Justice and the Enemy

by William Shawcross

  It seems remarkable and deplorable that knowledge of Hasan’s activities and attitudes should not have driven the military authorities to restrain him before he could kill so many people. The hobgoblin of political correctness had played its part, but so did the law. The F.B.I. had interpreted his emails to Anwar al-Awlaki as “consistent with research being conducted by Major Hasan in his position as a psychiatrist at the Walter Reed Medical Center.” The F.B.I. investigators were evidently influenced by the evaluation reports of Hasan’s superiors—they described him as an authority on Islam, and one described his work as having “an extraordinary potential to inform national policy and military strategy.” 8 He was described as a “star officer” dedicated to “illuminating the role of culture and Islamic faith within the global War on Terrorism.” 9

  Three months after Major Hasan committed his mass murder, the Pentagon published an investigation into his conduct that seemed unable to address the disaster. After discussing the way in which alcohol and drug abuse and sexual violence “may trigger suicide in those who are already vulnerable,” the report gingerly approached the subject of religion. It stated, “religious fundamentalism alone is not a risk factor; most fundamentalist groups are not violent, and religious-based violence is not confined to members of fundamentalist groups.” That may be true, but it was irrelevant. Major Hasan’s fundamentalism was specifically devoted to violence. 10

  A much more honest and substantial report was published in early 2011 by the Senate Homeland Security and Governmental Affairs Committee, chaired by Senator Joseph Lieberman. Entitled “A Ticking Time Bomb,” this concluded that the Defense Department and the F.B.I. should have recognized that Hasan had become an adherent of “violent Islamist extremism” long before he went on his rampage. The report called for better military training to identify early signs of Islamist extremism and for policies to root it out. It argued that the underlying problem—for all government departments—is that First Amendment rights to freedom of speech often prevent the government from intervening to thwart radical behavior. 11 Officials supervising Hasan—just like members of the public—were nervous lest they be accused of racism. They were also keen to promote the dream of multiculturalism to which so many institutions, American and European, subscribe.

  Commenting on Senator Lieberman’s report, Dorothy Rabinowitz suggested that the enthusiastic testaments to Major Hasan were probably genuine. A non-Muslim who had exhibited such worrying traits as Hasan would have faced serious consequences, but he was untouchable. “He was a star not simply because he was a Muslim, but because he was a special kind—the sort who posed, in his flaunting of jihadist sympathies, the most extreme test of liberal toleration.” 12

  The consequences of tolerating Hasan were catastrophic for the victims at Fort Hood. Sergeant Zeigler’s fiancée and then wife, Jessica, wrote in her blog: “November 5th was an act of war . . . it wasn’t one man, it is a global war we are fighting.” 13 Not only that, but the war has become decentralized. The Al Qaeda leadership was now inspiring rather than specifically directing individuals to undertake attacks. Terrorists were more diffused and self-starting and thus even less susceptible to detection and prevention.

  The horror of Major Hasan’s religious rampage undoubtedly increased public disquiet over Eric Holder’s plan to bring Khalid Sheikh Mohammed and his colleagues to New York City for trial. On December 5, 2009, a group of several hundred protestors braved pouring rain to hold a two-hour protest rally outside the courthouse in Foley Square. People denounced Holder as “traitor,” “Marxist mole,” and “arrogant bastard.” 14

  An important part in the rally was played by Debra Burlingame, whose brother Charles had been the pilot of the plane crashed by terrorists into the Pentagon and who now ran Keep America Safe, an advocacy group critical of the Obama administration’s national security policies.15 The group saw no reason to give terrorist suspects the full rights of American citizens. Andrew McCarthy, who had led the prosecution of the 1993 World Trade Center bombers, and who was now a fierce critic of using federal courts to deal with terrorists, insisted that this was no time “to wrap our enemies in our Bill of Rights.” Edith Lutnick, whose brother Gary was killed on 9/11, said that he and all the other victims “were murdered by the terrorist Khalid Sheikh Mohammed, and we do not want him and his fellow terrorists tried in that building.” 16

  Events immediately conspired to reinforce such views.

