The right is again aflutter about the Obama administration’s approach to the war on terror. The occasion this time is the decision by the administration to prosecute an alleged terrorist in federal court. We are told Ahmed Warsame provided material support to bad people, including Al Qaeda in the Arabian Peninsula. Amid conservatives’ angry squawking, it is useful to take a step back and reflect on the case and how it fits into our current national debate about justice for alleged enemy combatants. And, upon that reflection, we should wonder more about the silence of the left than the ranting of the right.
Here is what we know: A person has allegedly violated United States law, and he was arrested overseas. Not so long ago, we all knew what this meant. He would be brought to the United States and prosecuted in federal court. Counsel appointed on his behalf would raise a host of pre-trial issues, including a challenge to the admissibility of any statements he may have made. The case would proceed to trial, and a jury would find him guilty. The judge would then sentence him to a lengthy term in prison.
We would have been shocked at the suggestion that this fellow should be tried in a military court or held without trial. After all, we followed the usual course in federal court during the prosecution of the Al Qaeda members who conspired to bomb the U.S. embassies in Kenya and Tanzania in 1998, all of whom are now in federal maximum-security prison. In fact, we have followed precisely this course for many years in many hundreds of cases. Why on earth would we do anything else?
Yet today, in the post-September 11, Guantánamo Bay era, many on the right have become apoplectic at the very thought of a civilian prosecution for alleged terrorists, including Warsame. “The administration has purposefully imported a terrorist into the U.S. and is providing him all the rights of U.S. citizens in court,” Republican Senator Mitch McConnell said. “This ideological rigidity being displayed by the administration is harming the national security of the United States of America.” Buck McKeon, Chairman of the House Armed Services Committee, called it “unacceptable” that the administration would deliberately ignore “the perils of bringing terrorists onto U.S. soil.” This is gibberish, of course, and deserves all the scorn we can heap upon it; by now, all but the willfully ignorant know how successful federal prosecutors have been at convicting terrorists.
The right has also advanced the suggestion that military detention is permitted by either the laws of war or the Congressional Authorization for the Use of Military Force (AUMF), passed shortly after September 11. But it seems silly to suppose the AUMF and the laws of war are anything other than legal fig leaves in the current controversy. They may or may not allow the result sought by the right, but they do not compel it. And besides, the question is not whether the administration may send Warsame to Guantánamo or prosecute him before a military commission, but whether it should. The answer to that question is “no.” When a person commits a crime, he should be prosecuted the best way we know how. Questions like this used to be easy.
If there were nothing else to this matter, we would be well-advised to ignore the right, turn our attention elsewhere, and move on. But this situation is more complicated. At the same time we learned of the case, we learned that the U.S. government arrested Warsame in mid-April and held him aboard a floating prison for several months prior to his indictment, during which time he was repeatedly interrogated. The Red Cross did not have access to him for the first two months, while he was evidently held incommunicado.
Just as we could have guessed the right would erupt over the decision to try Warsame in federal court, so we should have expected the left to protest his shipboard detention. Yet the left seems oddly untroubled. Editorial boards at both The Washington Post and The New York Times, for instance, are curiously silent. Apparently, the left prefers this state of affairs to the alternative now being pressed by the right. At least he’s not being sent to Guantánamo or a military tribunal, the argument goes.
I am less convinced. Not so long ago, just as we would have been shocked at the thought of indefinite detention or trial by military commission, we would have been scandalized at the idea that a defendant could be interrogated for nearly three months before being indicted and brought to court. The former avoids a real trial altogether, while the latter makes the trial a sham. Both are illegal, and it is not evident to me which is worse. And the fact that so many on the left apparently accept this state of play as merely the best of a bad situation strikes me as evidence of just how far we have fallen.
To be sure, several things may account for Warsame’s extended detention at sea. Perhaps, as the administration has said, it took a while to decide what to do with him. It seems improbable, however, that this decision would have required two and a half months. More likely, his detention at sea allowed the United States to continue his interrogation and thereby gather additional intelligence. There is some support for this explanation. The New York Times, for instance, says that Warsame’s capture was important “because he had provided large amounts of intelligence about the groups and ties between them,” and Peter King, Republican Chairman of the House Committee on Homeland Security, said Warsame’s interrogation led to “[v]aluable intelligence … that will continue to assist in the protection of American citizens here at home.”
But there may have been another purpose behind Warsame’s incommunicado detention: an opportunity to make the case against him air-tight and thus avoid any risk of an adverse outcome. The Obama administration, knowing it would incur the wrath of the fulminating right by bringing Warsame back for a civilian trial, may have wanted to make sure the case was bulletproof before exposing it to hostile testing. So it may have gathered information to use in the trial before alerting the public that there would be a trial at all.
If there is anything left of the law, this is where we must draw the line. The United States government must not use any information it might have learned—directly or indirectly—as a result of Warsame’s shipboard detention during his prosecution. This would not excuse the wrong of prolonged incommunicado detention nor reset the clock to an age when such behavior would have been unthinkable. But it would at least protect his trial from becoming a pre-ordained afterthought. Anything else would be an excellent demonstration of how we destroy the law in order to preserve it.
Joseph Margulies is a clinical professor of law at Northwestern University School of Law and associate director of the Roderick MacArthur Justice Center. He is the author of Guantánamo and the Abuse of Presidential Power and is writing a new book, Like a Single Mind, on the changes in American thought produced by September 11.