Lindsey Graham's Third Strike?

 

Given Senator Lindsey Graham's military background, one would think he would push hard for the trial and conviction of all terrorists. After all, U.S. federal courts have successfully tried more than 195 terroristssince the terrorist attacks of September 11. But for the past five years, Graham has instead repeatedly obstructed the effort to try and convict the 9/11 detainees.

In 2005, the South Carolina Senator helped push through the Detainee Treatment Act, which tried to strip federal courts of jurisdiction over all Guantanamo detainees' legal challenges to their detention. In Hamdan v. Rumsfeld, the Supreme Court ruled that the law could only apply to future detainee claims, not those already filed. It also ruled that the Bush administration's military commissions were unconstitutional.

So Graham helped broker a deal with the White House to pass the Military Commissions Act of 2006, promising that would solve the detainee problem. That law tried once again to deny habeas rights retroactively, and created a new set of Congressionally-authorized military commissions to try suspected terrorists.

Back then, dozens of former military leaders, Judge Advocates General and civilian legal experts objected that the Military Commissions Act of 2006 was a bad idea. Among other things, it would violate Common Article 3 of the Geneva Conventions and the United States Constitution.

With Graham's urging, Congress passed the law anyway.

Since then, the military commissions have convicted exactly three terrorists - one of whom did not even put up a defense. The other two have already been set free.

In June 2008, in Boumediene v. Bush, the Supreme Court ruled that the Military Commissions Act of 2006 was unconstitutional for limiting detainees' access to judicial review; the Supreme Court made clear that Guantanamo detainees have the right to challenge their detention in regular civilian courts.

That sharp rebuke from the Supreme Court has not stopped Lindsey Graham from now attempting a third time to broker yet another deal to deny detainees the right to civilian court review, claiming once again that he can solve the government's Guantanamo detainee dilemma.

Given his track record, does Graham really have any credibility on this issue?

This time, Graham is trying to push through Congress a bill that would deny the government the funding necessary to try the 9/11 defendants in a civilian federal court, and require their trial by military commission.

"I believe it is inappropriate to give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," said Senator Lindsey Graham. "It has never been done in the history of warfare and now is not the time to start."

Actually, foreigners have always been given the same constitutional rights as U.S. citizens in criminal proceedings. And military detainees have always had the right to challenge their detention in civilian courts.

Regardless of whether the law is constitutional, as a matter of national security former military leaders say that Graham's proposal is a very bad idea.

"It's sad and a mistake that we should politicize these decisions and get Congress involved in what is clearly the constitutional responsibility of the president," said Retired Admiral John Hutson at a recent press conference.

Retired General Harry Soyster called on President Obama to stand firm in "administering the great justice system of this country," adding that he should "not give into political pushes that would push us clearly in a wrong path with long-term consequences."

Retired Major General William Nash said pushing the 9/11 trials into military commissions would "give aid to our enemies" and "lessen our reputation with our allies."

Even General Colin Powell opposes the idea: "The suggestion that somehow a military commission is the way to go isn't born out by the history of the military commissions," Powell said recently on CBS's Face the Nation.

Yet Graham is now also making a far more sweeping attempt to undermine suspected terrorists' right to a civilian trial. Senator Graham is reportedly trying to broker a deal with the White House and his Senate colleagues to get them to pass a new law authorizing indefinite detention without trial of terror suspects on U.S. soil. In return, Graham claims, he will deliver Republican support for the closure of the Guantanamo Bay prison camp.

Graham doesn't seem to have much support for his proposal from either side of the aisle, with objections on both legal and practical grounds.

"There is a law already on indefinite detention," Senate Armed Services Chairman Carl Levin, (D-MI), told Congressional Quarterly. "It's called the Geneva Convention."

Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, said "I don't think there's any need for a new statute," adding that it "confuses the issue to suggest that we don't have that authority now."

That hasn't stopped Senator Graham from promising the White House once again something he appears wholly unable to deliver.

The question is whether anyone will fall for it this time around.

Caving on the 9/11 Trial Would Send All the Wrong Messages

The Washington Post reports today that President Obama's advisors are planning to recommend that the administration reverse its decision to try the September 11 suspects in federal court and instead opt for military commissions. That's more than just disappointing, given the overwhelming consensus of military and legal experts that civilian courts are more effective for prosecuting terrorists. If the president were to heed that advice, it would also be astonishingly bad politics.

