You Mean It's Easier to Abolish Trials?

Who would have thunk it?

Law professor Jack Goldsmith argues that there are three reasons to offer suspected terrorists a criminal trial: "trials permit punishment, including the death penalty", "trials 'give vent to the outrage' over attacks on civilians", and

The final answer, and the one that largely motivates the Obama administration, is that trials are perceived to be more legitimate than detention, especially among civil libertarians and foreign allies.

And let's not forget, serve as a model of American justice for those in nations whose totalitarian leaders will happily agree with Goldsmith's central thesis, that there's no point in giving a trial to somebody you have no intention of ever releasing, save perhaps for a show trial with a predetermined outcome.

Although he concedes that civilian trials "often do work" and notes that "[h]undreds of terrorism-related cases in federal court" have been successfully prosecuted, Goldsmith dances around the central problem in holding civilian trials for certain key Guantanamo detainees,

But Mr. Ghailani and his fellow detainees at Guantánamo Bay are a different matter. The Ghailani case shows why the administration has been so hesitant to pursue criminal trials for them: the demanding standards of civilian justice make it very hard to convict when the defendant contests the charges and the government must rely on classified information and evidence produced by aggressive interrogations.

The use of classified information has been raised as a specter in many prior terrorist prosecutions, but has not prevented successful prosecution of even one case. Goldman himself has told us in relation to an earlier argument that many years have passed since the time of the offenses being prosecuted; it is difficult to imagine that any legitimate secrets would have to be disclosed at a trial, particularly given the track record of prosecution of similar suspects for similar acts without any such disclosure. So, Goldsmith's euphemism aside, what we're really talking about is the use of coerced confessions, principally information obtained through acts like waterboarding that the Bush Administration's defenders insist "aren't torture (when we do it)".

Goldsmith apparently can't build a general case against trial so he instead focuses on a specific case, that of "Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa". He notes that a federal judge excluded from evidence as fruit of the poisonous tree the testimony of a witness who the government "learned about... through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A." He fails to mention a second problem with the testimony of that witness that was raised by the trial judge, whether the statements elicited from him were also coerced. Even when the judge's concerns were clear, the government chose not to present an affidavit from the witness to challenge the judge's perception.

As a former member of the Bush Administration I can understand why Mr. Goldsmith has chosen to ignore the fundamental problem - the choice by the Bush Administration to behave lawlessly. Bush and Cheney lack the courage to defend their actions, instead playing games of semantics ("It's not torture, it's an 'enhanced interrogation'") or invoking national security ("We can't afford another terrorist attack, so we're entitled to ignore the rule of law - and no, we don't have to disclose or justify our actions to anyone").

I'll admit that I have some difficulty giving the Bush/Cheney regime benefit of the doubt on issues of executive power and privilege, as their across-the-board pattern was to take an expansionist view of executive power and to act aggressively to test the limits of executive power. Also, if the Bush Administration thought its actions were defensible you would think it would have actually offered a defense of them rather than trying to reshape the debate and redefine the language used to describe its actions.

Yet even if we assume that in this specific context they believed that their actions were necessary in the defense of the state, you can't avoid the fact that they and their advisers - a group that would appear to include Goldsmith - knew what the consequences of their actions would be. They chose not to work through Congress or seek judicial review. It was no surprise to me to see Cheney's smug response to candidate Obama's proposal to close the Guantanamo Bay detention camp and try the suspects held there - because he knew that once the Obama Administration looked inside the case files it would find that between genuine state secrets and the use of torture and other questionable tactics (both by us and by regimes that 'assisted' us with detentions and interrogations, or provided information from their own prisoners) the civilian trial of many or most of the remaining Guantanamo detainees would be difficult to impossible. I would expect in many of the cases that even in the context of military tribunals, which Goldsmith assures us "have relatively forgiving evidence rules and aren’t constrained by constitutional trial rules like the right to a jury and to confront witnesses", trial would be difficult - at least, a trial expected to withstand appellate review.

So yes, as Goldsmith says, due to the choices of his former employer it is extremely difficult to try some of the high profile terrorist suspects presently detained by the United States, and as we don't want to pay the price defined by our nation's laws and Constitution for cases in which evidence is obtained unlawfully or where we're not willing to actually present evidence in court, it certainly is easier to detain people, as Goldmith euphemistically puts it, "until the conflict with Al Qaeda ends" - that is, indefinitely. Life in prison without charge or trial. Those who defend the choices of the Bush Administration no doubt happily endorse Goldsmith's description of what this means,

The administration would save money and time, avoid political headaches and better preserve intelligence sources and methods if it simply dropped its attempts to prosecute high-level terrorists and relied exclusively on military detention instead.

