Last week, Spencer Ackerman noted that Jeff Sessions has joined John McCain and Joe Lieberman in arguing for a system in which the executive branch can forever imprison anyone without trial, including U.S. citizens, on mere suspicion of terrorism. But as the courts have consistently ruled that detainees have the right to counsel and the right to challenge their detention, such a law wouldn't pass constitutional muster. Republicans are increasingly adamant in using military commissions for all terrorism cases involving foreign nationals, an absurd restriction on the executive branch that they wouldn't have imagined proposing with a Republican in the White House. This all makes me question whether some Republicans actually want to see any terrorism prosecutions while Obama is in office.
The case for military commissions is almost nonexistent: Their system for protecting classified information resembles that of federal courts; their sentences are often lenient; there aren't clear guidelines for proceedings; and they're seen as illegitimate internationally, making extradition of terrorist suspects less likely. They do give the government an advantage in securing a conviction, but that's not a "positive" -- that's unfair. Most important, they are vulnerable to constitutional challenge from civil-liberties groups, which would stall them indefinitely, as I've reported.
Sessions' behavior is consistent with a Republican Party interested in gumming up the works so that as few terrorists are brought to justice as possible, particularly the alleged September 11 perpetrators. Indeed, many Republicans would be just as happy if these people were never brought to trial: Any procedure, military or civilian, is a mere formality to them, since anyone accused of terrorism is automatically "the enemy." Just as with health care, preventing action tarnishes the perception that the administration is run competently and capable of keeping Americans safe.
And now, this strategy has the satisfying appeal of payback. Republicans have complained that Attorney General Eric Holder didn't put underwear bomber Umar Abdulmutallab in military custody, something that would have prevented the U.S. from being able to gather important intelligence. Had Holder done so, he would have set up another constitutional showdown with civil-liberties groups over the government's authority to do so, as I explained last week. This would have stalled Abdulmutallab's prosecution indefinitely, unless the administration moved him out of military custody and back into the criminal-justice system, as Bush did with Jose Padilla and Obama did with Ali Saleh al-Marri. The presidents did so because they thought that they would lose if the case went before the Supreme Court.
The GOP gets to sic the civil libertarians who destroyed the Bush administration in one Supreme Court case after another on the new Democratic administration. For them, turnabout is fair play -- Republicans blame the Bush administration's failed attempts to deny due process to detainees on the lawyers who challenged the administration, not on the administration for denying due process in the first place.
It's the same strategy to make sure government doesn't work ... all so you can later complain about how government doesn't work -- this time applied to national security instead of health care.
-- A. Serwer
