Justice and the Enemy

by William Shawcross

  The Center for Constitutional Rights and other critics complain that in military processes the accused is denied the right to be informed promptly, at the time of his detention, of the nature and cause of the charges against him. There is no right to a speedy trial (and they certainly will not be speedy if the opponents of military commissions have their way), and the court is not independent because the procedure for appointing military judges is left to the discretion of the secretary of defense. The Military Commissions Act denies the accused full access to exculpatory evidence known to the government, and allows for the introduction of certain coerced evidence. It permits the introduction of evidence obtained without a warrant or probable cause, and even hearsay if a judge considers it reliable and probative.

  In sum, the critics complain that even the 2009 Military Commissions Act does not adequately fulfill America’s requirements under the Geneva Conventions to provide trial by a “regularly constituted court.”

  They have threatened that any move to try Khalid Sheikh Mohammed before a military commission would be met with fierce legal resistance that would go all the way to the Supreme Court.

  What the critics rarely mention is that every single case before a military court can be appealed all the way through the federal courts to the Supreme Court. And so the ultimate safeguard exists for Khalid Sheikh Mohammed and any other detainee whose trial might begin in a military commission in Guantanamo. This is crucial and, in the view of many lawyers, it renders almost meaningless many of the complaints made against specific details of the military commissions.

  America remains in a state of war; it is important to recall that President Bush received on September 18, 2001, and President Obama retained, sweeping Congressional approval for the conduct of this war. That Authorization for the Use of Military Force (AUMF) provides the legal justification for all military action against Al Qaeda and its associates.

  If one accepts that terrorists like Khalid Sheikh Mohammed have deliberately eschewed the protections of the Geneva Conventions by refusing to act according to the laws of war, then there is an argument that they should be treated as criminals rather than as prisoners of war.

  But there has been one basic legal problem for many suspected terrorists in detention. United States criminal law did not always apply to actions by non-U.S. nationals outside the United States that did not involve killing Americans. Khalid Sheikh Mohammed himself could be prosecuted under U.S. criminal law for planning and executing terrorist attacks within the United States, but many detainees have committed no violations of U.S. law.

  For those whose offenses do fall under United States criminal law, consider the implications of trials in federal courts. Such courts must insist on strict rules requiring certain and specific treatment of those arrested and charged with crimes. It starts at the beginning. Indeed, most importantly of all, everyone arrested on suspicion of committing a crime has to be warned of his or her right to remain silent. In America suspects have to be read their Miranda rights to protect themselves against self-incrimination. The precise words differ from one U.S. jurisdiction to another, but a fairly typical warning that an arresting officer is required to give a suspect is:“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?”

  That is not all. The courts have ruled that this warning must be “meaningful,” and the suspect must answer “Yes.” This is difficult enough in a stressful situation after a resisted arrest in an urban crime scene. It is impossible on the battlefield. Soldiers in a combat zone cannot be expected to read captured enemy combatants, lawful or unlawful, their rights. Nor can they protect the chain of custody of evidence gathered at the scene of a potential “crime.” Nor can the punctiliousness sought from police at home be duplicated in moments of extreme danger abroad. On the night that Khalid Sheikh Mohammed was discovered in a safe house in Rawalpindi, the building was surrounded and stormed. His guards were overcome and he was dragged, disheveled, from his bed by C.IA. officers, and Pakistani forces and police. Miranda was not on their agenda.

  The irregular nature of his arrest is only the first of the problems that would be aroused by the arrival of Khalid Sheikh Mohammed in a criminal court. In such courts, rights are prescribed and of course demanded. The U.S. government would move with difficulty from the rules of counterterrorism in Pakistan and Afghanistan to the strict procedures of a U.S. courtroom. In theory, the Miranda rule illustrates this serious problem. However, in recent years the courts have come to recognize the reality of the concerns; it is now not true that breach of Miranda would be a prohibitive bar to the federal court trial of a suspect detained in a military context.

  There are other precedents that must worry prosecutors. The cases of O.J. Simpson and of El Sayyid Nosair, the killer of Rabbi Meir Kahane, the head of the Jewish Defense League, come to mind. Each was found not guilty in jury trials despite overwhelming evidence. Jurors can do strange things in a media circus. Moreover, jurors sitting in a prominent terrorist trial in a federal court might need special protection both during and after any trial. The jurors on a military commission are all serving officers with extensive military training. They would not require protection.

  Any federal judge would also have to consider whether the pre-trial publicity had been so great that Khalid Sheikh Mohammed could not receive a fair trial. Statements by senior members of the administration can hardly have helped. When President Obama was asked whether Americans would find it offensive that Khalid Sheikh Mohammed would be granted constitutional rights, he replied, “I don’t think it will be offensive at all when he’s convicted and the death penalty is applied to him.” 27 One can argue that in all such statements the president was merely stating his faith in the ability of the federal courts to secure a conviction. However, one can expect scores of defense motions claiming that the president’s prejudicial announcement violates due process and the Sixth Amendment and that the charges should be dropped forthwith.

