Justice and the Enemy

by William Shawcross

  In December 2008, Khalid Sheikh Mohammed and his four co-defendants sent a note to the military judge of their tribunal saying that they wished to confess and plead guilty. The sooner they could be executed and become martyrs, the better—that was their message. “KSM had expressed this sentiment earlier that year, telling his military judge, ‘This is what I wish: to be a martyr for a long time,’ Mohammed said. ‘I will, God willing, have this.’” 42

  But the force of his personality was such that the human rights lawyers and military lawyers representing his co-defendants feared that Mohammed had intimidated the others into pleading guilty, so that they could contribute to the greater glory of his own martyrdom.

  At the same time, Anthony Romero, executive director of the American Civil Liberties Union (ACLU), which arranged for the defendants’ civilian defense attorneys, declared, “It is absurd to accept a guilty plea from people who were tortured and waterboarded.” In his view, “the question for us is whether we want to lend a patina of legitimacy to this legal farce.” 43

  The military commissions were not a farce. They were certainly far too slow—this was in part because of bureaucratic nervousness in the Pentagon but in greater part because the ACLU and other such organizations used every legal device to undermine them and delay them.

  During the 2008 election, much of the criticism of President Bush was shrill. British tabloid newspapers liked to portray him as an idiotic gun-slinging monkey in cowboy gear. At home and abroad he and the hated “neo-cons” were attacked with a lack of restraint, bordering on hysteria, for launching the war in Iraq.

  Iraq is not the subject of this book but it is appropriate to note two things. There is no question that the U.S. mismanaged the early stages of the occupation of Iraq after the overthrow of Saddam Hussein in 2003. But the vast majority of civilian deaths were caused by Sunni and Shia terrorists, not by U.S. troops. Indeed it is important to stress that from the moment that the United States invaded to overthrow Saddam, the worst abuser of human rights in the region, Al Qaeda determined to murder as many innocent Muslims as possible in the hope of creating bloody chaos in which the U.S. mission to create a reasonable government would fail. This grotesque campaign of mass murder was only brought under control at the end of 2007 after President Bush defied all conventional wisdom in Washington and authorized a surge of U.S. troops under General David Petraeus to crush the sectarian murderers. This was a courageous decision and the correct one. (When, in early 2011, mass demonstrations demanding democracy broke out across the Arab world, Iraq was the only nation already to have a directly elected government. It was a corrupt and disappointing government but it was not a tyranny.)

  The complexities of reality were at all times hard for those who loathed President Bush to acknowledge. Some Democrats accused him of using methods reminiscent of the Taliban and Saddam Hussein. “Bushitler” became a term used by his enemies on the left. One Congressman complained that he was asking for legislation to make him a dictator. 44

  Throughout 2008, Senator Barack Obama campaigned for the presidency on similar positions, using fierce rhetoric against many of President Bush’s policies in the War on Terror—and indeed against that very concept. He claimed that Bush ran prisons “which lock people up without ever telling them why they’re there or what they’re charged with.” He maintained that Bush’s military commissions undermined “our Constitution and our freedom” and that they were an affront to American values.

  With President Obama’s inauguration in January 2009, the public priorities of the United States changed dramatically. But one problem remained constant and acute: how best to deal with the evil that Al Qaeda and other Islamist groups had unleashed upon the world. It is one of the defining issues of our time and one that Obama, like Bush, would find difficult to confront.

  As Tony Blair put it, the struggle is not against a small group of fanatics who can and should be crushed, “Or at least, it is not only that. It is also a fundamental struggle for the mind, heart, and soul of Islam.”

  The West is a participant in this struggle but it has to be won within Islam. “Such struggles don’t last an electoral cycle; they last a generation.”45

  Chapter 5

  COURTS

  BARACK OBAMA STUDIED NUREMBERG in law school. Campaigning for the presidency in summer 2008, he referred to the trial when speaking about a recent 5–4 Supreme Court decision, Boumediene v. Bush, which gave Guantanamo detainees the right to challenge their detention in federal court. j He praised the opinion as a triumph for American democracy, linking the ruling to the respect for due process that, he said, Nuremberg exemplified. “During the Nuremberg Trials,” he asserted, “part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.” 1

  To all of which perhaps the most appropriate answer is: up to a point. By arguing in the Boumediene decision that the 2006 Military Commissions Act still failed to protect the rights of detainees adequately, the Court in effect placed itself above both the executive and the legislature in a sensitive area of counterterrorism. This was controversial enough. At the same time the judgment itself represented an unprecedented extension of constitutional rights to foreign-born enemy combatants, which four of the nine justices thought wrong.

  The dissenters, led by Justice Scalia, found no breach of the Constitution in the Military Commissions Act, and they argued that the high number of new terrorist acts committed by those already released from Guantanamo “illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection.”

