U.S. Attorney General Eric Holder’s address on Monday outlining the administration’s counterterrorism policies accomplished a rare feat: uniting critics on the left and right, who said he broke no new ground.
Actually, his speech was important and useful for two reasons.
First, coming from the nation’s top law-enforcement officer, such a comprehensive overview of the White House policy on the detainment and targeted killing of terrorism suspects will make for a far more productive public and legislative debate on some of the most controversial policies of the post-Sept. 11 era.
Second, it was notable -- and promising -- that Holder, who has long championed the use of civilian courts to try terrorism suspects, adamantly defended the military commission system in place at Guantanamo Bay, Cuba, as a complement to criminal trials.
The much-derided military system has been gradually refined over the last decade, Holder noted, making it a legitimate forum for justice in the age of terrorism. It also seems to work. The latest example was the Feb. 29 guilty plea to five war crimes by Majid Khan, a Pakistani al-Qaeda operative who attended high school in Baltimore.
The tribunals are inherently controversial. There is no jury, and hearsay evidence is allowed, with certain judicious restrictions. But the system is necessary to achieving a broader goal: closing the prison at Guantanamo. Because Congress refuses to allow President Barack Obama the option of bringing suspects held there into the U.S. for civilian trials, military justice is the only way to clear the backlog.
It would be far better, of course, if Congress would relent and allow Guantanamo inmates to be handled by the domestic criminal system, which has proved effective at ensuring justice without sacrificing national security. (The four consecutive life sentences received last month by Umar Farouk Abdulmutallab, who tried to blow up an airliner over Detroit on Christmas Day 2009, should put to rest arguments that the civilian court system is too “soft” for terrorism cases.)
Holder also served notice to Congress on other issues: that the president stands by his waiver, issued when he signed the defense reauthorization act last year, of a law mandating that certain terrorism suspects be given over to military custody; and that lawmakers must quickly move to reauthorize vital aspects of the Foreign Intelligence Surveillance Act, which allows the government to conduct wiretapping abroad.
Though the speech brought clarity to a murky world, it also left exposed a gaping hole in the administration’s counterterrorism policy: the justification for targeted killings. Holder reiterated that such attacks can be undertaken only if there is “imminent threat of violent attack” and that “collateral damage must not be excessive.” How were these criteria applied in the September 2011 drone attack on an American citizen, Anwar al-Awlaki, in Yemen? As we have argued, that killing was legal and justified, but the administration has never made a convincing case that al-Awlaki presented an imminent threat, or that the death of his teenage son in the attack was unavoidable.
Life-and-death issues demand consistency and openness. Holder’s vague and elastic justification won’t do. The administration should quickly release the legal analysis by the Justice Department that provides the basis for its policy on targeted killings. This is the long war. To win it, it must be a legal war -- in appearance as well as fact.
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