  On Christmas Day 2009, a young Nigerian man, Umar Farouk Abdulmutallab, tried to blow up a Northwest Airlines flight from Amsterdam over Detroit by exploding a bomb concealed in his underpants. The chemical explosive he used was PETN, the same substance used by “shoe bomber” Richard Reid in 2001, which does not show up on airport body scanners. Since a detonator might have been detected at check-in, Abdulmutallab also carried a syringe filled with acid that, when injected into the PETN, was supposed to create the explosion.

  Abdulmutallab’s background did not follow the conventional wisdom that poverty and deprivation lead to radicalization. Far from it—he was the son of a prominent Nigerian banker and had studied at University College, London (UCL), where he lived well and had become president of the Islamic Society.

  If one hoped that the presidents of such academic organizations would be above violence and interested only in philosophy, one would be disappointed. In recent decades, Britain has become an increasingly dangerous breeding ground for Islamist extremism among young Muslims. The Muslim population is growing fast in Britain, as in other European countries, and many authorities have shown themselves incapable of dealing with the demands of young Islamist radicals. British universities have been at best complacent about the seriousness of the threat of radicalization, and at worst complicit in the spread of this pathology on campus. Under the cloak of freedom of speech, incitement against Jews and other “infidels” has become common.m

  Umar Farouk Abdulmutallab was one of many who were radicalized. It emerged after his arrest that he was the fourth president of a London student Islamic society to face terrorist charges in three years. Another was facing retrial on charges that he was involved in the 2006 liquid bomb plot to blow up airliners. The independent think tank The Quilliam Foundation later published a damning study of the intellectual progress made by terrorism through British society. In particular it looked at the Islamic Society at City University, which had already graduated one terrorist and was constantly encouraging others. According to Quilliam, the Society promoted the writings of some of the most bloody Al Qaeda killers and held regular Friday prayer meetings that disdained “man-made law,” cheered the murder of infidels and homosexuals, and endorsed marital rape and wife-beating. 17

  Prime Minister Tony Blair was well aware of the internal threat to Britain and other European societies from homegrown terrorists, but the prevailing attitude of many others in his Labour party and amongst the British cultural establishment was complacency and toleration in the name of multiculturalism. Not for nothing did London become known as “Londonistan.”

  At University College, London in early 2007, Abdulmutallab, as president of the Islamic Society, presided over a “War on Terror Week,” which could have more accurately been described as a “Blame America” marathon. According to the New York Times, the guest speakers included “radical imams, former Guantanamo Bay prisoners, and a cast of mostly left-wing, anti-American British politicians and human rights advocates.” The views of the main lecturer, Asim Qureshi, are straightforward. In a speech given in 2006 outside of the U.S. embassy, Qureshi exhorted the crowd, “We know that it is incumbent upon all of us to support the jihad of our brothers and sisters in these countries when they are facing the oppression of the West.” At which he and the crowd broke into a chant of “Allahu Akhbar.”18

  After London, Abdulmutallab enrolled in a business program in Dubai before leaving in the summer of 2009 for Yemen. There he apparently went to join Al Qaeda in the remote Shabwa mountains. By now his father had become so
concerned about his son’s growing extremism that he informed the U.S. Embassy in Abuja, Nigeria. This was a difficult, not to say enormous, decision for a parent to make. The United States government took no action.

  In the last quarter of 2009, the young man’s radicalization seems to have been completed in Yemen under the tutelage of the mellifluous Anwar al-Awlaki, who had twice been hosted by the East London mosque that Abdulmutallab had attended. The mosque has denied published reports that in a 2003 sermon to the mosque, al-Awlaki instructed his audience never to co-operate with the British police or security authorities. The real concern is that such a dangerous jihadist should have been invited to speak in London anyway.