  In a demurral that was nicely modest about his profession, Justice Scalia pointed out, “Henceforth, as today’s opinion makes unnervingly clear, how to handle prisoners in this war will ultimately lie with the branch [the judiciary] that knows least about the national security concerns that the subject entails.” 2

  Nuremberg was rather different.

  The top Nazis captured at the end of the war in 1945 were indeed given their “day in court.” But that court was a military tribunal, with unique procedures very different from those applied in any domestic criminal court. I believe it was a necessary and successful exercise, but aspects of it remain controversial. To some it will always remain “victors’ justice.”

  Nuremberg was created specifically for the circumstances the world faced after V.E. Day in May 1945. Its rules were tailored to the needs of that moment. In one sense it was very much like the military commissions created by the U.S. government after 9/11—not because it was a military tribunal but because it was a special court designed for a particular moment in history.

  Senator Obama was correct to suggest that the rights of the Nazi defendants were far better protected than they would have been in any Nazi court (or Soviet court, for that matter)—but they certainly did not enjoy the rights of defendants in U.S. federal courts. The idea that the Nazis should have had the protections afforded to Americans by the United States Constitution never occurred to Justice Jackson or any of the other jurists involved in the tribunal.

  But this issue did arise in 1950 in the case of Johnson v. Eisentrager. German soldiers, who were fighting alongside the Japanese in China after Germany surrendered, claimed that their trial and imprisonment after they were captured by the U.S. Army violated their rights under Articles I and III of the Constitution, their Fifth Amendment rights, and others besides.

  The government, in the name of Secretary of Defense Louis A. Johnson, argued that non-resident aliens had no access to U.S. courts in wartime and no habeas corpus rights either. The government recognized that prisoners had rights under the Geneva Conventions but the Constitution gave them no right to immunity from trial or punishment. />
  In his majority opinion for the Court, Justice Jackson agreed with much of the government’s position. He poured scorn on the idea that such prisoners should be entitled to habeas corpus rights. He wrote that there were “inherent distinctions” justifying different treatment of enemies and non-enemies, aliens and residents. The Court found that the Germans had lost their habeas rights not just because they were enemy aliens, but because as such they lacked “comparable claims upon our institutions” and because, as enemies, their access to the courts could have been “helpful to the enemy.” Moreover, if the Fifth Amendment invests “enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers.” Most crucially of all, Jackson argued, “We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.” 3

  It would be hard for a Supreme Court opinion to be stronger in its rejection of the idea that illegal enemy combatants should have the same rights as American citizens.

  Justice Jackson knew whereof he wrote.

  At Nuremberg, the defendants’ rights were governed by the charter annexed to the London Agreement of August 1945, crafted by Jackson and his colleagues from the other Allied powers, that created the Tribunal. 4 The charter’s provision for “fair trial” was brief. It insisted only that the indictment be prepared, translated into German, and explained to the defendants, and that the proceedings be simultaneously translated so that the defendants could follow the course of their trial—and the German population could be enlightened as to the crimes that had been committed in its name. The accused were granted the right to conduct their own defense or to have the assistance of counsel, as well as the right to present evidence and to cross-examine any witnesses testifying against them.

  On the question of rights of appeal, the charter was succinct. Nothing of the sort was allowed. The charter stated “The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review.”

  In other words, the law enforced by the victorious Allies at Nuremberg was, in many ways, rather less generous to the Nazi defendants than Barack Obama recalled. It gave fewer rights to the accused than did the military commissions created in the United States during the Bush administration. Any German in the dock at Nuremberg would be astonished to learn of his rights, privileges, and entitlements, if he were suddenly transferred by time machine to the court in Guantanamo.

  In Bush’s 2002 Military Commissions Order (which critics described as setting up “kangaroo courts”), there was a presumption of innocence, and the standard of proof had to “have probative value to a reasonable person,” which was similar to the Rules of Procedure for the Nuremberg Tribunal. However, at Nuremberg, the rules were less lenient towards the accused: they could be tried in absentia, had no right against self incrimination, and had no right to challenge the judges—all of which were the opposite at Guantanamo. The differences grew further in 2009, when many restrictions were imposed on the admissibility of unlawfully obtained evidence.

  The Germans would also have been surprised if there had been a throng of highly qualified, highly regarded, and often highly paid American lawyers clamoring to defend them. At Nuremberg the defendants had lawyers, but they were all Germans, often Nazis, paid a stipend by the U.S. Army. They did not have either prestigious law firms or powerful human rights organizations behind them. Indeed there was no human rights machinery in Nuremberg—or anywhere else in the world in 1945. Apart, that is, from one institution: the U.S. Armed Forces and their democratic partners.

