Justice and the Enemy

by William Shawcross

  j Lakhdar Boumediene was a naturalized Bosnian who was captured in Bosnia in 2002 and taken to Guantanamo. Boumediene v. Bush was a writ of habeas corpus submission made in federal court on his behalf. The 5–4 split decision of the Supreme Court demonstrated the huge differences of opinion within the country over the detention and trial of prisoners in Guantanamo. The majority opinion, written by Justice Kennedy, reviewed the history of habeas corpus since the Magna Carta in 1215 and found that the U.S. did have de facto sovereignty over Guantanamo, and that prisoners there did have habeas corpus rights. The decision struck down one section of the 2006 Military Commissions Act as unconstitutional, but left the rest of it intact. Justice Scalia led the four dissenters, Chief Justice Roberts, Justice Alito, and Justice Thomas.

  The majority opinion was a great victory for Boumediene, who was released in 2009, and for the human rights groups that had defended him and so many other Guantanamo cases. The decision guaranteed independent review of the executive’s hitherto unchecked power to hold suspects indefinitely. But the divided justices offered no guidelines on how the lower courts should handle such cases and it took some time for consistency to develop amongst different judges of the U.S. District Court for the District of Columbia, which heard the cases. The national security analyst Thomas Joscelyn commented, “This two-fold dynamic (no guidelines plus judicial inexperience) was bound to be problematic, as even the district judges (who asked Congress to intervene) have recognized. And history has proven Scalia right. The first batch of habeas rulings was, by and large, inconsistent with America’s national security concerns. Over time, the habeas rulings have improved, but only because the D.C. Circuit Court has repeatedly issued much-needed clarifications.” [ Scott Johnson, “The Holder Hangover (And Whence it Comes),” Powerline Blog, January 31, 2010.]

  k In a Memorial Day 2011 essay, the classicist and historian Victor Davis Hanson wrote, “For nearly a century, the American soldier has often been the last, indeed the only, impediment to butchery, enslavement, and autocracy.

  It was the custom of great leaders from Pericles to Napoleon to declare that the graves of their soldiers in far-off foreign soils were testaments to their nations’ grandeur, power, and reach; yet our white crosses in American cemeteries from Epinal, St.-Mihiel, and Normandy to Manila,Tunisia, and Sicily are tributes to American military courage and competency—and a willingness to see an end to wars that brutal men started and might have won had our youth not crossed the seas.

  We should remember all that in the present age of cynicism and nihilism, recalling that nothing has really changed, as some Americans this Memorial Day seek to foster something better than Saddam Hussein, the Taliban, and Moammar Qaddafi. Behind every American soldier, dozens of their countrymen tonight sleep soundly—and hundreds more in their shadow abroad will wake up alive and safe.” [National Review online, May 30, 2011.]

  l Lawyers working under the umbrella of the John Adams Project, which was set up to assist defenses in Guantanamo, were accused in 2009 of having surreptitiously taken photographs of C.I.A. officers in the Washington area and then shown them to detainees in order to identify those who might have been involved in “enhanced interrogations.”The attorneys’ intention appeared to have been to prepare the way for lawsuits against individual C.I.A. officers whose identities were protected by law. The Justice Department was reported to be investigating whether laws, including the Intelligence Identities Protection Act, had been broken.

  In 2005, one attorney, Lynne Stewart, who had no links to the John Adams Project or the Gitmo Bar, was convicted and sentenced to twenty-eight months, later increased to ten years, for her overindulgent representation of “the blind Sheikh,” Omar Abdel-Rahman. Under the guise of seeking better prison conditions for her client, she helped him send instructions to his Egypt–based terror group, al-Gama’a al-Islamiyya, to commit acts of violence.

