Terrorism Trials: Military Commissions

More on that Non-Jaw-Dropping, Non-U-Turn by Bill Lietzau

By Benjamin Wittes
Thursday, August 8, 2013, 2:25 AM

Yesterday, I posted posted this little piece objecting to Daily Mail story's account of its interview with Deputy Assistant Secretary of Defense William Lietzau, in which it describes a "jaw-dropping U-turn" by Lietzau on Guantanamo and detention policy. The piece wasn't mainly about military commissions, but the following passage from Jess Bravin's book, The Terror Courts: Rough Justice at Guantanamo Bay, seems germane insofar as it shows that Lietzau has not just discovered on his way out office a certain suspicion of the architecture set up in 2001 and 2002. In early 2009, Bravin writes, then-White House Counsel:

Greg Craig advised the president to make a clean break with Bush’s legal experiments. As Obama knew, military commissions had been plagued with problems due both to internal mismanagement and to legal uncertainty. Justice Department prosecutors, meanwhile, had won dozens of terrorism convictions since 9/11, regularly sending defendants to life imprisonment without a single intelligence leak. Bush refused to transfer the 9/11 suspects to federal court—and agreed only reluctantly to military commissions—from fear that trial could disclose even more facts regarding his administration’s actions. No such considerations colored Obama’s decision, Craig argued, and by sending KSM and his cohorts to certain conviction in federal court, Obama could rapidly achieve a public victory over terrorism that had eluded Bush. Consign commissions to the list of ideologically driven policy failures that future historians would use to define the Bush era, the White House counsel said.

Craig had support from a particularly authoritative source: Bill Lietzau. The Marine colonel who had designed the commissions apparatus for the Bush Pentagon was now on the National Security Council staff, and he said it was time to pull the plug. In a memo for the White House counsel, Lietzau wrote that nearly a decade after 9/11, whatever ‘‘exigent circumstances’’ may once have justified establishing a parallel system of rough justice for enemy aliens long had passed. Conviction in federal court was the gold standard in criminal justice; not the appellate courts, the legal profession, or the international community would doubt the outcome. In contrast, a military commission conviction would be clouded for years by appeals through the federal court system, which would still have to resolve such basic questions as which, if any, constitutional provisions applied to commissions. The White House political operation, headed by Rahm Emanuel, the chief of staff, saw things differently. Its priorities were domestic policies, such as priming the recessionary economy and launching a health-care overhaul. Detainee matters were becoming a distraction. While John McCain and even Bush himself once had said they wanted Guantanamo closed, almost immediately after Obama took office, Republicans had begun declaring the offshore prison essential to American security. Senator Lindsey Graham remained a rare Republican willing to shut Guantanamo—but he also was a principal advocate for military commissions, which he considered a necessary symbol of America’s war footing against terrorism. Maintaining commissions, at least as an option, was necessary for Graham’s support on Guantanamo and would dilute the Republican effort to paint Obama as soft on terrorism, the White House political shop argued. Moreover, the Pentagon, headed by a Bush holdover, Defense Secretary Robert Gates, was unwilling to surrender its power to try prisoners to the Justice Department. Obama was reluctant to overrule a cabinet officer who contributed so much to his own credibility on national security. With a few reforms, such as an explicit ban on defendants’ statements obtained through cruel, inhuman, or degrading methods, Obama technically could keep his campaign promise to reject the 2006 Military Commissions Act that authorized such evidence while maintaining commissions themselves as a presidential prerogative.