The Post story doesn't say what President Obama has decided to do, or whether Attorney General Eric Holder, who announced the decision to try Khalid Sheikh Mohammed and his alleged co-conspirators in federal court to much fanfare in November, will go along with those recommendations. But for the administration to reverse itself now on a key legal and strategic decision that critics have made a political hot potato would signal to Obama's opponents that if they just heat up the rhetoric and prey on people's fears enough, the administration will cave. And that would be a sorry signal of how this administration plans to determine critical matters of national security.

Recent reports have suggested that Senator Lindsey Graham has been cutting deals with White House Chief of Staff Rahm Emanuel, not only on the 9/11 trials but on passing legislation to secure the indefinite detention of terrorism suspects in exchange for supporting the administration's efforts to close the prison camp at Guantanamo Bay. To drum up support for his ideas, Graham has been going around denouncing the idea that the United States would "give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," and insisting that military commissions are the "proper venue" for such trials. Graham neglects to mention in such statements that all criminals in the United States have always had constitutional rights in U.S. courts -- these rights are, after all, enshrined in the U.S. Constitution.

And to call military commissions the "proper venue" is to suggest that they have a strong record for convicting terrorists -- which, in fact, they do not. Military commissions have convicted precisely three terrorists so far, two of whom have already been released from prison. By contrast, U.S. federal courts have convicted almost 200 self-described Islamic jihadist terrorists since the terrorist attacks of September 11.

None of that matters, however, when it comes to the politics of fear. Since Attorney General Eric Holder announced the decision to try the 9/11 suspects in federal court, his opponents have turned it into the linchpin of their opposition to the administration. At a demonstration in front of the federal courthouse in New York in December, protesters called Obama and Holder "the real terrorists" and demanded their impeachment.

As I stood in the cold rain watching them, I had to wonder, since when did so many ordinary Americans (admittedly many with tea bags hanging from their star-spangled hats) come to care so much about the procedural complexities of the federal judicial system? Why in the past, when the Bush administration prosecuted hundreds of terrorists in this same Manhattan courthouse, had they never claimed that our judicial system was a "moral disgrace" that would allow terrorists to "spew their hate across America"?

Of course, most of those protesters know very little about the U.S. court system and how much more effective it's been at convicting terrorists and locking them away for life than any military commission has. But some disgruntled Americans, understandably angry and insecure in tough economic times, have been whipped into a frenzy by Obama's most adamant opponents, who've channeled their fears into angry protests about terrorism rather than addressing their real and legitimate concerns.

Perhaps that's to be expected. But for the Obama administration to cave to that hysteria would send all the wrong messages. It would signal a victory for the politics of fear over the longstanding American tradition of respect for the rule of law. It would showcase a triumph of crass political deal-making over rational, fact-based decisionmaking. For President Obama, it would suggest a profound weakness on his part -- a message to his adversaries that if they just make enough of a stink about the decisions they don't like, then they can change them. And most importantly, it would mean that the administration is willing to sacrifice lasting national security to momentary political expedience. And that would be the saddest statement of all.


Caving on the 9/11 Trial Would Send All the Wrong Messages

The Washington Post reports today that President Obama's advisors are planning to recommend that the administration reverse its decision to try the September 11 suspects in federal court and instead opt for military commissions. That's more than just disappointing, given the overwhelming consensus of military and legal experts that civilian courts are more effective for prosecuting terrorists. If the president were to heed that advice, it would also be astonishingly bad politics.

The Post story doesn't say what President Obama has decided to do, or whether Attorney General Eric Holder, who announced the decision to try Khalid Sheikh Mohammed and his alleged co-conspirators in federal court to much fanfare in November, will go along with those recommendations. But for the administration to reverse itself now on a key legal and strategic decision that critics have made a political hot potato would signal to Obama's opponents that if they just heat up the rhetoric and prey on people's fears enough, the administration will cave. And that would be a sorry signal of how this administration plans to determine critical matters of national security.