  Stewart’s supporters in the academic and legal communities complained that she was the victim of “classic McCarthy era tactics: fearmongering and guilt by association.” By contrast, the author Gabriel Schoenfeld argued that “Stewart’s story, and the sympathy and support she has garnered, exemplify the new intensity with which some in America’s legal elite defend terrorists bent on America’s destruction. In this sense, her case is a marker of a profoundly altered legal culture—one that is, in turn, reflected in sweeping changes of a different sort to the national-security apparatus itself.” [Gabriel Schoenfeld, Legalism inWartime, National Affairs, Spring 2011.]

  m The authorities at University College, London were, like many others, reluctant to accept the reality of Islamist extremism on campus. When Abdulmutallab was arrested, the UCL president declared that the school was not a fertile recruitment for terrorists and claimed that even to allege such a thing was evidence of “Islamophobia.” The college’s eventual report on Abdulmutallab found “no evidence to suggest either that . . . Abdulmutallab was radicalized while a student at UCL, or that conditions at UCL during that time or subsequently were conducive to the radicalization of students.” All of this was predictable in London but it was quite unrealistic. The security service, MI6, has published its estimate that some 2,000 young Islamic men in Britain pose a terrorist threat. [Alexander Meleagrou-Hitchens and Michael Weiss, “Terrorism and the British Academy,” Weekly Standard, October 22, 2010.]

  n The investigation into the murder was carried out by a group of journalism students at Georgetown University, led by Asra Nomai—a friend of Pearl and his wife—with whom he was staying in Karachi when he was abducted in January 2002. She described the inquiry as “a labor of love” and said that “The thing I found the most shocking was that so many people were involved and so many remain free.” Amongst the most horrific conclusions in the inquiry was that when Pearl’s throat was cut, the murderers’ video was not working and so the act was carried out a second time. On that occasion the reporter was decapitated and his head help up to the camera.

  The inquiry found that some twenty-seven men were connected to the killing and half of them remained at large. “The Pearl Project reveals that justice was not served for Danny. We couldn’t save him, but we have uncovered the truth left behind,” said Asra Nomani. “Through his death, Danny teaches us important lessons about the reality on the ground in Pakistan regarding militancy, Islamic extremism, and terrorism.” [Andrew Buncombe, The Independent, April 2, 2011; Commentary, January 20, 2011.]

  o The national security analyst Thomas Joscelyn wrote: “CCR is denouncing the entire American legal system and, in fact, America herself. Why is this important? Well, CCR has organized much of the legal opposition to America’s counter-terrorism policies. CCR was instrumental in getting the right for Guantanamo detainees to challenge their detention in federal courts. That has gone so well that one D.C. district judge even ruled that a top Al Qaeda recruiter who assisted the 9/11 hijackers should be released.The D.C. Circuit Court, thankfully, overturned that decision.” Joscelyn recalled the debate about the role of the “Gitmo Bar” in the War onTerror: “Some have argued that by representing ‘unpopular’ clients, they are merely adhering to a noble legal tradition in the same manner as John Adams, who defended British soldiers years prior to the RevolutionaryWar. Granted, some lawyers probably are compelled by their own notions of legal principle, but not all of them are. John Adams sought to create a free society in which all faiths can be practiced and none are enforced by the state. He succeeded. This nation’s second president probably would not appreciate CCR’s smear of the nation he helped found.” [Thomas Joscelyn, “Smearing America in Defense of aTerrorist,” Weekly Standard, November 18, 2010.]

  p Londonistan was the title of a 2006 book by Melanie Phillips; it was one of the first attempts to analyze the effects of massive immigration into Britain and the threat that Islamists pose to social democracy. It was a courageous work—Phillips was much attacked for her efforts by commentators and politicians on the left. Subsequently, Prime Minister David Cameron and
German Chancellor Angela Merkel both acknowledged that multiculturalism had “failed.”

  q The 1,600-page manifesto of Abu Musab al-Suri, a Syrian–born militant with Spanish citizenship, was published in 2004; it examined the failures of Islamist terrorist groups and called for “secret bands of disconnected cells that are both varied and abundant” to cooperate so loosely with each other that they would be almost impossible to penetrate. Decentralization was almost total—the only thing connecting the different groups would be “the common aim, a common name, the common doctrinal jihadi program, and a comprehensive educational program.” [Rick Nelson &Thomas Sanderson, “AThreat Transformed: Al Qaeda and Associated Movements in 2011,” Center for Strategic and International Studies, February 2011.]

