Monthly Archives: January 2010

Military Tribunal or Civilian Courts for Terrorists?

By Marc Seltzer; originally published on January 6, 2009, at

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The recent decision to treat the perpetrator of the December 25, 2008, terrorist attack on a commercial airline flight as a criminal defendant, rather than as an enemy combatant, again raises questions about the use of civilian courts for terrorists.

A foreign national enemy soldier in U.S. federal court, will not, in fact, receive all the constitutional rights of U.S. citizens.  Still they will receive more substantial legal protections than likely to be provided in a military tribunal.  Why then provide all the rights and process of U.S. civilian courts, rather than simply relying on military courts and justice?

The answer relates more to the failure of the Bush administration to effectively establish and use military tribunals than to the appropriateness of federal court for terrorists.  The Bush administration created secret prisons and harsh interrogation techniques but no workable process for judging enemy prisoners.  Under the circumstances, Republican criticism of the Obama administration decision to prosecute Abdulmutallab in civilian court is hypocritical.

This case is different in key ways from the case of the five Guantánamo detainees, who will be tried in federal court.  For example, the government will seek the death penalty for the five Guantánamo detainees.  After the damage to the government’s reputation because of treatment of prisoners at Abu Ghraib, and questions about interrogation and legal authority for detention without trial at Guantánamo, the execution of these detainees without a traditional civilian trial would have aroused international outrage and significant domestic criticism.

However, the December 25th attempt to destroy a plane as it descended towards Detroit failed, and no injuries resulted.  Thus, the government will likely seek incarceration, not the death penalty.  Moreover, Defendant Abdulmutallab has not been interrogated using enhanced techniques and his detention will be at the hands of the Obama administration, which has disallowed torture.  Therefore, there is not the same need to demonstrate the legitimacy of the process as there was with the Gauntanamo detainees.

The Bush administration proposed to deal with detainees outside of the civilian legal process, but parts of its plans were rejected by Congress and the courts.   After scandals at Abu Ghraib and questions about the administration’s treatment of prisoners and judgment in reviewing detainee cases without judicial oversight, the Bush administration lost some credibility in its role as authority over detainees.  This also cost the executive branch authority to use what should have been an ordinary process in time of war, the military tribunal.

The Obama administration has asserted that it will use tribunals in some cases.  For example, where evidence against a detainee is not sufficient to achieve a conviction in a civilian court, the administration will still seek to incarcerate people it believes are a threat, using a military tribunal.  Similarly, if a large number of foreign soldiers needed to be tried, it would overwhelm a civilian court, but be easily accommodated in the more flexible rules of a tribunal.

It makes no sense to try every enemy soldier in a civilian court. But the Obama administration will have to pick up where the Bush administration failed.  It will have to demonstrate to Congress and the courts that it can conduct military tribunals with the right mix of prosecutorial judgment and judicial process.

For now, the December 25, bomb attempt left an obvious trail of evidence and only one defendant.  This is an easy case for a federal court to handle.  Moreover, the defendant started providing information to the law enforcement officials immediately upon his arrest.  CIA or military intelligence officials could have been called in, but the defendant cooperated and provided detail immediately, according to the administration.  Under these circumstances, the administration’s decision to prosecute Abdulmutallab in civilian court was sound, although the greater challenge will come as the administration tries to prosecute some of the remaining Guantánamo detainees in military courts.

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January 6th, 2009, UPDATE:  In depth discussions on foreign policy and detentions on C-Span; President Obama discussing security issues.

Questioning Conventional Wisdom — “Jobless Recovery”

By Marc Seltzer; originally published January 6, 2010

Don’t be too sure

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“Jobless Recovery”

No adjective characterizes political and media discussions of the recovery from the 2008 recession more than the word “jobless.”

Is it true?  Have the stars aligned to deny us a bright future?  Should we be worried?


One way to evaluate what people are saying is to look at their motivation.  In this case, liberals and conservatives are both motivated to characterize the job prospects as worse than they likely are.  Many liberals, such as outspoken Nobel Laureate Economist Paul Krugman, want the government to take action in support of job creation so they focus on the high unemployment rate.  Ten percent is certainly higher than a more ideal 5 or 6 percent that would be a healthy level for the economy, if it were not in either an excessive boom or bust cycle.  But the current high unemployment reflects the depth of the recession, not a “jobless” recovery.

In 2009, the growth rate only turned positive in the third quarter.  Jobs are a lagging indicator and always follow the business turn-around and improvement in growth rate by many months.

Thus, the 2009 recovery is not “jobless” because unemployment has not yet come down.  Every recession involves the loss of jobs and every recovery involves the improvement in business conditions and higher growth rate long before jobs return.

Professor Krugman is worried about a weak recovery and thus wants to see additional stimulus aimed at creating jobs.  He is particularly concerned that the slow return of jobs creates great suffering and harms employment prospects for the long-term unemployed.  His proposals could help alleviate high unemployment and move the economy more quickly towards full employment, but they do not indicate that this is a jobless recovery whereas other recoveries were not.  Rather they reflect the fact that the severity of the recession led to millions of layoffs and that it will take time for millions of workers to be rehired into the labor market.


On the other side of the isle, the Republicans are constantly saying that the Obama administration actions such as stimulus spending and health care reform are bad for the economy and that we are headed for a jobless recovery.  However, it serves the Republican political goals if the Obama administration can be described as failing to lead an economy out of recession.  Millions of people are unemployed and many who are employed face job insecurity.  The Republicans exploit this to political advantage by claiming that current policies are wrong and pointing to a “jobless” recovery as evidence of failure.  The Republicans will continue to have every incentive to claim that Democratic policies are causing a jobless recovery until the 2010 elections.

But that doesn’t make it so.  Remember that it is far quicker to lay off employees than it is to rehire them.  Layoffs can be done by thousands on a single day, while rehiring takes substantial human resource department efforts, paperwork and staffing in itself.  Unless employees were simply furloughed, a thousand employees laid off in a single afternoon could take months to rehire in ordinary conditions.  For this reason, and because the recession of 2007-2008 involved a spectacular financial crisis with fast and deep layoffs, reaching a peak 750,000 a month in January of 2009, unemployment may only decrease by 750,000 to two million new jobs a year in coming years.  Remember, we lost more than seven million jobs.

Nonetheless, six to eighteen months after the growth rate becomes strong, we should expect to see substantial gains in employment.  It will be correct to say during the recovery that jobs are not created as fast as they were lost, but that is a hardly the standard for a “jobless” recovery.  The real key is the growth rate.  It reached more than 2% in the third quarter of 2008.  Six months from now it should be higher still.   The activity is reflected in increased hours and temp job hires for now, but inevitably job creation will follow.

The real question is whether innovative action in the public and private sector can increase the speed of job creation without distorting the marketplace and creating waste.  Nations such as Germany subsidized jobs during the crisis to limit layoffs.  Many nations, including ours, supported public and private sectors with stimulus spending, preventing layoffs from getting worse than they did.  Now, the question is whether means will be found to efficiently return to higher employment more quickly than in other deep recessions.

May 6, 2010 UPDATE:  Recent jobs data finally confirming predictions:  Denver Post