But really, if you think through the implications, the only people who should be happy with Goldsmith's preferred outcome are the world's remaining tyrants, despots and dictators.

Prepare to be Chastened

You remember Bruce Anderson from his ethnically sensitive column on Hurricane Katrina (Don't blame Bush - Blame black people!), or perhaps from his "carbon emissions, schmarbon emissions" column about global warming (Yes, The real leader on climate change is Mr Bush ). Watch out, Bush critics - he's coming for you.

It is not difficult to make the case against George Bush.

Ouch.

There have been mistakes.

Mistakes, plural? My how the world has changed following Bush's final press conference... Bush sort of admits to three mistakes,

Clearly putting a "Mission Accomplished" on a aircraft carrier was a mistake. It sent the wrong message. We were trying to say something differently, but nevertheless, it conveyed a different message. Obviously, some of my rhetoric has been a mistake.

* * *

I believe that running the Social Security idea right after the '04 elections was a mistake. I should have argued for immigration reform.

Back to Anderson:

But in their abuse of him, many of his liberal critics demonstrate their own weak hold on reality.

You mean, like crazily being concerned about carbon emissions, or not blaming the Katrina disaster on African Americans? Or what? (Sorry, Bruce - I'm not even sure G.W. is on your side on those points.)

In trying to belittle him, they merely reveal their own littleness.

Yes, yes. Tiny little liberals. We get it.

George Bush is a much more considerable figure than the caricature version.

Er, Bruce, that's not a defense... you're damning him with faint praise.

As he has set great events in motion, it will be impossible to judge his Presidency for many years.

Another presentation of the "You can't judge Bush by his decisions, but must wait a few decades or generations to see what comes next. If you parked a feces flinging monkey in front of a fan, Anderson would likely assure us that "You have to wait to see if a verdant tomorrow grows out of the monkey's newly fertilized surroundings." Had Bush initiated a nuclear war, Anderson would probably be telling us that we have to wait and see if the benefits of reduced world population and possible beneficial mutations of the human genome lead future generations to regard him as a great man. Or, as Anderson so aptly puts it,

It is not impossible that history will offer a partial vindication.

Partial vindication is not impossible? Does praise get any fainter than that?

Okay, that was Anderson's first paragraph and there's a lot more... of similar quality. Read it and weep, you tiny little liberals. Anderson continues to make sweeping, unsubstantiated statements (e.g., "Although some of George Bush junior's speeches will rank high in the annals of political oratory, once he was without a text, he often went adrift." - er, which speeches?), and presents a second-hand depiction of Bush's astonishing leadership behind closed doors that's worthy of a SNL skit. For eight years we've been told that Bush is brilliant, witty, smart and commanding, until a camera lens hits him at which time his brain seems to turn to mush. Maybe there's some hidden camera footage? An audio recording? Because as much as I want to give Bush the benefit of the doubt, you would think by now we wouldn't have to take people like Anderson's apocryphal friend at their (purported) word.

Typical of Bush's defenders, Anderson wants to reinvent the Iraq war.

After 11 September, the US Administration asked itself one repeated and agonised question. Why do these people hate us? The Bush team came up with their answer: because they live in failed states, which offer their young no hope in this world and thus leave them open to the temptations of fanaticism and a better deal in another world.

Well, not quite. What Bush actually said was,

They hate what we see right here in this chamber - a democratically elected government. Their leaders are self-appointed. They hate our freedoms - our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other.

That's not quite the same thing, is it.... Anderson apparently didn't convince even himself, as he carries on about Hussein's desire for WMD's and suggests that choosing not to invade Iraq and topple Hussein would have been tantamount to waiting "until the certainty of a mushroom cloud".

It seemed that all the routes to progress in the Middle East and safety in the West led to Iraq.

Talk about your hyperbole.... But "seemed"? His defense of the entire Iraq debacle is "Appearances were deceiving"?

But in moving forward with the war, "There was one problem." Just one, mind you. Wanna guess? I'll give you three tries.

Largely because of the malign influence of that fraud and tautology, international law, we have grown squeamish about regime change.

I bet that was at the top of your list. I mean, think of all the leaders who weren't toppled due to American squeamishness about regime change and fear of international law. Manuel Noriega, Bernard Coard, Slobodan Milosevic, Lt. Gen. Raoul Cedras... all happily ruling their countries. Squeamishness like that almost assuredly was why the U.S. would never have backed a coup attempt in Venezuela before not invading Iraq.

As a result, the overwhelming desirability of regime change in Iraq had to be downplayed, and there was a further difficulty: the most unfortunate un-meeting of minds in recent public policy. After 2001, in both Washington and London, there was a split between those who knew Iraq, who were generally hostile to the War, and those who wanted war but usually knew nothing about Iraq.