Recent reports have suggested that Senator Lindsey Graham has been cutting deals with White House Chief of Staff Rahm Emanuel, not only on the 9/11 trials but on passing legislation to secure the indefinite detention of terrorism suspects in exchange for supporting the administration's efforts to close the prison camp at Guantanamo Bay. To drum up support for his ideas, Graham has been going around denouncing the idea that the United States would "give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," and insisting that military commissions are the "proper venue" for such trials. Graham neglects to mention in such statements that all criminals in the United States have always had constitutional rights in U.S. courts -- these rights are, after all, enshrined in the U.S. Constitution.

And to call military commissions the "proper venue" is to suggest that they have a strong record for convicting terrorists -- which, in fact, they do not. Military commissions have convicted precisely three terrorists so far, two of whom have already been released from prison. By contrast, U.S. federal courts have convicted almost 200 self-described Islamic jihadist terrorists since the terrorist attacks of September 11.

None of that matters, however, when it comes to the politics of fear. Since Attorney General Eric Holder announced the decision to try the 9/11 suspects in federal court, his opponents have turned it into the linchpin of their opposition to the administration. At a demonstration in front of the federal courthouse in New York in December, protesters called Obama and Holder "the real terrorists" and demanded their impeachment.

As I stood in the cold rain watching them, I had to wonder, since when did so many ordinary Americans (admittedly many with tea bags hanging from their star-spangled hats) come to care so much about the procedural complexities of the federal judicial system? Why in the past, when the Bush administration prosecuted hundreds of terrorists in this same Manhattan courthouse, had they never claimed that our judicial system was a "moral disgrace" that would allow terrorists to "spew their hate across America"?

Of course, most of those protesters know very little about the U.S. court system and how much more effective it's been at convicting terrorists and locking them away for life than any military commission has. But some disgruntled Americans, understandably angry and insecure in tough economic times, have been whipped into a frenzy by Obama's most adamant opponents, who've channeled their fears into angry protests about terrorism rather than addressing their real and legitimate concerns.

Perhaps that's to be expected. But for the Obama administration to cave to that hysteria would send all the wrong messages. It would signal a victory for the politics of fear over the longstanding American tradition of respect for the rule of law. It would showcase a triumph of crass political deal-making over rational, fact-based decisionmaking. For President Obama, it would suggest a profound weakness on his part -- a message to his adversaries that if they just make enough of a stink about the decisions they don't like, then they can change them. And most importantly, it would mean that the administration is willing to sacrifice lasting national security to momentary political expedience. And that would be the saddest statement of all.


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.

Busting the Practice of Myth Busting

As mounting evidence shows, the practice of busting myths - lining up facts to disprove an opponent's false assertions - just doesn't work.  Most recently, Sharon Begley takes on the practice in Newsweek, exploring why people believe nutty stories about health care reform or supposed controversies about the president's birth certificate.  She reports that, basically, people want to believe what they want to believe and they predisposed to ignoring any facts that clash with those beliefs.  In fact, she finds that we actually go out of our way to find facts that bolster our beliefs.  And most people are not too picky about the source of those facts, which makes the internet an ideal tool for them.

However, it's true that the audiences we want to reach are not usually completely opposed to our arguments and comitted to disagreeing with us regardless of the facts.  Usually, we need to sway the middle, the people who haven't necessarily made up their minds.  Why not line up statistics showing how wrong opposing arguments are for them?  There are a few reasons.  First, even with these groups, facts are not going to be the swaying element of your argument.  If they are leaning toward believing that immigration is generally bad for the country, numbers showing how much immigrants contribute to the economy are not going sway them alone.  It's important, instead, to frame arguments with the basic values that we know our audiences share.  In the case of immigration, fairness is important.  Numbers can then support how, because immigrants pay into a health care system, for instance, it's only fair that they receive the benefits from it.

But with these middle audiences, there is another danger in relying on myth busting, and that's repeating your opponent's argument.  If a series of myth busts say "immigrants do NOT commit more crimes than citizens" or "health care reform does NOT want to kill your grandmother", you have put those arguments back into print once again, with only a measely "not" separating them from your opponents.  Worse, some myth busting sheets repeat the arguments word for word and the refute them.  Research shows that this mainly leaves the bad argument lingering in people's minds, not the counter.  As Shankar Vedantam reports in the Washington Post:

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