Justice and the Enemy

by William Shawcross

  There were many lawyers in Holder’s Justice Department who agreed with such sentiments. Holder complained that his proposal for a criminal trial had been politicized, asking, “Why can’t we use a great criminal justice system that has proven effective . . . in a wide range of cases over the past two hundred years?” He also asked that Congress appropriate the money to move Guantanamo detainees to an under-used prison in Thomson, Illinois. “There is no reason to believe that people held in Guantanamo cannot be held wherever we put them in the United States . . . very safely and very effectively.” 32

  The new reality of Al Qaeda forced itself once again into the debate. On May Day (May 1), 2010, another young Islamist tried to conduct mass murder in America. This time, the would-be killer, an American citizen named Faisal Shahzad, sought to attack people in Times Square with a bomb he had been taught how to build by the Pakistani Taliban.

  The United States had been good to Faisal Shahzad, a naturalized Pakistani-American who had lived there for the past ten years. Having obtained a university degree, he was sponsored by two American companies and became a naturalized U.S. citizen in April 2009. He married, had two children, and seemed to be living a quiet, happy life in Connecticut. 33

  But that same year, having publicly sworn allegiance to the United States, Shahzad secretly became a radical Muslim, traveled to Pakistan, and spent forty days with the Pakistani Taliban (TTP) in Waziristan. There he was instructed in the construction of bombs and made a video about his plan to attack America. In this he declared that his intention was to “incite the Muslims to get up and fight against the enemy of Islam.” He declared, “Jihad is one of the pillars upon which Islam stands” and “I have been trying to join my brothers in jihad ever since 9/11 happened. I am planning to wage an attack inside America.” It was not difficult to do, he boasted, urging other Muslim men, “Get up and learn from me and make an effort. Nothing is impossible if you just keep in mind that Allah is with you.” 34

  His Taliban controllers gave Shahzad $5000 to buy the materials for a bomb and installed software on his computer that enabled him to communicate easily with them. Back in Connecticut, Shahzad bought fertilizer, propane, gasoline, other components, and a secondhand Nissan Pathfinder.

  On May Day afternoon, he loaded the homemade bomb into the Nissan and drove to Times Square, parked on Forty-fifth Street and Seventh Avenue, and lit the fuse. Expecting the bomb to explode a few minutes later, he walked away, carrying a semiautomatic rifle in a computer bag—he intended to shoot any policeman who tried to apprehend him. Mercifully, the bomb failed to detonate; street vendors noticed smoke coming from the car and alerted the police, who emptied the area of people and disarmed the device.

  Back home in Connecticut, Shahzad watched the television accounts of his failure; on May 3, believing that he was about to be arrested, he bought a one-way ticket on Emirates Airline to Pakistan. Although the F.B.I. had traced his name and he was now on a “No-Fly” list, he was allowed to board the flight; his plane was already taxiing towards the runway before it was halted and he was arrested.

  Unlike Farouk Abdulmutallab, Shahzad was a U.S. citizen and the fact that he was read his Miranda rights aroused scant comment. He seemed eager, even proud, to tell his story and in court on June 21, 2010, he announced, “I want to plead guilty and I’m going to plead guilty a hundred times forward, because—until the hour the U.S. pulls its forces from Iraq and Afghanistan and stops the drone strikes in Somalia and Yemen and in Pakistan and stops the occupation of Muslim lands and stops killing the Muslims and stops reporting the Muslims to its government—we will be attacking [the] U.S., and I plead guilty to that.” 35

  He asserted, “I am part of the answer to the U.S. terrorizing [of] the Muslim nations and the Muslim people, and on behalf of that, I’m avenging the attacks,” adding, “we Muslims are one community.” His motive was clear: “One has to understand where I’m coming from. I consider myself a Mujahid, a Muslim soldier.” 36

  When the judge pointed out that pedestrians strolling around Times Square on the early evening of May 1 were not attacking Muslims, Shahzad replied, “Well, the [American] people select the government. We consider them all the same.” This statement reflects the radical Islamist view that by definition, infidels cannot be innocents. Faisal Shahzad’s defiance was not comforting. But it showed that whatever euphemism the administration chose to use for terrorist attacks, they are motivated by a persistent and powerful Islamist ideology. 37

  At the end of September 2010, federal prosecutors filed a memorandum in support of the government’s recommendation of life imprisonment. They pointed out that although Shahzad was living a life with his wife and two young children that was full of promise, he had “knowingly and deliberately chosen a different path—a nihilistic path that celebrated conflict and death, cloaked in the rhetoric of a distorted interpretation of Islam.”