  After all the reforms made to the original 2002 Military Commissions Order, one of the major remaining differences between military and civilian trials is that even under the 2009 Military Commissions Act, hearsay evidence is allowed. Hearsay allows the prosecution to overcome gaps in the evidence chain of custody, especially from the point of capture on the battlefield or elsewhere until it reaches the hands of law enforcement. Military judges are likely to understand this process, and must be convinced by the prosecution that the evidence offered is reliable. And it is worth remembering that the International Criminal Court, a new institution that is widely approved by international lawyers, also allows hearsay if it is “relevant and necessary.”

  Among the statutory procedures that give the government most trouble in federal trials of terrorists is the Brady rule, which comes from a 1963 Supreme Court judgment, Brady v. Maryland. This holds that the government must provide any defendant with all evidence that might prove exculpatory. The defense even has the right to know how much a witness was paid for travel expenses. Brady is a valuable tool for defense lawyers and is a constitutionally-based requirement. Brady questions are usually played out in pre-trial hearings where the defense requests specific witnesses and documents and where the court has to decide whether the requests are merely opportunistic or should be granted. If not precisely followed, it often leads to reversals of convictions. 28

  Brady figured large in one of the most important post-9/11 federal trials of Islamist terrorists—that of Zacarias Moussaoui, the so-called twentieth 9/11 hijacker who was arrested a few weeks before the attack because of his suspicious behavior at a flying school in Minnesota. Although he ultimately pleaded guilty, his trial has been described as “—a three and a half year legal nightmare for the prosecution.”29 Moussaoui insisted on defending himself and an Alice in Wonderland process began. />
  In court Moussaoui filed threats against public officials, ranted and declared that he prayed for “the destruction of the Jewish people.” Using Brady with enthusiasm, he demanded to depose a large number of detained enemy combatant witnesses. The judge gave him access to three of them. The government was, obviously, not keen on the idea of one terrorist suspect interrogating another and declined to comply with Moussaoui’s demands. As a result, the court insisted that the government drop any pursuit of the death penalty.

  Moussaoui also used Brady to demand thousands of pages of classified documents via the Classified Information Procedure Act (CIPA). This usually means that the government sanitizes documents and prepares a classified summary for a security-cleared defense counsel. However Moussaoui, who never pretended he was not a member of the 9/11 gang, insisted that he personally would review the classified summaries.

  While the government was considering how best to refuse to furnish a self-confessed terrorist summaries of classified documents, Moussaoui decided—over the objection of his court-appointed “stand-by” lawyers—to plead guilty. He was given a life sentence without parole. 30

  But that infuriated Moussaoui. Like Khalid Sheikh Mohammed, he sought the death penalty—so he could die as “a martyr.” So he appealed, arguing that because Brady and CIPA were violated, he had been forced to plead guilty and his rights to execution had been denied him. The Appeals Court eventually published a seventy-eight-page ruling that denied him relief on the grounds that because he had pleaded guilty he had waived the right to object. It is uncertain what would have happened if Moussaoui had pleaded not guilty and gone to full trial. Like the case of O.J. Simpson, his trial would have been spectacular, but whether it would have delivered justice is less certain.

  Eric Holder had committed himself to proving Khalid Sheikh Mohammed’s guilt beyond a reasonable doubt in a court of law, while also guaranteeing the constitutional rights of a non-American citizen captured and held (kidnapped, some would say) outside the United States and treated harshly (tortured, many said) while in U.S. custody. Holder had made a promise that seemed almost impossible to keep.

  It is the mantra of those who practice criminal justice that “it is better for ten guilty men to go free than to have one innocent man convicted.” Fair enough. But is it also fair and proper to ask whether that generous principle must always be extended to those who have boasted that their principal ambition is to murder their way to a destruction of the rule of law and its replacement by a sectarian dictatorship?

  The very fact that 9/11 happened at all spelled failure for the law enforcement approach to terrorism. Criminal justice is fundamental to civil society, but it is not always appropriate to warfare, especially not to a war such as that fought after 9/11, in which intelligence-gathering is a vital prerequisite for victory. Criminal justice is reactive, fighting terrorism is proactive. Intelligence—information—is the most important goal.

  The dilemmas were clear when Holder was asked by Senator Lindsey Graham, a Republican from South Carolina and former military lawyer, at a hearing of the Senate Judiciary Committee, what the Obama administration planned to do if and when Osama bin Laden was captured. Holder’s reply—“It depends”—-did not carry great conviction. Graham asked why he would not be sent to federal court like Khalid Sheikh Mohammed. And when would he be read his Miranda rights and provided with an attorney? Again Holder replied, “it depends.” In a later exchange, he also tried to render the question moot by surmising that bin Laden would never be captured alive. With some prescience, he said, “You’re talking about a hypothetical that will never occur. The reality is that we will be reading Miranda rights to the corpse of Osama bin Laden.... He will be killed by us or he will be killed by his own people so that he is not captured alive.” 31

  The underlying question that the trial or trials of Khalid Sheikh Mohammed raises is how far the judiciary should be involved in, let alone come to dominate, foreign and defense policy. Justice Jackson was clear. In the case of Johnson v. Eisentrager (1950), which I cited above, Jackson warned that judicial intervention in wartimewould diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

  By the beginning of the twenty-first century much of what Jackson had warned against had come to pass.