  r Thus Ahmed Abdullah Minni, an American Muslim from northern Virginia, spent large amounts of time on YouTube watching videos of Taliban and Al Qaeda attacks on the U.S.–led coalition in Afghanistan. He posted praise for such attacks on YouTube’s comment section and this attracted the attention of a Taliban recruiter called “Saifullah.” This man then started an email correspondence with Minni, encouraging him and a group of friends to come to Pakistan. They were arrested before they could commit harm but the incident was yet another illustration of the power of the Internet. [Scott Shane, “Web Post Began Tale of Detained Americans,” New York Times, December 13, 2009.]

  s Al-Awlaki also met with and inspired as many traveling jihadists as possible in Yemen. A German jihadist of Moroccan origin, Abu Ibrahim al Almani, described how he spent valuable time with al-Awlaki in Yemen. “During an indescribable adventure in Yemen we had the honor of meeting one of the true scholars of our time, the Sheikh and the missionary Imam Anwar al-Awlaki.

  We could benefit much from him and spent precious hours with him.” He claimed that Al-Awlaki “was active in honey sales, [and] had joined forces with some virtuous, big businessmen in order to finance the jihad in Somalia and to send to the brothers in Iraq, Somalia, and Afghanistan.” Abu Ibrahim also described how Al Qaeda and its affiliates maintained safehouses across Europe and the Middle East for travelers en route to war zones to wage jihad. His journey to Afghanistan “lasted exactly one month and was very professionally organized. In the various countries, there were intermediate stations at which they were cared for, we got new travel documents, and, at a particular point in time, a mujahid who was working with the field service accompanied us to the ground of jihad.” [Bill Roggio, Long War Journal, February 15, 2011.]

  t “Islamophobia” is a new concept. In 1997, the British Runnymede Trust defined it as the “dread or hatred of Islam and therefore, to the fear and dislike of all Muslims.” It has had the effect of creating a new “thought crime.” The French philosopher, Pascal Bruckner, pointed out that Islamophobia is unique from racism or anti-Semitism, saying, “Racism attacks people for what they are: black, Arab, Jewish, white. The critical mind on the other hand undermines revealed truths and subjects the scriptures to exegesis and transformation. To confuse the two is to shift religious questions from the intellectual to a judicial level. (continues) (continued from previous page)

  Every objection, every joke becomes a crime.”The notion of Islamophobia is dangerous because “contesting a form of obedience, rejecting ideas one considers false or dangerous, is the very foundation of intellectual life… The invention of Islamophobia fulfills several functions: to deny the reality of an Islamist offensive in Europe the better to legitimate it, but especially to silence Muslims who dare to criticise their faith… We are seeing the fabrication on a global scale of a new crime of opinion analogous to the crime that used to be committed by ‘enemies of the people’ in the Soviet Union.” [Pascal Bruckner. The Tyranny of Guilt, Princeton, 2010, pp. 47–53.]

  According to the F.B.I.’s hate crime statistics, from 1996-2009 not one Muslim was killed in an anti-Islamic or Islamophobic incident in the United States. By contrast, in recent years Christians have come under increasingly brutal assault from Islamist extremists in many Muslim countries, including Iraq and Egypt. [New York Times, December 13, 2010; and Wall Street Journal, December 14, 2010.]

  u The ACLU’s view was put forth by Scott Fenstermaker in a short debate with Bill O’Reilly on his program, “The O’Reilly Factor,” on Fox News. Fenstermaker, a criminal defense attorney with the ACLU, declared that drone attacks on Al Qaeda suspects like Anwar al-Awlaki were illegal. He stated that al-Awlaki was not the enemy, there was no proof he was part of Al Qaeda and anyway, Al Qaeda is posing any threat to us now.” Asked by O’Reilly whether he might be targeted by Al Qaeda just because he was an American, he replied, “I’m a bad example: I’m probably quite a hero to Al Qaeda.” He told O’Reilly that so far as Al Qaeda was concerned, “I don’t think you have the first idea of what you’re talking about.” [www.mediaite.com, August 4, 2010.]

