by John Yoo
Chertoff was like a fullback, clearing the field for Ashcroft. A week later, Ashcroft appeared before the Judiciary Committee and went over the same legal theory about executive authority to establish military commissions. Polls showed large majorities favored military tribunals for terrorists. Ashcroft commented wryly that "charges of kangaroo courts and shredding the Constitution give new meaning to the term 'the fog of war.'"8 Going too far, he chided his critics as those "who scare peace-loving people with phantoms of lost liberty," and charged that "your tactics only aid terrorists" and "erode our national unity and diminish our resolve." After that, no one on the committee had the heart for the fight anymore. Most of the hearing turned to the use of federal background checks on gun buyers to check for terrorists. Nevertheless, Ashcroft's rhetoric against the civil libertarian critics and their allies in Congress became the lead story of the hearings.
Chertoff and Ashcroft succeeded in defusing any congressional effort to regulate military commissions. While Senate critics introduced a few bills, none ever made it out of commitee. Congress took a wait-and-see approach. If military commissions fouled up down the road, Congress could blame the administration and pass a new law. But just months after 9/11, most congressmen, like their constituents, supported the use of military tribunals for terrorists, and Senator Leahy and his civil libertarian allies were the outliers.
Nearly five years later, the Defense Department still hasn't tried a single terrorist. Military commissions have been the Bush administration's most conspicuous policy failure in the war against al Qaeda. The delay has been due to the sheer multitude of issues involved in building a working court system from scratch. There were no off-the-shelf procedures or lists of war crimes to use. The Defense Department wanted a showcase of military justice at its finest, with rules of substance and procedures that would withstand any scrutiny, both at home and abroad. It was a laudable goal, but it inevitably led to long bureaucratic delays among all the involved agencies. Some military lawyers also resisted creating the commissions. They had trained only for the court-martial system, not this. Military commissions, they argued, would "taint" the court-martial process. Military commissions became another flash point in the struggle pitting the military establishment against Rumsfeld and his civilian advisers in his effort to transform the military in order to address twenty-first-century challenges.
The Defense Department ultimately issued rules giving unprecedented rights to the accused. In late March 2002, DOD provided for a defendant's presumption of innocence, the right to counsel, conviction by proof beyond a reasonable doubt, the right to present evidence and defense witnesses, and the requirement of unanimity for the imposition of a death penalty.9 DOD followed up with regulations defining the crimes that could be charged, such as killing protected persons, attacking civilian targets, and pillage, which were mostly consistent with the customary practice of international law. But they did not issue until April 30, 2003--about a year and a half after President Bush's original order.10 The rules took so long to emerge from the machinery of government that any advantage in using military commissions was lost.
It was good to show the world that the tribunals were hardly some sort of kangaroo court and would provide as fair a trial as the world has known in a war context. Their procedures provided more due process than those of the International Criminal Court, from which the United States had withdrawn in the early years of the Bush administration.11 The main criticism was that they did not provide for review of any conviction by a civilian court, but neither had the World War II commissions. The detail in construction caused the commissions to lose an important advantage. Commissions now seem to work best for approving plea bargains with cooperating enemy combatants at Guantanamo Bay.
This delay was compounded when lawyers for the detainees were permitted to challenge the constitutionality of the military commissions themselves in the federal courts. To be sure, these JAG lawyers were only doing their job by providing their clients with the most vigorous defense possible. But the constitutionality of the military commissions had long been settled. Their appeals asked the Supreme Court to overrule its practice of allowing the President and Congress a free hand to win wars while fighting was ongoing. This gambit succeeded in delaying military commissions another three years, and it might yet pull down military commissions altogether. A judge for whom I once worked gave a well-known speech in the 1970s asking whether too much lawyering "was strangling capitalism."12 Lawyering is beginning to strangle our government's ability to fight and win the wars of the twenty-first century.
Policy
Before discussing why military commissions, far from being some radical innovation in our judicial system, rest well within American constitutional and historical traditions, we should first ask why we need them at all. And for that, it is helpful to have a close look at the case of Zacarias Moussaoui, the only 9/11 plotter captured and put on trial.
In May 2006, a Virginia jury sentenced Moussaoui to life in prison. The end of the trial came almost five years after his arrest. As the jury delivered its verdict of life rather than the death penalty, Moussaoui yelled out, "America you lost! I won." Later in the proceedings he hissed to the judge: "God curse America, and God save Osama bin Laden! You will never get him!"13 A life sentence frustrated Moussaoui's wish to become a martyr. Instead he will spend the rest of his days in the "Alcatraz of the Rockies," the federal government's most secure prison in Colorado, in a small concrete cell for all but one hour a day, where his only contact will be with prison guards and the occasional visitor.14
The story of Moussaoui's trial and conviction shows why the civilian criminal justice system is inadequate to the task of fighting al Qaeda and the threat of mass attacks on American cities. Moussaoui's avoidance of the death penalty probably sparked the most outrage. Members of the Virginia jury believed that his desire to kill three thousand Americans and to inflict billions of dollars in damage on September 11 was "mitigated" by his difficult childhood with an abusive father in a hostile French society. In the framework of the criminal justice system, which is designed to draw every ambiguity in favor of the criminal, the jurors could not come to grips with the unremitting hatred of someone who still, even after his trial had ended, wanted to kill thousands of Americans.