  Chapter 6

  REALITIES

  ERIC HOLDER WAS NOT LUCKY. His decision to try Khalid Sheikh Mohammed in Manhattan was announced just days after the most murderous terrorist attack on American soil since 9/11. It was more than that—it was the most bloody example yet of homegrown Islamist terrorism. And it helped show that the centrally-controlled, tightly-focused terror network that bin Laden had launched upon the world had now metastasized into a deadly and unpredictable franchise that empowered even educated and privileged individuals to embark on mass murder in the name of their God.

  On November 5, 2009, Major Nidal Malik Hasan carried out a massacre at Fort Hood, Texas. Shouting the Arabic phrase, “Allahu Akhbar” (“God is great”), Hassan sprayed his fellow soldiers with gunfire, killing thirteen and wounding thirty.

  Michelle Harper, a civilian Army employee, later described how she hid behind a desk and made a 911 call as Hasan continued his rampage. “Oh my God, everybody is shot,” she told the 911 operator. 1

  Staff Sergeant Patrick Zeigler had just come unscathed through a tour in Iraq when he was shot four times by Hasan; one bullet went through his skull and destroyed about a fifth of his brain. His family and his fiancée, Jessica Hansen, were warned that he might never recover. But thanks to astonishing willpower on his own part, the devotion of Jessica, and the skill of the surgeons, in July 2010, after eight operations on his brain, he walked out of the Mayo Clinic in Minnesota and then he and Jessica were married. 2

  The attacker, Nidal Hasan, was a Muslim, born in Virginia to Palestinian immigrants from Jordan. Hasan joined the army after graduating from college and became a psychiatrist at Fort Hood. Part of his work was to counsel soldiers who had returned from combat in Iraq and Afghanistan. In 2009, Hasan feared deployment to Afghanistan himself. Both his superior officers and the F.B.I. were aware that he had expressed extremist views. But nothing had been done about this, for fear of causing offense, both to Hasan and to other Muslim soldiers. 3

  Such fears dominated early public responses to his act of mass murder. Polls showed that most Americans believed that the shootings should have been investigated by the military as a terrorist act. But “opinion formers” debated as to whether Hasan could be called a “terrorist,” and his Islamist beliefs and connections were either ignored or played down. President Obama declared, “We cannot fully know what leads a man to do such a thing,” while a writer at Newsweek dismissed Hasan as “a nut case.” Army Chief of Staff George W. Casey Jr. cautioned that speculation about Hasan’s motives “could cause a backlash against some of our Muslim soldiers,” while Attorney General Eric Holder declined to state that radical Islam was the major motive for Hasan’s attack. Similar sentiments were expressed in much of the media.4

  The Nation magazine, a reliable barometer of left-wing opinion, asserted that even to mention that Hasan was a Palestinian Muslim was “Islamophobic.” The Huffington Post declared, “there is no concrete reporting as to whether Nidal Malik Hasan was in fact a Muslim or an Arab.” Others tried to depict Hasan as a victim not a killer: he had been so shaken by the stories he heard from soldiers returning from combat in Iraq and Afghanistan that he himself had been infected by the virulent disease of post-traumatic stress disorder. Amongst American commentators
it was, as often, Christopher Hitchens who pointed out that this was all self-deluding nonsense, or “Multicultural Masochism.”5

  Then the shocking detail emerged of just how much the army knew about Hasan’s radical Islamist sympathies before he embarked on his killing spree. When, as a student, Hasan was required to present a paper on a psychiatric theme, he produced a draft which consisted of quotes from the Koran praising the abuse and killing of non-Muslims. Asked to revise it, he made minor changes and was allowed to graduate. In June 2007, he had given a lecture at Walter Reed Medical Center that had troubled his classmates because he defended Osama bin Laden and suicide bombers and warned that “adverse events” could occur if the Pentagon did not allow Muslim soldiers to become “conscientious objectors” in the War on Terror. There were many other occasions in which Hasan made clear to others at Walter Reed the strength of his religious fervor. 6

  Moreover, Hasan’s computer had been monitored by the F.B.I., which was aware that he had visited radical Islamist websites and exchanged emails with an increasingly influential new guru of jihadism, Anwar al-Awlaki, an American imam now based in Yemen who unfortunately plays an increasingly large part in the story to come.

  Hasan had asked al-Awlaki via email when jihad tactics were justified, and in what circumstances the killing of innocent bystanders was allowed. Hasan also wrote that he looked forward to the time when he and al-Awlaki would be united in paradise. Following this disturbing exchange, al-Awlaki posted a ruling online that bullets discharged at American soldiers were fired in a holy cause. After Hasan’s massacre, al-Awlaki blessed the action and Al Qaeda spokesman Adam Gadahn praised his “Mujahid brother” as a “pioneer, a trailblazer, and a role-model.” 7