In Defense of Hand-Wringing

When I wrote my post this morning on the debate over the Shahzad sentence, I hadn't yet read the New York Times's editorial insisting that "Supporters of the tribunals at Guantánamo Bay, Cuba, who insist military justice, not the federal courts, is the best way to deal with terrorists, should pay close attention to Tuesday’s events in a United States District Court in Manhattan." I could poke a lot of holes in this editorial, starting the one Bobby poked: the bald statement that detention without trial at the base is "certainly illegal"--a claim made as fact and endorsed by not a single U.S. court. More broadly, I might point out that it is a grave error to compare the handling of a single captive arrested domestically and against whom one has overpowering evidence to the handling of hundreds of detainees captured abroad against whom the evidence varies enormously. The editorial is a target-rich environment. Rather than pick it apart, however, I want to reflect for a moment on its remarkable conclusion, which reads, "This is the choice: Justice in long-established federal courts that Americans can be proud of and the rest of the world can respect. Or illegal detentions and unending, legally dubious military tribunals. It is an easy one." Life must be nice for people who believe that these choices are easy. As someone who writes under the subheading "Hard National Security Choices," I am obviously not one of them. Indeed, I have often said that all people who regard these issues as hard ultimately have more in common (whatever they think the right answers are) than they do with all people who think them easy (whatever they think the right answers are). Indeed, if yesterday belonged to those who consider the use of the cirminal justice system an easy call, today the shoe is on the other foot--and just as frivolously. As Bobby points out, the government's difficulties in the Ghailani prosecution will no doubt be used to discredit the federal courts as an environment for handling terrorism cases--without any serious discussion of whether the same problems would have arisen in a military commission. Nor, I suspect, will those who insist that the federal courts are the appropriate venue want to acknowledge the importance of Judge Kaplan's consolation prize for the government:

Moreover, it is appropriate to emphasize that [Ghailani's] status as an “enemy combatant” probably would permit his detention as something akin to a prisoner ofwar until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

There's no quicker way to look stupid than to insist that these questions present easy choices. A little while back, Orin Kerr posted a brilliant generic oped on Judge Vaughn Walker's same-sex marriage opinion. Entitled "Follow the Constitution," it was designed to be usable both by those who believe the Constitution requires what Judge Walker did and those who believe it forbids it. It has, on its face, nothing to do with the subjects we write about here--and yet it has everything to do with them. It reads in its entirety:

Judge Walker’s decision on same-sex marriage is a reminder of the proper role of judges in our society. Above all else, judges should follow the Constitution. For that reason, Judge Walker’s decision should be [condemned/celebrated]. Judge Walker showed from the outset of the Prop 8 case that he had one priority: To [subvert/follow] the Rule of Law. His efforts to televise the trial, later overturned by the Supreme Court, show his true intent. Judge Walker wanted to televise the Prop 8 litigation to make sure it would be a [show trial/teaching moment] for the advocates of same-sex marriage. Although the Supreme Court did overturn his decision, Judge Walker pressed on. He never backed down. It is hard to believe that he is a Bush appointee — but this is San Francisco, after all. Now the case heads to the Ninth Circuit Court of Appeals. The Ninth Circuit is a famously [lawless/independent] circuit. The next stop is the Supreme Court, which will probably divide 5–4 in this case. The swing vote is Justice Kennedy. Although his vote is often unpredictable, Justice Kennedy has tended to vote with the Supreme Court’s [activist/moderate] wing in cases related to homosexuality. We hope that Justice Kennedy rejects [liberal elite opinion/bigotry], follows the Constitution, and [upholds/rejects] Prop 8. Public opinion about same-sex marriage is changing. The Supreme Court should recognize this and [step aside/ speed it along]. The choice is clear: It a choice between following the true Constitution and caving in to public pressures and opinion. We urge the Supreme Court to show the courage to follow the Constitution just as the Framers intended.

Orin's point applies with equal force to national security law. How obvious it is that this is all just a matter of [keeping America safe/living our values]! If we only follow the Constitution, then we'll have no doubt that the president [may/may not] target a U.S. national hiding out in Yemen who is obviously [an enemy combatant/a criminal suspect]. We will have no doubt that [military commissions/federal courts] offer the right venue for trying terrorists! Pardon me while I yawn. The rhetoric is tired, and the pervasive sense that the answers are obvious is exhausting. It is a credit to Orin's sunny personality that he seems genuinely amused by the fact that both broad political movements can, with approximately equal fervor, consider it obvious that the same document requires the outcome they prefer on a contested social issue. I find it enervating that nine years after September 11 we not only lack any kind of social agreement regarding the government's powers to confront the enemy but we have mapped the disputes onto preexisting political fault-lines and made slogans out of them. Huge numbers of people, left and right, have--like the New York Times--convinced themselves that there is literally no merit to opposing arguments. A few days ago, one such person--Matthew Yglesias--threw my way what he meant as an insult: "The populist response to post-9/11 civil liberties concerns is, I guess, to just kind of be like 'well, these are the bad guys!' and leave it at that. Ben Wittes, by contrast, produces nuanced and hand-wringy arguments that reach the same conclusion." Nuanced and hand-wringy. I can live with that. I'm not interested in reading anyone on these subjects whose views are not nuanced, and anyone who doesn't wring his hands on them at least a bit just isn't thinking hard enough.