Interrogation of al Qaeda leaders confirmed that Moussaoui came to the United States to be either a backup pilot for the 9/11 plot or a pilot in a second wave of attacks (or both).15 Attorney General Ashcroft pressed hard to have Moussaoui tried in civilian court; he thought it important in the weeks after 9/11 to show the American public that the criminal justice system could respond to terrorism. Some wanted to preserve the option of using military tribunals to try Moussaoui as an illegal enemy combatant, but no one really pushed hard for that position and the commissions were still under development. Ashcroft prevailed in the interagency debate without much of a fight. The Justice Department indicted Moussaoui in December 2001 for conspiring to commit terrorist attacks, and he was sent to Alexandria, Virginia, only minutes from the Pentagon, for trial.
Moussaoui took the opportunity to grandstand in the proceedings before Judge Leonie Brinkema. At his April 2006 plea hearing, he called a defense attorney a "Judas."16 He was often removed from the courtroom for interrupting the proceedings. Pointing to his defense counsel during jury selection, Moussaoui yelled, "I'm al Qaeda. They are American. They are my enemies. This trial is a circus."17 He fired his public defense counsel, refused to meet with them for years, and instead attempted to defend himself. The judge appointed them to assist him anyway to guarantee a fair trial. Moussaoui responded with more outbursts and long handwritten motions insulting his lawyers and Judge Brinkema. He also wrote a letter to Richard Reid, the shoe bomber, who had been a member of the same mosque as he in London.
Moussaoui openly admitted that he was a member of al Qaeda and that he wanted to kill Americans in a second wave of attacks. At times, he also said that he was involved with the 9/11 plot
and wanted to plead guilty to conspiring with al Qaeda leaders and operatives to carry out the attacks. In 2002, he pled guilty but then changed his mind a week later. Defense lawyers filed motions questioning his sanity, and only after three years and a personal meeting with Moussaoui did Judge Brinkema find him competent.
His trial would have gone on years longer had Moussaoui not cooperated by pleading guilty on April 22, 2005, more than three and a half years after the 9/11 attacks. The government hadn't yet presented a single piece of evidence or put a single witness on the stand. Using legitimate means available in any criminal case to tie the government in knots, Moussaoui and his "standby" defense counsel had sent the case up on appeal twice in hopes of forcing the release of reams of classified information on al Qaeda.18
Moussaoui had pressed his rights under the Constitution's Sixth Amendment "to have compulsory process for obtaining witnesses in his favor." This is an essential right to guarantee a fair trial in garden-variety crimes. A routine and fair request in peacetime--but in war a serious problem, because it required that Moussaoui receive access to Khalid Sheikh Mohammed and other captured al Qaeda leaders, and that they potentially testify in open court.
In an ongoing war, the costs of openly disclosing information can be very high. Such costs do not exist in the normal criminal situation. Disclosure in court, or in the media, of sensitive information will help al Qaeda gain insight into our intelligence methods and sources, which will lead it to shut down leaking parts of its organization and expand operations we know nothing about. For example, just hours after information leaked in the 1990s that U.S. intelligence could intercept calls on bin Laden's cell phone, he stopped using it. An individual who is giving us information may shut down if his identity might have to be disclosed in court. The enemy might become alert to spies, who would then be rendered useless or become targets for murder. Imagine the glee of defense counsel demanding that the government identify its informants or meticulously describe its interception technology and how it verified its information.
This is not a mere classroom hypothetical. Andrew McCarthy, a former federal prosecutor, tried Omar Abdel Rahman, known as the "blind sheikh," for participation in the 1993 World Trade Center bombing. He complied with standard criminal discovery procedures and turned over to the defense a list of two hundred possible unindicted coconspirators.19 In essence, it was a sketch of American intelligence on al Qaeda, and it was delivered to bin Laden in Sudan within days of its production in court. It was later found during the investigation into the African embassy bombings. Bin Laden, who was on the list, could now see who was compromised and who was not, and could figure out how American intelligence had learned its information and what our future moves were likely to be.