  In Yemen the young man was fitted with explosive underpants and given the instructions on how to use them. According to one account, al-Awlaki convinced his young protégé that undertaking his mission would make him “the tip of the spear of the Muslim nation.” 19

  Thus inspired and trained, Abdulmutallab traveled home to Nigeria and then flew on to Amsterdam. Despite his father’s warning to the U.S., he was not on any No-Fly list. His behavior—buying a one way ticket to Detroit and traveling without luggage—should have aroused suspicion. But it did not. He had no problem boarding the flight on December 25, 2009. 20

  Shortly before landing, Abdulmutallab did as he was trained to do. The bomb in his pants ignited but mercifully failed to explode. Thanks to that and to the bravery of fellow passengers who extinguished the fire and overpowered their would-be murderer, the plane landed safely and he was arrested.

  That Christmas afternoon, the U.S. Department of Justice had three options. It could read Abdulmutallab his Miranda rights and charge him in federal court. It could detain him as an enemy belligerent. Or it could hold him for extensive questioning under the “public safety exception” to the Miranda requirement, and subsequently indict him, ensuring that nothing he had said during questioning that might amount to self-incrimination was used against him in court.

  Under the “public safety exception,” local F.B.I. agents—who knew nothing of Abdulmutallab and little of Al Qaeda in the Arabian Peninsula—were allowed to question him for fifty minutes. The intelligence community’s existing dossier on him—including information from both his father and from intercepts—was not available to them. 21

  Nonetheless, in that first fifty minutes, Abdulmutallab is said to have shared important intelligence about his training by Al Qaeda in Yemen. Then the Justice Department decided he should be read his Miranda rights, and he was provided with an attorney. He promptly stopped talking.

  The government could have paused. It could have taken more time to consider whether to treat him as an enemy combatant or a criminal suspect, in light of the substantial information suggesting links to Al Qaeda in the Arabian Peninsula, with whom the United States is legally at war. Instead, the Justice Department instantly charged him with a federal crime, which meant that he was at once given the protections of the U.S. Constitution. Neither the director of the F.B.I., nor the director of National Intelligence, nor the secretary of Homeland Security, nor the director of the National Counterterrorism Center, were consulted before the decision was made by the Justice Department. 22

  When President Obama had suspended the Bush administration’s detention and interrogation practices at the beginning of his presidency, he convened a task force to recommend new procedures. In August 2009 the Justice Department responded by announcing the creation of the High-Value Detainee Interrogation Group (HIG), a mobile team of experienced interrogators, linguists, Al Qaeda experts, and others who would immediately swing into action to question captured suspects. They were not called on to assist in Detroit.

  The treatment of Abdulmutallab aroused a storm and not just among Republican critics of President Obama. Senators Joseph Lieberman and Susan Collins, the leaders of the Homeland Security and Governmental Affairs Committee, insisted, in a letter to Eric Holder, that Abdulmutallab was “an enemy combatant and should be detained, interrogated, and ultimately charged as such.” They thought the conduct of the Justice Department had been very poor and they urged that the Nigerian terrorist should be transferred at once to the Defense Department for interrogation and trial. 23 Even Dennis Blair, Obama’s director of national intelligence, later acknowledged that he had not been consulted and that the decision to Mirandize the Nigerian so swiftly was a “mistake.” The Washington Post, no enthusiast for the Bush administration’s War on Terror policies, called the decision “myopic, irresponsible, and potentially dangerous . . . a knee-jerk default to a crime-and-punishment model.” 24

  Michael Mukasey, Eric Holder’s predecessor, recalled the Nazi saboteurs of 1942 (the case of Ex Parte Quirin), pointing out that they, like Abdulmutallab, were originally arrested and questioned by the F.B.I., but were subsequently treated as enemy combatants at the insistence of President Roosevelt. In 1942, the F.B.I. was more of a domestic crime-fighting organization, whereas after 9/11 tasks included more intelligence-gathering, helping to prevent and combat threats to national security, and furthering U.S. foreign policy goals.

