07/08/2011 10:02 am ET | Updated Sep 07, 2011

More Political Wrangling Over the National Security State

Senate Republican leader Mitch McConnell and his colleagues are predictably using the Obama Administration's latest successful arrest and indictment of a suspected terrorist to bash the Democratic administration.

Republican lawmakers who insist the government try all these suspects in military rather than civilian courts are dismayed that in the case of Ahmed Abdulkadir Warsame, the government determined, after much deliberation and coordination between the military and FBI, that Warsame should be brought to a legitimate court at all: "The administration has purposefully imported a terrorist into the U.S. and is providing him all the rights of U.S. citizens in court," McConnell announced on Wednesday, having apparently forgotten that the U.S. Constitution guarantees due process of law to everyone in its courts, not just U.S. citizens.. "This ideological rigidity being displayed by the administration is harming the national security of the United States of America."

In fact, it's the rigid approach of lawmakers like McConnell who are insisting on the military disposition of all terrorism suspects that is endangering national security. McConnell's arguments fly in the face of the facts: More than 400 individuals have been convicted on terrorism-related charges in civilian federal courts since September 11, 2001, notwithstanding claims of coercion, entrapment and abuse. Meanwhile, only six have been convicted in military commissions, most via plea bargains and with comparatively lenient sentences. And as Robert Chesney pointed out earlier this week on the Lawfare blog, there are many more solid legal charges that can be brought against Warsame in a civilian federal court than there are in a military commission, where such basic charges as providing "material support" to terrorists or participating in a "conspiracy" to terrorize the United States are still open to legal challenge. Even the gun charges brought against Warsame, armed with strong mandatory minimum penalties in the civilian federal system, don't exist in the military commissions.

Chesney also explains why critics' common refrain that civilian trials will compromise sensitive intelligence falls flat here. If sensitive military intelligence would be compromised anywhere, it would be in the military commissions, where military prosecutors would have to scramble to establish Warsame's connection to militant groups against which the United States is at war to justify bringing him to court there. Prosecutors don't need to do that in a civilian criminal trial, so don't need to even introduce sensitive information that could reveal U.S. military intelligence or CIA sources or methods.

These arguments just add to the repeated findings of widely-respected experts, most recently the former head of the Justice Department's national security division, on the importance of law enforcement and criminal prosecution as a counterterrorism tool.

Still, Senator McConnell, Rep. Howard "Buck" McKeon, Rep. Peter King and others are so eager to look like they're leading the charge in the battle against terrorism that they're insisting on calling in the military in every suspected terrorism case, regardless of the costs to national security - let alone to the nation's bank account.

As I've pointed out before, the approach now pending in the Senate threatens to interrupt critical ongoing FBI terrorism investigations and shift them to the military, where any intelligence obtained could become unusable in a subsequent prosecution. Likewise, the path McConnell and McKeon would have preferred with Warsame would have landed him at Guantanamo Bay, where he would add to the stagnant population of men languishing indefinitely in legal limbo, re-igniting worldwide condemnation of U.S. counterterrorism policies while adding to the arsenal of al Qaeda's recruiting tools.

That doesn't sound like a very wise national security strategy to me.