Military Justice

On War and Crime

By Wells Bennett
Saturday, January 10, 2015, 12:00 PM

Yesterday at Lawfare, Bryan Cunningham sought to breathe new life into the “military versus law enforcement” debate over terrorism, along the way deeming the horrific assaults in Paris to be “consequences” of France’s police-centric strategy. He thus finds fault with the current counterterrorism regime generally, and invites others to join in a broader discussion about how to improve things. Allow me to take him up on that---chiefly by registering strong disagreement with his account.

Cunningham first says the Bush Administration pursued a “War on Terror,” viewing terrorism as solely a military problem. Contrast this with the Obama Administration, which, Cunningham says, was shocked by its predecessor’s overreach and eventually “returned to a largely law enforcement approach … with notable exceptions such as drone strikes and recent military actions against ISIS.”  This is a familiar framing, but it lacks nuance---to the point of being incorrect.

Some of the Bush Administration’s more objectionable policies undoubtedly had a strong military dimension. (The awful military commissions established on the President’s authority come to mind.) And a few Bush hardliners and right-wing members of Congress also couched the White House’s thinking in unfortunate, needlessly bellicose terms: the Commander in Chief power always trumps congressional power; affording Miranda rights in terrorism cases is not merely fanciful but anathema to intelligence gathering; civilian terrorism trials spill secrets and tip off the enemy; and so on.

And yet for all the rhetoric, the facts were more subtle. John Walker Lindh, Zacarias Moussaoui, Richard Reid and many others were prosecuted and convicted in federal courts during the Bush years, and in proceedings conferring the sorts of rights that seem to worry Cunningham---robust access to counsel, Miranda and the like. And for the remainder of the Bush presidency onward, the civilian courts would vastly outperform the mostly self-defeating commissions, a trend that continued and was vividly displayed yesterday: the Southern District of New York sentenced Abu Hamza to life, while the Guantanamo Convening Authority quietly invalidated Noor Uthman’s conviction for the non-war crime of material support. 

As for the Obama Administration, Cunningham says it “largely” disavowed the war paradigm in favor of a return to the criminal justice paradigm---while also carrying forward with the war framework in discrete areas. That’s an understatement. I should here stress that, unlike some, I do not perceive perfect continuity between the two Presidents’ policies; in places, President Obama has enacted reforms that are very real, consequential and highly salutary. Still, I don’t think anybody denies the fact of at least some overlap, and Cunningham sees just a little---mentioning drone strikes and the campaign against ISIS and alluding to other things. I would fill out this list with bulk surveillance, law of war detention, military tribunals, pushing the boundaries of congressional force authorizations, and muscular deployment of special operators abroad. The point is that Presidents Bush and Obama both made use of law enforcement, intelligence and military tools, while casting their policy choices in different language. We can quibble about the extent to which this White House favored one tool more, relative to the other, or about which White House's overall approach was better or worse. But the well-worn “Bush = war, Obama = law enforcement” canard is, well, a canard.

Then there’s Cunningham’s depiction of the Paris attacks. Here he does a double whammy on the French, first by ascribing the initial assault to a lamentable French over-reliance on criminal procedure; and then by suggesting a complete volte face, which was evident in the more heavy-handed way French officials addressed two showdowns with the hostage takers. “The French,” he writes, “seem to have learned this lesson, at least for today. The deadly operations this morning did not utilize subpoenas or indictments but weapons and tactics.” So: lax criminal mechanisms proved deadly, so much so that authorities in France immediately and quite appropriately turned to more aggressive---more militaristic---stuff.

Exactly why is the “law enforcement” approach to blame for the initial attack? Is the idea that some convicted terrorists may complete their sentences and then commit hideous crimes---as Cherif Kouachi evidently did, with help from his brother and others?  If so, then simply adding wartime authorities to the mix---administrative detention or a military trial---won’t necessarily spell the end of hellish rampages like that visited upon Charlie Hebdo. Like their civilian counterparts, military commission defendants serve their sentences and then walk free; the same holds true of law of war detainees. Indeed, Presidents Bush and Obama both shipped many such people out of detention facilities in Iraq, Afghanistan and Guantanamo, and a few (Al-Baghdadi, for one) took up arms afterwards.

And that’s just the thing: Unless you are willing to devise a staggeringly illiberal criminal or non-criminal detention regime---and nobody should be---then the recidivism rate will always be greater than zero. Perhaps there’s a conversation to be had about sentencing patterns, or how best to keep tabs on ex-defendants and repatriated detainees, while at once keeping faith with civil liberties. But these strike me as different than Cunningham’s threshold complaint---that until quite recently, the French had leaned too much on their inept criminal system, which recklessly returned a dangerous terrorist to the streets.

At any rate, it is hardly clear to me that---as Cunningham suggests---simply because the French counterpunch boasted some military features, it also necessarily forswore all the trappings of conventional law enforcement. (Contrary to Cunningham's suggestion, I have never heard of any left leaning lawyer---or anyone really---who thinks that hostage crises like those we saw in Paris can be resolved with “subpoenas or indictments” alone.) Certainly that’s not how things work stateside. Our police and the FBI both have cadres of paramilitary personnel, whose deployment to hostage situations doesn’t typically imply martial law or the full unleashing of the dogs of war. And for AUMF-covered folk caught during the Obama years, apprehension by the military often precedes a swift transfer to trial in civilian court. As for this awful tragedy, I think it too early to draw any firm conclusions, policy-wise. But in the meantime, I see no evidence that French officialdom presumptively had taken prosecution off the table, in the event of a successful capture by GIGN. For all we know, “subpoenas and indictments” might have done nicely afterwards, had the terrorists been taken alive.  The U.S. experience certainly suggests as much.