  The U.S. military was then, and has remained, the greatest defender of human rights that the world has ever seen. Think only of the millions rescued from tyranny by the American soldiers, sailors, marines, and airmen in Europe and Asia through the three-and-a-half years the U.S. fought in the Second World War. America’s allies played vital roles, but without the extraordinary courage and sacrifice of American fighting forces and their leaders, fascism could never have been conquered, nor the postwar world rebuilt, nor the tragedy of communist dictatorship faced down and finally defeated. More recently, in former Yugoslavia, Albania, Iraq, Afghanistan, and elsewhere, American treasure has been spent and much American blood has been spilled in promoting more just governments and defending Muslims against sectarian fundamentalists, in many cases promoted by Al Qaeda. k

  Since 1945, the international human rights movement has come of age and done great good. The responses to the Second World War—Nuremberg itself, the creation of the United Nations, the rewriting of the Geneva Conventions, and the establishment of the International Court of Justice were all designed to help the rise of an international rules-based system. Through the next half-century that system fostered the rise of national and international human rights organizations. Groups like Amnesty International, originally founded in Britain in the 1960s to defend prisoners of conscience around the world, the American-based Human Rights Watch, and myriad smaller organizations have won great victories in the defense of specific and general rights around the world. For this they deserve unmitigated praise. But in recent years, as they have grown in influence and in political power (and grown more critical of the United States), they have attracted more controversy. Since Vietnam, civil liberties and human rights activists have moved more and more into the domain of national security affairs, all over the world. The new concept of “lawfare”—meaning the use (and sometimes misuse) of law as an asymmetrical weapon of war—has become an increasingly important weapon against governments, above all the United States.

  Abroad, U.S. diplomats and military personnel have become more vulnerable to the newly popular doctrine of universal jurisdiction, which insists that courts anywhere can issue arrest warrants for people alleged to have committed crimes against international law. It is an irony, but America is particularly susceptible to such judicial activism in the very core of the free world that its soldiers have died to liberate and served to sustain.

  Thus in 2003 a court in Belgium named General Tommy Franks for his role in the Iraq war under a 1990s law giving Belgian courts the power to try war crimes and genocide wherever in the world they are committed. Donald Rumsfeld pointed out that alleged violations of international law were “sometimes nothing other than the assertion of a hostile foreign critic, perched on a judicial bench or at a university, or within an activist political organization.” He argued that the law was more likely to be used against Americans than against real dictators actually guilty of war crimes. Belgium had never moved against Saddam Hussein, for example. 5

  Brussels is the home of NATO headquarters and Rumsfeld feared that under the new law, all American officials and soldiers serving there would be vulnerable to political show trials. “Belgium’s power to do this infringed on American democracy, by subordinating our government—our officials and our country’s policies—to a foreign government or organization that is unaccountable to the American people. The more I considered the Belgian law, the angrier I became.” In his memoirs Rumsfeld recounts that he warned the Belgian Defense Minister that NATO’s headquarters would be relocated from Brussels unless the Belgian government changed the law. It did so, quickly. 6

  Within the United States, a general dislike of war coupled with the specific, awful abuses at Abu Ghraib prison in Iraq (quickly stopped by the Pentagon and punished under law), the dilemmas of Guantanamo, and other aspects of the War on Terror encouraged much of the human rights community to be fiercely critical of the U.S. government. As we have already seen, it was effective in using the law and Al Qaeda defendants had a powerful legal lobby, which its critics nicknamed the Gitmo Bar.

  One of the powerhouses of that bar has been the Center for Constitutional Rights. Far from supporting the status quo, as its name might suggest,
this is a radical organization. It was founded in 1966 by the left-wing lawyer William Kunstler, who once described his work as that of a “double agent . . . working within the system to bring down the system.” 7

  The president of the Center at the time of 9/11 was Michael Ratner, a veteran of lawfare with clear views. He accused Alberto Gonzalez, President Bush’s White House counsel and then attorney general (2005–2007) of having “his hand deep in the blood of the conspiracy of torture.” 8 He described Guantanamo as “a human rights abomination” and “an offshore Devil’s Island [which] has no place in a country that claims it abides by the rule of law.” 9 The Nazis, he said, “used the Reichstag fire the same way Bush used 9/11. . . . [T]hat’s really the beginning of the coup d’etat in America.” 10

  That so-called coup was good business for the Center, which came into the judicial mainstream after 9/11 by taking up the cases of detainees at Guantanamo. Its income doubled to almost five million dollars and it also benefited from thousands of hours of work provided free by pro bono lawyers, many of whom worked for some of America’s most prestigious white shoe law firms. Apart from litigation on behalf of detainees, the Center also campaigned, both in the U.S. and Europe, for the indictment of senior officials of the Bush administration for war crimes.

  Representation of anyone accused of a crime is a sine qua non—all those facing trial need proper representation, whether they are detained in Guantanamo or a civilian prison, accused of acts of terror or shoplifting. Moreover, the essential, principled American legal tradition of providing counsel for unpopular clients is as old as John Adams’ representation of British soldiers charged in the Boston massacre. The War on Terror raised a whole host of new, important, and complex questions, involving both national security and liberty. Detention alone raised all sorts of complicated issues and effective defense counsel, in both civilian and military courts, was crucial to resolving them.