  The prosecutors argued, “there are few threats to the national security and the way of life in this country greater than a citizen who chooses to serve as an operative for a foreign terrorist organization and attempts to wage an attack inside the United States.” Perhaps most perplexing and shocking to the prosecutors, “far from expressing remorse or contrition Shahzad has only evinced a lasting sense of pride in his actions.” 38

  On the same day that Shahzad testified in court, the Supreme Court made a unanimous ruling upholding a law criminalizing “material support” to groups that assist people like Shahzad. At that time, around fifty such organizations were officially designated “terrorist groups” by the State Department, although the Pakistani Taliban, which trained and financed Shahzad, was not on the list. The Court also ruled that material support was illegal even if it was intended to bolster “non-violent” elements of terrorist factions purporting to further their “humanitarian” or “peaceful” efforts. Moreover, by a vote of six to three the Court found that there is “no distinction between the violent and non-violent wings of terrorist groups.” Chief Justice Roberts, who wrote the majority opinion, concluded that efforts to help such groups deliver humanitarian aid—as Hamas does in Gaza and Hezbollah does in Lebanon—only serve to legitimize them, at a time when “the government’s interest in combating terrorism is an urgent objective of the highest order.”

  By the middle of 2010, after the Major Hasan, Abdulmutallab, and Faisal Shahzad attacks in the United States—let alone other such attacks as the devastating assault by a tiny group of Pakistani Islamist extremists on Mumbai in December 2008—it was becoming clear that the centrally controlled terror network that bin Laden had launched upon the world was now a franchise.

  In some ways this development outpaced President Obama’s chosen policy of “reaching out to the Muslim world.” The subtext of this approach was that President Bush had failed to do any such thing, though Bush had, from the moment of the 9/11 attacks on, always stated that America was not at war with Islam but with a small group of fanatics. That was an essential truth which both men recognized. Where Obama differed, however, was in his optimistic conviction that, unlike Bush, he could persuade regimes and peoples in Muslim nations that, with him as president, there were no longer real reasons for enmity with the United States.

  What appeared to President Obama as a hand of friendship often appeared to his critics as a reluctance to speak truth to murder. Thus, in October 2009, on the twenty-sixth anniversary of the terrorist truck bomb attack on the U.S. marine barracks in Beirut, in which 241 U.S. marines, soldiers, and sailors were killed, Obama issued a statement which made no mention of the murderers—Hezbollah terrorists under the control of Syria and Iran—let alone the fact that such people were still targeting Americans today.

  He declared the bombing “a senseless tragedy.” But it was no such thing—on the contrary, it was a deliberate part of the Iranian–led campaign to drive the U.S. out of Lebanon. It succeeded, Lebanon suffered, and by October 2009, Hezbollah and Iran were even more powerful enemies of the United States than the
y had been twenty-six years before. Yet they escaped mention in the president’s recollection of the mass murder. 39

  Similarly, on May 17, 2010, President Obama spoke about the murdered Wall Street Journal reporter, Daniel Pearl—in the presence of Pearl’s family—on signing the “Daniel Pearl Freedom of the Press Act.” He said, “Obviously, the loss of Daniel Pearl was one of those moments that captured the world’s imagination because it reminded us of how valuable a free press is.” 40