Moussaoui and his on-again, off-again defense counsel followed this litigation game plan precisely. Moussaoui maintained that he was not involved in September 11. To disprove the charge, he demanded access to Khalid Sheikh Mohammed, Ramzi bin al Shibh, and other al Qaeda leaders in the government's custody, who, he claimed, would testify that he was not part of the original 9/11 attacks, but of a second wave. Judge Brinkema agreed that Moussaoui's constitutional right to a fair trial required access to other enemy combatants, and when the government refused to produce them, she sanctioned them by ruling out the death penalty.20
OLC worked closely with a special group headed by Olson and Chertoff to handle the appeal. It was clear to me that winning the war came first, and I could not imagine that enemy combatants would be made available for Moussaoui. We argued that a district court had no constitutional authority to order production of a witness who would interfere with the government's ability to wage war--and that since the witnesses were outside the reach of the court and unavailable, the criminal trial should go on without them. I was dubious that this argument would prevail, although it had some good authority behind it. The easy answer was simply that the government had a choice of producing witnesses or dropping its prosecution. Courts would be unwilling, I thought, to force a compromise between Moussaoui's right to present an effective defense with live witnesses and the nation's security interests.
My pessimism found its source in Watergate.21 Independent counsel Archibald Cox had placed the burglars and the conspirators John Ehrlichman, H. R. Haldeman, and John Mitchell on trial for fraud and obstruction of justice. The prosecutor subpoenaed President Nixon for secret tapes of conversations in the Oval Office, but Nixon refused on the ground of executive privilege, claiming the President had a constitutional right to confidential communications with his senior aides. In United States v. Nixon, the Court unanimously ordered Nixon to turn over the tapes. It held that the defendants' Sixth Amendment rights to seek information for their defense outweighed the President's interest in confidential advice. "A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated."22 While the Nixon Court had cautioned that presidential privilege would be greater if foreign policy or national security secrets were involved, it also gave the executive branch a choice. If presidents believed the secrets were important enough to protect, they should drop the prosecution. There, the Court had been unwilling to compromise over the constitutional right to call witnesses in a criminal trial.
We developed a fallback argument. Not every witness a defendant wants to appear at trial is available. Some might be dead, others might be overseas and outside the jurisdiction of the courts. In such situations, a jury might receive "substitutions": written summaries describing what the missing witness would have said.23 If the government were not to agree to a written summary that satisfied the trial judge, the court could dismiss the prosecution.
Much to the angst of our federal prosecutors in Alexandria, who had the unenviable chore of trying Moussaoui, we had no intention of granting access to al Qaeda informants in the middle of a war. Allowing Moussaoui to interview them and haul them into court could have seriously undermined our ongoing efforts to gain intelligence from them. "Their value as intelligence sources can hardly be overstated," the Court of Appeals in the Moussaoui case recognized.24 It found reasonable that "interruption [of their interrogation] could result in the loss of information that might prevent future terrorist attacks." If he could interview al Qaeda leaders, grilling our intelligence agents or FBI and DOJ officials about the whys and wherefores of their decisions would have been the inevitable next step.
If it came down to choosing between trying Moussaoui or preserving the intelligence needed to defeat al Qaeda, I had little doubt that the prosecution would be dropped and Moussaoui would go to a military tribunal. Pursuing a criminal case consistent with the Bill of Rights, without interfering with the conduct of the war, is an incredibly delicate balancing act. Moussaoui served as a test case to square the requirements of a civilian criminal trial with the needs of operational secrecy in future cases involving American citizens, for whom the military tribunal route was not open.
As feared, the appeals court didn't buy our argument that al Qaeda witnesses could be withheld completely. In April 2004, it upheld Judge Brinkema's decision that they could provide material testimony in support of Moussaoui's defense, but also ordered that written summaries could substitute for live testimony. Judge, defense counsel, and prosecution had to work together to develop statements that adequately represented what the al Qaeda witnesses would say in Moussaoui's defense.25 That gave the prosecutors enough of a lifeline to continue their work, or at least postponed the day of reckoning.
Courtroom maneuvering went on for another year, as Moussaoui's lawyers appealed yet again to the full appeals court and then to the Supreme Court, which declined to review the case. The trial could not resume until March 2005, more than three years afte
r Moussaoui was indicted. He made important, legitimate constitutional arguments. No criminal trial can go forward until basic issues of access to witnesses and classified material are resolved. It was not even clear that the issues were finally concluded, because others might well have cropped up once Moussaoui began to seek access to other al Qaeda members and more classified materials. The time and effort this process took testify to the generous protections of our criminal justice system, and the potential for misuse.
Luckily, Moussaoui himself relieved the government of its quandary between protecting national security secrets and prosecution. About a month after the Supreme Court turned down his appeal, Moussaoui bizarrely changed his mind again and returned to his original guilty plea. Moussaoui handed the Justice Department its victory on a silver platter. If he had continued to maintain his innocence, as any responsible defense attorney would have insisted, the trial and appeals would have continued for years longer. He might have forced the government into dropping the prosecution, or been acquitted by the jury. Even if a way could be found between this Scylla and Charybdis, the trial's demands for information would already have the effect of changing the nature of the interrogation of al Qaeda operatives, or by encouraging other al Qaeda defendants in the future not to cooperate.