"Blind Vengeance and a Thorough Disdain for the Law"

By Benjamin Wittes
Wednesday, November 24, 2010, 9:50 AM

This is how the always-entertaining British journalist, Andy Worthington describes critics of federal court trials, including--it seems--Jack and Bobby and me, which is kind of funny considering that we are not really critics of federal court trials at all. Worthington has written a great deal about Guantanamo over the years, and to give him his due, he did an incredible job of identifying the population at the facility. On certain empirical questions, I have relied on his work extensively and admire it. On normative matters, however, we are as far apart as can be. I regard him as absurdly credulous of the innocence of just about everyone at the base; he comes from the school of thought that believes that any detainee who says he's a sheep farmer or aid worker obviously is exactly that and that it's an affront to the rule of law that American forces might, well, not believe some of them. For his part, he describes me as follows:

Fortunately, for now, few critics have rallied behind a small group of other critics--Benjamin Wittes of the Brookings Institution, Jack Goldsmith, former Assistant Attorney General in the Justice Department’s Office of Legal Counsel, and law professor Robert Chesney--who have taken another troubling unconstitutional line, suggesting that Congress should enact legislation to hold terror suspects indefinitely without even bothering to think about putting them on trial.

However, without decisive action in support of US law and the Constitution on the part of the government, it may be that the idea of avoiding trials altogether for terrorist suspects will gain in strength. In this, Wittes, Goldsmith and Chesney may find that they are encouraged, disturbingly, by the Obama administration itself, which has already endorsed indefinite detention without charge or trial for 48 of the remaining 174 prisoners in Guantánamo, on the advice of the interagency Guantánamo Review Task Force, which was established by President Obama last year to review the cases of the remaining prisoners.

Moreover, in its apparent paralysis regarding trials either in federal court or by Military Commission for 34 prisoners (who were recommended for trial by the Task Force), the Obama administration is close to finding that it has enshrined indefinite detention without charge or trial as official US policy unless it acts immediately to put other Guantánamo prisoners on trial in federal court--starting, I suggest, with Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks, whose federal court trial was announced by Eric Holder almost exactly a year ago.

If senior officials believe in the ability of federal courts to try terrorist suspects, they need to find the courage to say so, to say so boldly and with a courage that has been sadly lacking, and to follow through on their beliefs without caving in to criticism from opponents whose entire point of view is fueled by blind vengeance and a thorough disdain for the law.

A few points in response.

First, it is not quite fair to Bobby to group him in with Jack and me on this matter. His lust for blind vengeance and disdain for the law--though considerable, I'm sure--may not quite be on a par with ours. Specifically, I don't know him to have endorsed the idea of not bringing Guantanamo detainees to trial at all. Indeed, while Bobby certainly supports detention legislation, his work was pivotal in opening up for question the Bush administration's contention that federal courts were a wuss forum compared with military commissions. I don't know what Bobby thinks about whether and when, at this stage, trials are desirable for this group of people, and Worthington should not presume he does either. At any rate, as Woody Allen might put it, I happen to have Bobby Chesney right here, so he can speak for himself on the point.

Second, I won't argue with Worthington about whether my views on detention are "troubling" or not, but there is simply nothing unconstitutional about military detention. To be sure, it could be done in an unconstitutional fashion. But the core premise that some non-criminal detention of war-on-terror suspects is available to the executive is not at this point even constitutionally controversial, let alone in significant doubt. At least, it's not controversial among the justices of the Supreme Court, the Congress of the United States, or the presidency of the United States--whether the presidency is held in Republican or Democratic hands. There are questions, of course, about the permissible legal boundaries of detention, questions that we bat around on Lawfare every day. But it just won't do any more for the Left to dismiss detention per se as a lawless or unconstitutional option. The last time I checked, the Constitution doesn't vest in British journalists the authority to interpret its meaning, and the officials in whom it does vest interpretive power do not share Worthington's view.

Finally, there is an important point of agreement here: I wholly share Worthington's frustration with the administration's paralysis. I will support and defend just about any lawful disposition of these cases. If the administration decides to try people in federal court, I will defend that decision against the inevitable conservative attacks. If it decides to try people in military commissions, I will defend that decision against the inevitable attacks from, among other people, Worthington. If it affirmatively decides not to bring people to trial--the option that I tend to favor--I will defend that against their cries of lawlessness. I have suggested that the administration might thread the needle of federal courts vs. military commissions by using both forums in the September 11 case. And I am open to the creation of alternative trial venues if that will help too. The one approach I think is utterly indefensible is hand-wringing passivity--precisely what the administration has been doing for the last year. It's just terrible leadership; Worthington is correct that it displays weakness to domestic critics, but the more important point is that it displays weakness and uncertainty to the enemy. At some point, and that point was long ago, one needs to make a decision, articulate it, stand by it, and implement it.