  This was at best a euphemism. Pearl had not been “lost.” He was deliberately murdered by Islamist terrorists who were delighted to record their horrific act on video and release it on the Internet. The man actually convicted of Pearl’s murder was Omar Sheikh, a British subject who had studied at the London School of Economics, certainly no victim of deprivation. As we have seen, credit for the killing was also claimed by Khalid Sheikh Mohammed. His boastful confession bears repeating: “I decapitated with my blessed right hand the head of the American Jew Daniel Pearl, in the city of Karachi.”41 At the time Mohammed made this claim, it could not be proven, but in early 2011 a three-year investigation at Georgetown University, supported by the Pearl Project, reported that Khalid Sheikh Mohammed was almost certainly the killer. The report said that U.S. investigators had used a technique called “vein matching,” which showed that the veins in the wrist of the masked man filmed wielding a knife over Daniel Pearl matched those of Mohammed. 42 n

  There were other such elisions, notably Eric Holder’s inability to state at a Congressional hearing that there was anything in common between the murderer at Fort Hood, the Christmas underpants bomber over Detroit, and the Times Square would-be bomber. Congressman Lamar Smith asked the attorney general, “Do you feel that these individuals might have been incited to take the actions that they did because of radical Islam?” This is the exchange that in fact followed:

  “Because of . . . ?” asked Holder.

  “Radical Islam.”

  “There are a variety of reasons why I think people have taken these actions,” replied the attorney general. “I think you have to look at each individual case.” 43

  The congressman offered him another chance. “But radical Islam could have been one of the reasons?”

  “There are a variety of reasons why people . . .”

  “But was radical Islam one of them?”

  “There are a variety of reasons why people do these things. Some of them are potentially religious.”

  “Okay,” replied Congressman Smith. “But all I’m asking is if you think, among those variety of reasons, radical Islam might have been one of the reasons that the individuals took the steps that they did.”

  “You see, you say ‘radical Islam,’ ” interjected Holder. “I mean, I think those people who espouse a, a version of Islam that is not. . . .”

  “Are you uncomfortable attributing any of these actions to radical Islam?” the congressman asked. 44

  In a similar vein, Senator Joseph Lieberman concluded in June 2010 that the Obama administration simply refused to face the fact that the U.S. was at war not just with Al Qaeda but with violent Islamist extremism. Lieberman was direct about the problem: “This war will not end when Al Qaeda has been vanquished—though that, of course, is a critical goal—but only when the ideology of violent Islamist extremism that inspires and predates it is decisively rejected.” 45

  The senator quoted Dean Acheson: “No people in history have ever survived who thought they could protect their freedom by making themselves inoffensive to their enemies.” 46

  The most important terrorist trial in the context of the fate of Khalid Sheikh Mohammed began in September 2010 in the Southern District of New York. Ahmed Khalfan Ghailani was the first Guantanamo prisoner to have been brought into the United States to be tried in a federal court. The Justice Department saw this trial as a rehearsal that would show that Khalid Sheikh Mohammed and his alleged 9/11 coconspirators could also be tried in a criminal court.

  Ghailani, a Tanzanian national, was accused of having been part of Al Qaeda’s deadly bombings of the U.S. embassies in Dar es Salaam and Nairobi in 1998. Over two hundred people—mostly Africans but including a dozen Americans—died that day, and thousands more Africans were seriously injured. Ghailani had flown out of Dar es Salaam to Karachi before the bombs exploded. When he eventually arrived in Afghanistan, he was treated as a hero by Al Qaeda; he became a bodyguard and cook to Osama bin Laden, was trained to forge documents (which he did very well), and was reported to have met some of the 9/11 hijackers before they embarked on their own mission.

  Four of Ghailani’s accomplices in the embassy bombings were successfully prosecuted in 2001, but Ghailani was still at large, and he was placed on the F.B.I.’s “Most Wanted List.” In May 2004, the U.S. government announced that he was one of seven Al Qaeda terrorists suspected of planning an imminent attack. In July 2004, Ghailani was captured in a joint operation by Pakistani and U.S. officials. He was subsequently held at a C.I.A. “black site”—as a “high value” detainee, where he was subjected to “enhanced interrogation techniques” short of waterboarding. 47

  According to the C.I.A., the information he provided was helpful. An agency memo, “Detainee Reporting Pivotal for the War Against Al Qaeda,” of June 3, 2005 stated that Ghailani “has provided new insights into Al Qaeda’s skills and networks. As a facilitator and one of Al Qaeda’s top document forgers since the September 11 attacks, with access to individuals across the organizations until his arrest in July 2004, he has reported on how he forged passports and to whom he supplied them.” 48

  In 2006, Ghailani was transferred to Guantanamo, where the Bush administration planned to put him on trial before a military commission to face nine war crimes charges, six of which carried the death penalty. But the Obama administration decided that his guilt was so obvious that he could safely be brought to New York to stand trial in a federal court.

