would be "unwise, and would set a dangerous precedent." And the Department of Justice recently issued a statement to the same effect, claiming "There is no precedent in the history of our Nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes." Given that there have been over 300 successful prosecutions of terrorist suspects in federal criminal courts, compared with only 3 successdul prosecutions by military commission, it seems fair to ask: what is there to fear about fair trials?
The issue here is clearly not about which prosecutorial form (federal court trials or military commissions) are more "effective," as the NYU School of Law's "Terrorist Trial Report Card" shows. The federal court system has been eminently effective both in intelligence collection and incapicitating terrorists, while the legality of military tribunals have been challenged all the way to the Supreme Courth three times already. That is to say, if the only concern here were simply whether or not "justice" would be done-- in the sense of punishment meted out to demonstrably guilty parties-- we would have to side with the federal court system. Unfortunately, I fear that the accomplishment of "justice" is not what is primarily at stake in these debates.
Last month, I attended a lecture by Karl Rove (which I wrote about in my post "Rove at Rhodes") in which he presented what I consider a representative argument of the opponents of fair trials for terrorism suspects. Rove claimed that the Obama administration's error is their tendency to "treat terrorism as a crime and not a war." I'm not sure I realized it at the time, but I have come to believe since that Rove's characterization is far more telling that he (or I) may have realized. What is really at issue in this debate over whether we should turn over terrorist suspects to the Department of Justice or to the Department of Defense is precisely a question about how we intend to frame what sort of infraction "terrorism" is. Is a terrorist act a "crime"? Or is it a "declaration of war"? Is it a violation of a law (or, more broadly, the rule of law) or is it a violation of sovereignty?
My philosophical inclination is to say that it is something between the two. Clearly, all terrorist acts violate some law and, inasmuch as they have the superadded political element of being characterized as "terrorist," they do so in a way that is intended to disrupt and disavow the very rule of law that proscribes them. But it is precisely that superadded characterization that makes terrorist acts also a violation of State sovereignty, even a violation of the idea of State sovreignty, of the principle of a State governed by the rule of law. So, technically speaking, terrorist acts are "crimes," but they are also a peculiar sort of "declaration of war"... something like a "declaration of war against the rule of law." My guess is that it is this latter offense that so troubles people like Rove, who see terrorism as a threat to the integrity and security of a recognized State and, consequently, the proper business of the Department of Defense. The problem is, of course, that the State the Defense Department is charged with defending is a State governed by the rule of law. If the mechanisms and strategies of its defense are themselves abrogations of the rule of law, as they arguably are in military tribunals, then I fear we run the risk of robbing Peter to pay Paul.
I would argue that there is a both a principled and a strategic reason to insist that "terrorism" be treated as a crime and not a war, despite the fact that it may be both. On principle, affording terrorist suspects all of the rights and privileges of the judicial process reaffirms our commitment to the very rule of law that their acts terrorize and which put us at such grave risk. Inasmuch as we are able to execute fair and impartial trials for these suspects, we can make good-faith judgments about the impermissability of terrorism as form of political action without worrying that we may have terrorized our own legal system in the course of those judgments. Strategically, advocating trials over military commissions is a way of delegitimizing the claims of those who too quickly subordinate the principle of the rule of law to national security... forgetting that, without the rule of law, the Nation they are claiming to secure disappears. If we accept Rove's claim that terrorism should be treated as a war and not a crime, we will inevitably find ourselves at war with ourselves, and we will have abandoned any appeal to impartial principles that might adjudicate our internal disputes.
In short, we need terrorism to be a "crime," even more than alleged terrorist suspects need it to be, because we need this issue to be about justice and not war. War does not decide matters of justice. I am reminded of La Fontaine's fable "The Wolf and the Lamb," a kind of cautionary tale about the dangers of conflating might and right. In the fable, the wolf engages the lamb in a charade of a trial, in which every defense the lamb presents for its existence is futile. It is clear that the proceedings are a fait accompli, and that the lamb will be devoured by its predator "without any other why or wherefore." But it is in the "why or wherefore" that we determine matters of justice, and it is there that we place our confidence that, in the end, our judgments are not merely brute exercises of power.