  v The ACLU/CCR suit claimed that Yemen was not a foreign battlefield and so al-Awlaki should be entitled to due process. It asked the District Court to grant an injunction and subject Defense and C.I.A. drone strikes to judicial review. A preliminary injunction to enjoin the government from killing a U.S. citizen outside of armed conflict in violation of the Constitution and international law will not “substantially harm” the U.S., the ACLU argued since the Pentagon could still pursue al-Awlaki “with constitutional law enforcement tools.”To which the Wall Street Journal added this comment, “Except of course for the innocent U.S. civilians who may be killed in the meantime if the ACLU prevails.” [“The LawfareWars,” Wall Street Journal, September 2, 2010.]

  w The dilemma the human rights argument ignored was this: if al-Awlaki, or anyone else, was launching attacks against the U.S. from an ungoverned space where U.S. law enforcement could not reach, then surely the U.S. must have other legal ways of stopping him? If targeted killing was made illegal, then the only alternative would be a major military operation—an invasion of U.S. troops. But often the location—deep in Yemen or Waziristan—makes that impossible. [Foreign Policy, November 2010; and Lawfare Blog, October 13, 2010.]

  x In May 2011, the American Society of Magazine Editors awarded their National Magazine Award for Reporting to Scott Horton for an article published in Harpers magazine in January 2010. The article alleged that three detainees who had committed suicide at Guantanamo in June 2006 had in fact “most likely” been tortured to death by U.S. personnel at the camp. According to Cully Stimson, former head of detainee policy at the Pentagon, the author not only accused U.S. military personnel of homicide, he accused senior lawyers in both the Obama and Bush administrations of lying to federal judges about the affair. As Benjamin Wittes put it, the story was “nothing more than a set of wholly unfounded accusations of murder and conspiracy directed against our men and women in uniform dressed up as investigative journalism.”Wittes was “speechless” that Horton should have been honored by the Society of Magazine Editors. [Lawfare Blog, May 25, 2011.]

  y These reviews would be conducted by officials from the Departments of State, Defense, Justice, Homeland Security, and intelligence officers. Detainees would be allowed attorneys to represent them to challenge the government’s decisions.There would be full reviews every three years and interim reviews every six months to determine whether there was any additional information on any detainee. The Obama administration insisted all this was new, and to some extent it was; but the Bush administration had “administrative review boards” intended to do the same thing, albeit with a less elaborate process.

  z One legal finality came on Friday, June 17, 2011, when U.S. District Judge Lewis A. Kaplan in New York granted a request from prosecutors to drop the terrorism counts against bin Laden. The government filing listed bin Laden’s alleged crimes back to 1998, and then stated: “On or about May 1, 2011, while this case was still pending, defendant Osama bin Laden was killed in Abbottabad, Pakistan, in the course of an operation conducted by the United States.” George Z. Toscas, deputy assistant attorney general for counterterrorism and counterespiona
ge in the Justice Department’s National Security Division, certified that the C.I.A. and U.S. military personnel confirmed bin Laden’s death through DNA tests, facial recognition analysis, and an identification of the body by one of his wives. The Washington Post commented, “the dismissal marked a quiet end to one phase of a long-standing debate over whether bin Laden and other terrorism suspects should be tried in federal courts or before the military.” [Jerry Markon, “Bin Laden court case dismissed,” Washington Post, June 17, 2011.]

  aa John Brennan, Obama’s chief counterterrorism adviser, had stated in 2008 that there had been “a lot of information that has come out from these interrogation procedures that the agency has in fact used against the real hardcore terrorists. It has saved lives. And let’s not forget, these are hardened terrorists who have been responsible for 9/11, who have shown no remorse at all for the deaths of 3,000 innocents.”

  ab In August 2009, Attorney General Eric Holder had appointed John Durham, a Connecticut prosecutor, to examine the C.I.A.’s treatment of more than 100 detainees held in overseas “black sites,”despite the objections of seven former C.I.A. directors. They pointed out that they had already been cleared by the previous administration and it would place the officers in double jeopardy. On June 30, 2011, Holder announced that except in the case of two detainees who had died in custody, further “investigation of the remaining matters is not warranted.” This decision was welcomed by the C.I.A. and its supporters and condemned by the American Civil Liberties Union. [“Vindicating the C.I.A., Ending a Disgraceful Investigation,”Wall Street Journal, July 2, 2011; “Justice Ends 2nd review of C.I.A. questioners,”WashingtonTimes, June 30, 2011.)