GOP plays politics with terrorism

Republican push to hand off prosecutions to the Pentagon addresses a problem that doesn't exist

November 13, 2011|By Richard A. Clarke

In the wake of Sept. 11, there were many over-reactions. As a result of some of them, our hard-won constitutional rights were eroded. There were also attempts to gain partisan political advantage by claiming to be tougher on terror than the other guy. Unfortunately, some of that kind of dangerous over-reaction and game playing is still happening. A phony problem has been manufactured, and the solution created to solve it would damage all of our rights and undermine our legal system. Specifically, Congress is considering taking terrorist-related prosecutions out of the legal system and handing them off to the Pentagon.

The Pentagon leadership, civilian and military alike, does not want to be given the roles now performed by the Federal Bureau of Investigation, the federal courts and the Bureau of Prisons. Nor do the attorney general or FBI director want to be forced to divest themselves of their duties to deal with terrorists who have been arrested.

The phony problem this proposed law is meant to address is the alleged inability of the criminal justice system to deal with terrorism. The truth is that the U.S. criminal justice system dealt very well with terrorism before Sept. 11 and is doing so again now. Terrorists have been regularly arrested by the FBI, prosecuted in federal courts, found guilty by juries and jailed in federal prisons. The list of such cases goes on for pages. The trials have happened all across the country. The system works.

There was, however, a period when there were problems. Those problems were not due to the inadequacy of the U.S. legal system but were caused by the Bush administration's failure to use it. The most glaring individual case was that of Jose Padilla, an American citizen arrested in Chicago for terrorist activity. The Bush administration had the Pentagon declare him an enemy combatant, lock him up in a military prison and deny him his rights as a citizen. Now, some in Congress want to make that the standard. Under the proposed law, any American citizen could be labeled a terrorist and thrown into a military system for an indefinite period. The serious danger in that is that if you can take away one citizen's rights, then you can take away any citizen's rights, including yours.

One would hope that a law requiring people arrested in this country to be denied their constitutional rights would have little chance of passage in the Congress, but this attack on our legal system has been embedded in the annual bill that funds the Pentagon. That sets up the possibility that the president may have to veto a bill paying for the military in order to protect the Constitution. The proponents of the assault on our rights will label any presidential veto as a demonstration that Mr. Obama is "soft on terrorists" and "not paying our troops." It is that precise outcome that some cynical members of Congress are seeking. They have spun a problem that does not exist, they have created a solution they know a responsible president will oppose, and when he does they will use that opposition to their partisan advantage.

There was a time in Washington when that kind of blatant, disreputable, and scurrilous activity would be seen for what it was and rejected by the leaders of both parties in Congress. There is still an opportunity for congressional leaders to demonstrate their statesmanship by stripping off this assault on the Constitution before the Pentagon bill is passed. Or they can just continue to wave the bloody shirt, try to fool some of the people, and continue to play politics with terrorism, confident in the belief that Barack Obama will do the right thing and veto this law so that no real damage to the Constitution is done. Perhaps, in this time when 60 votes are needed to pass laws, at least a few senators will filibuster this law and stand up for the Constitution. There are serious choices senators will have to make, and how senators make them is something we should all remember next year — when we get to choose.

Richard A. Clarke, the national coordinator for security and counterterrorism under presidents Bill Clinton and George W. Bush, is the author of "Against All Enemies" and "Your Government Failed You." His email is

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