  Mukasey also emphasized that, although the Supreme Court had held, in the case of Hamdi v. Rumsfeld, that while “indefinite detention for the purpose of interrogation is not authorized,” detention for the purpose of neutralizing an unlawful enemy combatant was permissible. Moreover, the Court had held that the only right of such a combatant—even if he was an American citizen—was to challenge his classification in a habeas corpus proceeding. The precedent of Richard Reid, who was warned of his Miranda rights and prosecuted in a civilian court, was not relevant. His attempt to blow up an airliner occurred in December 2001, before the procedures were developed to allow for the exploitation of a suspect’s intelligence value.

  Mukasey believed that the decision on how to deal with Abdulmutallab should have involved the C.I.A. and national intelligence directors “and ultimately the president” as well as the Justice Department. “I like to think the default setting would have been toward gathering intelligence rather than worrying about whether a man who did his crime in front of 285 witnesses could be convicted without using his confession.” The war against Islamist extremism, he said, was “unlike any other war we have fought” and the only way to prevail was “to gather intelligence on who is doing what where and to take the initiative to stop it.” 25

  Instead, Miranda induced sullen silence.

  Weeks later, Abdulmutallab’s distraught parents were flown to visit him in prison in the United States; they persuaded him to start talking again. But by this point, much of their son’s knowledge was out-of-date, because his trainers in Yemen had been given time to change their disposition and procedures.

  In their January 2010 letter, Senators Joseph Lieberman and Susan Collins wrote to Eric Holder and to the president’s counterterrorism adviser, John Brennan, urging them to treat Abdulmutallab as an “unprivileged enemy belligerent” and not a criminal vested with the constitutional rights of an American citizen, so that he could be “questioned and charged accordingly.” They noted that President Obama’s repeated assertions that “we are at war” did not appear “to be reflected in the actions of some in the Executive Branch.” Eric Holder did not agree. 26

  The renewed fear aroused by the young Nigerian Islamist led more and more people to question the wisdom of any terrorist trial in Manhattan. In early January 2010, Scott Brown, the Republican candidate in the special Massachusetts election that followed the death of Edward Kennedy, seemed to catch the new mood of anxiety. He broadcasted a television spot, which showed a picture of him in his National Guard fatigues, declaring, “Some people believe our Constitution exists to grant rights to terrorists who want to harm us. I disagree.” Brown also declared his support for waterboarding terrorists, which the Obama administration had defined as torture.27 Exit polls showed that Brown’s tough stance contributed to his remarkable victory in a Democratic stronghold.

  As criticism of the plan to try Kha
lid Sheikh Mohammed in Manhattan grew, Dianne Feinstein, the Democratic chair of the Senate Intelligence Committee, pointed out that “the trial of the most significant terrorist in custody would add to the threat” of terrorist attacks in New York City. The mayor of New York City, Michael Bloomberg, abandoned his previous lukewarm support, and the city’s police commissioner, Raymond Kelly, made ever more dramatic assessments of the security threat and the costs that any trial would impose on the city. 28

  The administration wavered. In March 2010, President Obama’s senior adviser David Axelrod reported that the administration still had not made a final decision and anonymous White House sources were quoted saying that the trial would not take place in New York after all. On March 16, Eric Holder claimed before Congress that a decision was “weeks away.” 29

  It was no surprise that the American Civil Liberties Union and other such organizations became alarmed. Ben Wizner, one of its senior attorneys, made a spirited criticism of a military trial for KSM. “This is the most important criminal case, probably in the history of the United States. And the idea that we’re going to bring a case like that into an untested system, where the rules are pretty much being made up as we go along, there are going to be massive legal and constitutional challenges brought to this. I just don’t understand why any government would want to do that.” 30

  Wizner criticized Senators Lindsey Graham, Joseph Lieberman, and John McCain and other proponents of military courts. “They want to see themselves as warriors, for them the idea that you would bring these cases into time-tested civilian courts is some sign of weakness, that we’re not tough enough, that we see this as just a law enforcement issue and not the war that it is. This is the worst kind of identity politics.” 31