The Washington Post‘s Michael Gerson wrote one of my favorite columns, so it was with sore disappointment that I read his latest screed against the government’s decision to try four of the 9/11 masterminds in a Federal civilian court. Gerson all but calls Attorney General Eric Holder a traitor for the decision, and cannot seem to envision a world where people of good faith at once disagree with him and remain loyal to their country. If Gerson’s half as reasonable as he’s come across in the past, he’ll look back on this column with regret. For much more measured skepticism of Holder’s decision, look no further than Ross Douthat here and here. Meanwhile, two Bush-era Justice Department officials defend the decision here.
There’s one argument of Ross’ in particular worth addressing:
But the decision still doesn’t make any sense to me. Even if the notion of a “War on Terror” is a less-than-perfect conceptual framework for thinking about terrorism, the threat of mass-casualty attacks still requires wartime measures. It requires military operations in far-flung areas of the globe. It requires using intelligence supplied by governments that regularly engage in human-rights violations. It requires pre-emptive action against potential plotters — detentions in some cases, missile strikes in others. It requires long-term imprisonments without trial. It requires bribery, deception, and all the other tools of the intelligence trade. And all of this seems obviously incompatible with the way our criminal justice system is supposed to function.
I understand Ross’ thinking; in fact, I’m sure I agree with him about the demands of rooting out terrorism. Where he loses me is with his awkward pivot from this description of the War on Terror to contrasting civilian trials as “unprincipled”. Wait a tick: these military measures may be necessary, but in what universe are bribery, propping up dictators, and surprise drone strikes — to say nothing of torture — principled in the first place? In fact, doesn’t war by its very nature lend itself to one violation of principle after another, even if the broader cause is just? Even the War on Terror’s biggest cheerleaders ought to acknowledge that the last decade of foreign policy has tarnished the United States, and that its been a conflict driven primarily by necessity, not principle. That doesn’t make it wrong — at a broad level, I believe the mission is just — it just makes it… well, a war. And in war, you apply principle when and where you can, as I believe Holder is doing here, and make the best of a horrific situation. Even if Ross is right, however, and these civilian trials are a violation of some principle, isn’t that just par for the course?
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You are confusing Douhat's use of the word "principled", which incidently (though you quote" does not appear in the excerpt, or even in the entire post excerpted). Douhat says that the two-tiered civilian-military trial system is unprincipled in that they will decide where detainees are tried on a case by case basis, rather than on principle. He is not using the word "unprincipled" in a moral sense, but rather as a synonym for "incoherent." We can see this because he says that the decision to where they will be tried would be based "more on P.R. than principle" and that the decision makes no sense. According to Douhat, the decisions don't *violate* some moral principle (as you seem to think he is saying) but they are not determined by any relevent principle whatsoever, except PR or domestic politics.BTW, I am not attacking the decision to try them civilly (though I have doubts about the administration's motives and definitely would criticize Holder and Obama's statements about KSM). I am a believer in Just War and think that principle can and should drive warmaking policy. And of course, your very appeal to necessity *is* a principle: "do whatever is necessary to protect and defend the people of the United States." That is a principle. It also happens to be one I disagree with. I think Douthat would respond to your final question by saying that the civil trials are wrong because they are motivated neither by necessity nor principle. Doesn't your statement seem to imply that, though it may be necessary to violate principles in war, this should only be done if necessary? And it is not clear why a military trial is impossible, seeing as how the Cole terrorists are going to military trial. These guys also attacked the Pentagon, couldn't that give the military jurisdiction?
I knew this would be right up your alley when I posted it!I do see the logic of either legal option. The Pentagon was a military target, and the military attempted an ultimately futile operation to shoot the final plane down. On the other hand, the vast majority of victims were civilians, three out of the four targets were civilian targets, and the planes used were civilian planes. Plus, as Comey and Goldsmith point out, when high-profile terrorists were caught attempting to attack civilian targets in the past, the Bush administration saw fit to use civilian courts, and they worked well. My biggest objection to military tribunals is that the system is so fraught with problems that with a high-profile case such as this, justice will grind to a halt under the weight of appeals and objections. Meanwhile, I cringe at people who defend the civilian courts on the grounds that it makes the death penalty more credible. I oppose the death penalty anyway, but I think it's especially loggerhead when applied to terrorists who are itching to be martyrs anyway. "Attack us, and one way or the other you'll die at the hands of infidels" is not exactly the message I'd want to reach the mountains of Pakistan. I prefer the Russian approach to Muslim extremists: life imprisonment and, upon natural death, burial in an unmarked grave, upside down, wrapped in unclean pig skin, and facing away from Mecca.
As far as principles go, my point, which perhaps I did not articulate as well as I should have, is duofold: first, that "security at all costs" is objectively not the principle guiding the civilian justice system and, I would argue, not even the one underlying the military justice system (why have trials at all then)? Second, that there are higher American principles that we strive to achieve even in war time. Any soldier will tell you that "no innocent deaths" is a bedrock rule that guides their planning in Afghanistan and Iraq, and it's a good one, even if it's utterly unachievable. A parallel is our legal system, which seeks to balance security and liberty, even for foreigners accused of crimes on our soil (that history looks at disgust on the trial of Sacco and Vanzetti is indicative of our belief in the universality of our principles). War obviously throws a monkey wrench into this, and so we get violations of these higher principles of varying severity: suspension of habeas corpus, the draft, internment camps, and Guantanamo. I believe military tribunals are a violation of these national principles too: Americans would reject the balance between security and liberty inherent to these tribunals if they were applied to civilian justice. Now that doesn't make military tribunals *bad* or even particularly *egregious* violations of principle (even though specific cases have problems, I don't lose sleep over military tribunals categorically). But when the government chooses to try terrorists in civilian courts, that's a *return* to our national principles, not a *subversion* of them.