economy.

It all starts with standing up to the bullies.

Consider the Tea Party. These are the bullies who spun health care reform - something that is still supported by the majority of Americans - into a sordid deal. Now they are going after climate legislation.

At the Tea Party Convention in Nashville last week, global warming skeptic Steve Milloycriticized Republican Senator Lindsey Graham (R-SC) for working with Democratic Senator John Kerry (D-MA) on a bipartisan climate bill. Then he went so far as to call supporters of strong climate legislation "bad people" with questionable sanity and morals.

And then there are the fossil fuel industries. They bully with money: oil and gas companiesspent at least $154 million on lobbying in 2009. That doesn't even take into account their political donations.

Intimidation and deep pockets are powerful forces, but I do hope those senators who are standing by on climate -- many of whom intend to ultimately support a bill -- realize that this is an opportunity to take a bold stand, to support strong legislation that represents our best tool for generating 2 million new jobs and making America more secure.

Voters love problem solvers; passing clean energy and climate legislation would give senators a chance to fix our economy, clean up our environment, and strengthen our national security.

For instance, Americans spent a record $450 billion on imported oil in 2008. That's $1,400 for every man, woman, and child in this country sent to places like Saudi Arabia, Venezuela, and Nigeria. Passing a clean energy and climate bill would keep a good chunk of that money invested in America.

These are the kind of solutions Americans will vote for right now.

I hope the senators who have been on the sidelines will step in on behalf of all Americans so the bullies don't have the power anymore. If they continue to sit and do nothing, they will in their own way be as much to blame as the deniers, because both of them are impeding progress. The deniers do it noisily with malice, the bystanders do it quietly and often with good intentions, but both are doing a disservice to our nation.

No one said solving the biggest crisis of our time would be easy, but someone needs to stand up to the bullies. 


Military Commissions Are a Terrorist's Best Bet


On February 2nd, a federal court of appeals decided that an Algerian man convicted of planning to bomb the Los Angeles International Airport on the eve of the millennium deserved a far harsher sentence than he’d received.


Ahmed Ressam, who pleaded guilty to nine counts of criminal activity and then proceeded to provide information about other terrorists to the government, had been sentenced to 22 years in prison plus five years of supervision in exchange for his cooperation. The intelligence he provided led to two terrorist convictions, the identification of Zacarias Moussaoui and key information on disabling Richard Reid's shoe-bomb.


After two years, though, Ressam stopped cooperating and recanted some of his earlier statements. Although the terrorist convictions were upheld (one prisoner’s habeas petition is pending), other cases under investigation had to be dropped, and disappointed prosecutors asked the judge to sentence Ressam to a minimum of 35 years.


The Ninth Circuit Court of Appeals, in a largely-overlooked ruling last week, agreed with the government that Ressam had gotten off too easy. The court sent the case to a different judge for resentencing in light of the federal sentencing guidelines – which provide for 65 years to life.


On the one hand, the Ressam case offers a perfect illustration of how prosecutors use the criminal justice system to obtain critical intelligence from terror suspects that saves lives and leads to more prosecutions. All this without sacrificing long prison terms.

On the other hand, and as Human Rights First has been pointing out for years now, the federal courts are no bed of roses for terrorists. They have convicted many more terrorists than military commissions have. And following the only contested military commission trial since the start of the "war on terror," Osama bin Laden’s driver, who the government claimed was a key player in the global jihadist’s murderous efforts, was sentenced to only five and a half years in prison – just six months more than the time he’d already served.

Back then, the National Review’s Andy McCarthy, the former prosecutor who now argues for military interrogation, trial and detention for all terrorism suspects, wrote a piece titled: “Disgraceful Hamdan Sentence Calls Military Commissions Into Question.”


That was 2008.


Just last week, McCarthy wrote that “Like most Americans, I think it is a terrible idea to give alien enemy combatants civilian trials.” Our usual procedures for handling criminal terrorism cases no longer need to be followed, because now we are at war,he says, so anything goes. Although the same critics making this argument today never pressed that position during the Bush administration, it's now become accepted wisdom among those eager both to discredit the Obama administration and to appear tough on terror that terrorism suspects belong nowhere near the civilian justice system.


It’s an odd position for these critics to take, given the track record of the military commissions. Military commissions have convicted only three terrorists since they were created. Two of them have already been released from prison. The other didn’t even present a defense at his trial.


What's more, in a military commission, conviction on charges like “conspiracy” and “material support for terrorism,” the most common charges against suspects who haven’t personally launched an attack, could be reversed on appeal, since those haven’t traditionally been considered war crimes. Or, as in the Hamdan case, they might just draw a far lighter sentence. Even the administration's own lawyers have expressed doubts about the validity of such charges in military commissions. In federal court, such charges are routine – and frequently the way prosecutors win convictions.


Then there’s the problem that certain killings in war may not constitute war crimes and so could be dismissed or appealed in a military commission. Some international law experts argue that Omar Khadr, for example, the child soldier who’s been charged with murder for throwing a grenade at U.S. soldiers in Afghanistan and whose case is now slated for trial by military commission, may not have committed a war crime even if he did throw the grenade, which resulted in one soldier’s death. That’s because attacking an enemy soldier, even by a civilian, is not traditionally considered a violation of the laws of war.


There’s another reason military commission sentences would probably be lighter than civilian ones: unlike in federal court, the military commissions have no sentencing guidelines. And as McCarthy lamented after the Hamdan trial, it’s the jury of soldiers who weigh the evidence rather than the judge that metes out the sentence in a military trial. They can choose whatever sentence they see fit – including no punishment at all.In civilian court, after the jury determines whether the defendant is guilty, the judge imposes a sentence based largely on strict guidelines governing each and every charge.


Some defense lawyers, therefore, may secretly hope that their clients are tried by military commission. Human rights and civil liberties advocates generally don’t, though, because we believe the military commissions themselves are illegal. International law requires that “unlawful enemy belligerents” be tried in a regularly constituted court – that is, a civilian federal court or the existing military court martial system. That’s part of why we also believe that creating special courts to try terrorism suspects will undermine U.S. credibility and ultimately, threaten U.S. national security.


If the goal were to win a narrower conviction or a lighter sentence for terrorists, though, then it would make sense to favor military commissions. But that probably isn’t what Andy McCarthy or Senators Lindsey Graham and Susan Collins, who’ve introduced legislation to prevent any future civilian trials of terror suspects, are after. But if they win their latest crusade on that point, then an easier ride for convicted terrorists may be exactly what we’ll all get.


Pull the plug on the climate change bill

Few problems require federal action more urgently than global warming. I admire the members of Congress who have been trying to address this issue. House Energy and Commerce Committee Chairman Henry Waxman tried to get the best deal he could. Senator John Kerry has tried to keep things moving in the upper chamber. Senator Lindsey Graham is getting tons of grief from fellow Republicans because he admits that climate change is a problem.

I want to support these people and their efforts to get a bill on the president's desk. Unfortunately, the time has come to accept that Congress is too influenced by corporate interests to deal with climate change in any serious way. Pretending to fight global warming won't solve the problem and may even be counter-productive.

This depressing post continues after the jump.

There's more...


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