The Gitmo Rebellion

The title is actually from Nick Baumann’s article at Mother Jones.

On Tuesday morning, Sens. Jim Webb (D-Va.) and Blanche Lincoln (D-Ark.) teamed up with Graham for a press conference to announce a bill that would block funding for Obama’s proposal to try 9/11 co-conspirators, including Khalid Sheikh Mohamed, in civilian courts.

By expressing full support for Graham’s measure, Webb and Lincoln are essentially moving into open revolt against the White House’s detainee policy. Lincoln, who faces a tough reelection fight in Arkansas this year, said she would be foolish if she didn’t listen to her constituents and oppose the 9/11 trials. Webb insisted he was not opposing the trials because they could be held in his home state of Virginia if New York does not prove to be a feasible venue. “I wrote a column on 9/12” calling the conspirators war criminals, he reminded reporters, implying that he has always prefered the detainees to be tried in a military setting.

After the press conference, Graham didn’t refute a suggestion from reporters that he also has the votes of Arkansas’ Mark Pryor and Washington’s Maria Cantwell. Pryor, Cantwell, and all 40 Republicans joined Webb and Lincoln in supporting a similar measure pushed by Graham in early November. The Senate rejected that measure, 55-45. But Graham said he was sure his bill would pass “overwhelmingly” this time around if it ever came up for a vote.

A couple of thoughts on this.  First, as Baumann says, it’s not just a Gitmo rebellion, at least, not in the sense of merely saying something about where a trial will be held – New York, Guantanamo, or anywhere else.  It is, more importantly, a question of whether the trial of KSM and potentially others will be civilian, in the Federal courts, or by military commission.

Second, one of the ironies of having legislators potentially act in these ways is that it means that Congress might at last be getting involved in something that it has wanted to avoid getting involved with for years and years.  A lot of people have pointed out that Congress seems never to want to have to put itself on the line in this national security stuff – Jack Goldsmith, Ben Wittes, Stuart Taylor, me – have all said this one way or another over the years.  Only the President, as Jack pointed out in his book, has the ability to make Congress step up to the plate, but the Bush administration (in one of its deepest failures of institutional process) never wanted to do it and, today, neither does the Obama administration.  So it is somewhat ironic to see at least some members wanting to take over a question of fundamental war on terror policy now.

(I should add, too, that if you read to the end of the Baumann’s article, you’ll see that he doesn’t actually share many views with me; I don’t want to impute any of my views to him.  As regular readers know, among other things, I favor a national security court, as well as an administrative detention arrangement established by Congress but not under military jurisdiction.  And many other equally un-Mother Jonesish things.)

But now, one last thought.  There are a number of attorneys working for the Obama administration, one way or another connected to detainee policy, Guantanamo, interrogations, all this kind of stuff.  Most at DOJ, I suppose, but others at other agencies.  Numbers came from academic positions, or think tanks or advocacy groups – but many with of course very strong views on all the many things they saw as having gone so wrong with Bush administration policy.  And the promise of fixing many things, if not everything.

Policy has not changed all that much, however.  Partly policy has not changed within the administration – at least not big pieces such as Guantanamo closing, the possibility of long term detention of people who will not be charged or tried, etc.  And now at least the possibility of Congress changing even big pieces that the administration did change, such as the venue for the KSM trial.  I wonder whether some of those attorneys will wind up leaving the administration.

If you think about it from their career and personal perspectives, you might think that, well, I’ve been here, done that, gave it my best shot, got whatever resume value there is to having served in the administration, and now … things don’t appear to be on a path to change in these areas all that much.  Don’t I wind up simply hurting myself back in my home space of the academy, or NGOs, etc.?  Hanging around having to defend policies that I don’t like and that it doesn’t appear will change?  Do I really want to be part of a walkback on KSM, for example, if that happened?  Wouldn’t I do better to leave – and then find ways to attack the policies from the outside?  I have no idea, except for a couple of conversations in passing, but they made me wonder.