  The trial opened on Tuesday, October 11, 2010 to immediate problems. To begin with, much of the evidence that had been used in the earlier embassy bombing trials was no longer available. For instance, the owner of the truck that Ghailani had used in the Tanzanian attack, and who had established Ghailani’s role back in 2001, had died. Just before the trial began, the presiding judge, Lewis A. Kaplan, created a crisis for the prosecution by barring the testimony of its most important witness, Hussein Abebe. He would have testified that he had sold Ghailani the TNT used to blow up the embassy in Dar es Salaam. But the government had first heard his name from Ghailani himself when he was being subjected to the C.I.A.’s “coercive questioning.” The judge therefore ruled that his testimony was “part of the poisonous tree” and would be disallowed. One should note that much the same might have happened in a military commission. 49

  By making his decision at the last minute, when witnesses were already gathered, Judge Kaplan effectively denied the government the opportunity to appeal. He gave an eloquent justification for his ruling, writing that although he was “acutely aware of the perilous nature of the world in which we live . . . the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction.” This was a noble sentiment, but Kaplan went on to say that even if Ghailani was acquitted, his status as an “enemy combatant” would allow the government to hold him until the end of hostilities. 50

  Ghailani had been interviewed by a psychiatrist, Dr. Saathoff, whose task was to determine whether he was competent to stand trial given his allegation that he had been tortured by the C.I.A. Dr. Saathoff found that Ghailani was more than competent—perhaps because he had become an enthusiastic reader of John Grisham’s legal thrillers. He offered a well-informed view of the differences between military and civilian courts from the point of view of an Al Qaeda detainee: “When I was at Gitmo, they were able to use hearsay evidence,” he said. “Here, they have constitutional rights.” He understood the charges. “They make sense to me
,” he told his psychiatrist. “There will be a jury who will listen to the crime itself. The jury will make the decision, guilty or not guilty.” 51

  The prosecution claimed that Ghailani was “committed to Al Qaeda’s overriding goal of killing Americans” but his defense insisted that he was a “dupe” of Al Qaeda, and had merely been running errands for friends he believed to be genuine businessmen, not terrorists. His lawyer claimed that Ghailani had never been to Al Qaeda terrorist training camps and was never indoctrinated: “It is not his hatred. He is neither a member of Al Qaeda nor does he share their goals.... He was with them but he was not one of them.” 52

  There was much that both the defense and prosecution knew that the jury did not hear, quite apart from the disallowed testimony from the man who claimed to have sold him the explosives. They were not told about the confession he had made during his time in Guantanamo or at the secret C.I.A. “black site” in which his lawyers alleged that he had been tortured. Such admissions were disallowed as evidence tainted by coercive interrogation practices. In his confession he had said that he knew the embassy was the target. The jury also did not hear that during his six years as a fugitive after the bombing, he trained with Al Qaeda in Afghanistan and was a bodyguard for bin Laden.53 These facts might also have been excluded in a military commission in Guantanamo.

  Even without such evidence, the defense’s claim that Ghailani was an “innocent, naïve boy [who] was fooled by his friends” was absurd. Judge Kaplan certainly did not believe it. “Ghailani continued to be of intelligence value throughout his time in C.I.A. custody,” he acknowledged. 54

  The judge also pointed out that “Ghailani’s counsel have had access to extensive classified materials related to his interrogation, yet they have pointed to no evidence to the contrary.”55 In other words they knew that their claim that he was a dupe was demonstrably false. Nonetheless they made it, over and over again. Skillfully, they developed the notion of Ghailani as a charming young man who just ran errands and helped out people he liked. 56