Oh, this is too good. Here's Bush, downplaying regime change in a joint press conference with Blair, April 6, 2002:

THE PRESIDENT: Maybe I should be a little less direct and be a little more nuanced, and say we support regime change.

Q That's a change though, isn't it, a change in policy?

THE PRESIDENT: No, it's really not. Regime change was the policy of my predecessor, as well.

Q And your father?

THE PRESIDENT: You know, I can't remember that far back. (Laughter.) It's certainly the policy of my administration. I think regime change sounds a lot more civil, doesn't it? The world would be better off without him. Let me put it that way, though. And so will the future.

Talk about nuance. But what about Anderson's concern about the split of opinion on the Iraq invasion between, shall we say, those who knew what they were talking about and those who didn't?

George Bush had little confidence in his Secretary of State, Colin Powell. Unable to sack Mr Powell, he made up for it by not listening to the State Department. Tony Blair never took much notice of his foreign secretaries.

As a result, the Arabists' expertise was disregarded and ... the direction of events was left to the neo-conservatives, most of whom were dangerous idealists who believed that democracy was an infallible political antibiotic.

But enough about Fred Hiatt. No, in fairness to Hiatt, he at least recognized Bush's "commitment" to democratization for what it was. If the people Bush in fact allowed to lead him around by their nose were even half as informed as Hiatt, Anderson's account would fall apart. What's amazing to me is that Anderson's trying to defend Bush by arguing that Bush had a choice between going with knowledgeable experts and Colin Powell, and people who knew absolutely nothing about anything - and that Bush made the wrong choice. Anderson elaborates that, if Iraq hadn't been such an unmitigated disaster in the hands of the incompetents picked by Bush, "George Bush's ratings would be much higher". Well, yeah, but in that universe we might be talking about how Bush's record of good decision-making justifies calling him a good President, rather than how once the dust settles and future Presidents and people put Humpty Dumpty back together, it's "not impossible that history will offer a partial vindication".

The funny thing is, having just said that, Anderson tells us:

There was one unfortunate side effect of the war on terror: Guantanamo.

I guess Anderson sees the rest of the side-effects, including two years of chaos and lost opportunity in Iraq, the idiotic disbanding of the Iraqi military, loss of world respect, loss of respect as the world's preeminent military power, as fortunate side effects?

At the time, it seemed a good idea: a cunning means of preventing American lawyers from undermining America's security. But the US prides itself on being a nation founded upon laws. It follows that a legal vacuum is only tolerable for a brief period.

So it seemed like a good idea to ignore U.S. law and values, create a legal black hole where you could drop prisoners, many of whom were picked up by mistake, deny them due process, charges, access to lawyers, trial, smear anybody who tried to assert that we would be better off respecting our historic values and providing an example for the world of fairness and justice (the type of American values somebody like Anderson sees as "undermining America's security"), and engaging in treatment of some prisoners so atrocious that, despite their crimes, we may have virtually no evidence that we can use against them in court in anything resembling a fair trial. By now even Anderson's ready to bring the Guantanamo prisoners back into the light, but he adds,

That said, anyone who denies that there are some exceedingly dangerous men in Guantanamo should be forced to live among them.

No, in fact, it's the people who flouted American law, and people like Anderson who cheered them on, who should be forced to live among those we are unable to convict due to the Bush Administration's use of torture and contempt for the law.

Funny how only a couple of years ago Anderson saw Bush's Katrina failure as relevant to his legacy, but now... nary a mention. But there's a consistency with his prior piece - then, as now, every failure that occurs on Bush's watch is the fault of something that came before his Presidency:

The decisions which doomed New Orleans were taken years before he became President, including the one to build the city in the first place.

Yes, I'm sure that there were many times in the wee hours of the morning when Bush woke up screaming, "Darn you, French Mississippi Company! Darn you, Jean-Baptiste Le Moyne de Bienville! How could you do this to Brownie and me!" How could Bush possibly have foreseen a disaster that was a mere 287 years in the making. In fact, it's unfair to expect that Bush would have foreseen any disaster. Really:

On the economy, and like Gordon Brown, George Bush could be accused of failing to fix the roof while the sun was shining. But two years' ago, it all seemed to be working. ... George Bush did not foresee the crisis. Who did?

A lot of people saw disaster coming, actually. Sure, they were largely marginalized by the media, save most notably for Paul Krugman who hollered loud, clear warnings from the editorial page of the New York Times. If all of that flew below Bush's radar, it can fairly be said that as with Iraq, a large part of the fault lies with his natural tendency to surround himself with incompetents who tell him what he wants to hear, while marginalizing and ignoring anybody who knows anything about anything.

So there you go, Bush critics. Don't you feel small?