But to critics of the Gitmo Bar, particularly amongst American conservatives, the zeal with which some liberal lawyers espoused the cause of Islamists who wish to destroy Western society and all its values went beyond legal representation. And on this the conservatives had a point. Some of the lawyers, at times, seemed more concerned about the alleged injustices done to the detained terrorists than they did to those perpetrated by them.11
The lawyers thus criticized would no doubt retort that even those accused of the worst terrorist crimes must still be represented, that when Guantanamo was opened it was filled with men who had been rounded up indiscriminately, and that without sustained defense, the innocent could never have been freed and the real suspects could never have been adequately defended. Those are proper arguments. It is also true, however, that some of the defense lawyers seemed to embrace their clients’ causes in ways that abused the traditional client-attorney relationship. l
One thing is certain. The quality and scope of legal representation for detainees in Guantanamo dramatically surpasses what any German or Japanese defendant could have expected after World War II. When the Al Qaeda suspects in Guantanamo came to trial, they did not want for first-class representation.
One of President Obama’s first executive orders, signed on January 22, 2009, was dramatic and ambitious: a commitment to close Guantanamo within twelve months. President Bush had wanted to do the same thing and although he had not succeeded, he had managed to remove all but around 250 of the nearly 800 people who had at one time or another been detained in the camp in Cuba. In this he had enjoyed very little help from America’s allies; they were eager to criticize U.S. detention methods but much less willing to help resolve the issue by taking former detainees.
Obama’s promise to close Guantanamo resonated not only with those on the political left who hoped that it meant the end of non-criminal detention and a return to the law enforcement model of counterterrorism. There was also a hope that the move would restore harmony between the U.S. and the rest of the democratic world. But as the legal scholar Benjamin Wittes has pointed out, Obama was only talking about America’s most public detention facility. He made no mention of closing Bagram in Afghanistan; many more suspects were held there and with much less monitoring by the international human rights community. Moreover, after the Obama administration conducted a review of the detainees, it acknowledged that there were at least forty-eight detainees at Guantanamo who could neither be released nor tried because, in Wittes’s words, “they have not committed crimes cognizable under American law, because evidence against them was collected in the rough and tumble of warfare and would be excluded under various evidentiary rules, or because the evidence is tainted by coercion.”12 Add to that number some sixty Yemenis who could not be sent home because the political situation there was too chaotic, others slated for release for whom the administration could find no new home, and a few who, for reasons of their own safety, were not to be sent back into the world. As of this writing in the summer of 2011, approximately 170 detainees remained in Guantanamo and most of them could not easily be removed, above all because of conditions in their home country, Yemen.
Immediately after his inauguration, the President Obama halted the military trial in Guantanamo of Khalid Sheikh Mohammed and his 9/11 co-conspirators. All other plans for military trials in Guantanamo were put on hold.
President Obama also made big changes to the C.I.A., appointing Leon Panetta as director, shutting down the agency’s program of “enhanced interrogation,” and directing that in the future all interrogations by U.S. personnel must be carried out only according to the instructions laid out in the Army Field Manual.
Shortly afterwards he ordered the publication of four Justice Department memoranda written after 9/11 that detailed the “enhanced interrogation techniques” permitted for use by the C.I.A. These documents became known as “the torture memos” and were released despite protests from Panetta, five previous directors of the C.I.A. and several serving clandestine officers. Former Vice President Cheney demanded that Obama also release other C.I.A. memos that proved, he believed, that “enhanced interrogation techniques” had saved American lives by detecting and stopping attacks. The White House initially refused to do this. The Washington Post columnist Richard Cohen, not a predictable Cheney supporter, observed, “In effect Cheney poses a hard, hard question: Is it more immoral to torture than it is to fail to protect the deaths of thousands?” It was not a matter of ideology, thought Cohen, but of people throwing themselves from burning towers. “If Cheney is right, then let the debate begin: What to do about enhanced interrogation methods? Should they be banned across the board, always and forever? Can we talk about what is, and not just what ought to be?” 13 It was the dilemma of the lesser evil again, and it did indeed require rational debate.
Instead, the new administration changed the language of government. President Bush’s phrase “the War on Terror” was abjured; “terrorist attacks” became “man-made disasters”; wars were transformed into “overseas contingency operations.” Concerns about the threat from radical Islam were downplayed in public. The new president made it clear that he wished to try and establish a much closer relationship between the United States and what he called the “Muslim world,” he even instructed Charles Bolden, the new head of N.A.S.A., to reach out to that world. 14
However, President Obama failed to live up to all the expectations of his supporters. Despite his anti-Bush rhetoric, he continued many of the former president’s counterterrorism policies. He accepted the Bush administration’s “war paradigm” and, though he reaffirmed the Geneva Conventions, he did not start to treat detainees as P.O.W.s. After long debate, he approved a time-limited surge of troops in Afghanistan, he opposed the extension of habeas corpus rights to terrorist suspects held in Bagram airbase and other military sites in Afghanistan, and he extended the killing of terrorist suspects in Afghanistan and Pakistan by high-altitude unmanned drones. The implications of this policy—a shift away from detention and interrogation for the sake of intelligence towards killing with no questions asked—was momentous. He also dropped his pre-election promise to foreswear all military commissions for terrorists. Instead he reformed them in the Military Commissions Act of 2009. This retained most of the procedures of Bush’s 2006 Act, while giving defendants some extra protections.
Eric Holder was an old friend of President Obama who had served as deputy attorney general under President Clinton. In January 2001, he had attracted unfavorable publicity for his role in enabling Clinton to grant a controversial pardon to the fugitive financier, Marc Rich, and for recommending clemency to Puerto Rican terrorists. Holder had most recently been an attorney at Covington and Burling. He was not directly involved in the firm’s pro bono work for Guantanamo detainees, but he appointed to senior Justice Department positions several prominent members of the so-called Gitmo Bar. This excited continued criticism from commentators on the political right, but it is important to note that the lawyers were recused from matters on which they had previously worked.
On November 13, 2009—the eighth anniversary of President Bush’s publication of “Military Order: Terrorism”—Eric Holder announced that Khalid Sheikh Mohammed and his four alleged co-conspirators of 9/11 would be flown from Guantanamo to New York to be tried in the federal courthouse in Foley Square, Manhattan—only a few blocks from the site of the World Trade Center.
To preserve the independence of the attorney general’s office, Holder never mentioned asking for President Obama’s advice or consent before he made the decision. However, he said he had specifically cleared the proposal with New York’s mayor, Michael Bloomberg; with the governor of New York State, David Paterson; and with Senator Charles Schumer of New York. These officials seemed less certain that they had really given informed consent.15
Holder’s announcement of the trial was emotional. He said that “after eight years of delay, those allegedly responsible for the attacks of Septem
ber 11 will finally face justice. They will be brought to New York—to New York—to answer for their alleged crimes in a courthouse just blocks away from where the Twin Towers once stood.” He declared that this would be “the trial of the century.” Subsequently, he said that it would be “the defining event of my time as attorney general.” 16
But he did not intend to send all Guantanamo detainees to federal court. In his November 13 press conference, Holder invoked a protocol released by the Justice Department in July 2009, the “Determination of Guantanamo Cases Referred for Prosecution.”This stated that where feasible, federal courts should be used unless other compelling factors suggested that prosecution in “a reformed military commission” was more appropriate. The decision depended inter alia on the gravity of the offenses alleged, the identity of the victims, and the location in which the offenses occurred. Other considerations included the need to protect intelligence sources and methods, foreign policy concerns, and legal or evidentiary problems.
The attorney general did not fully explain how these criteria had been exercised in relation to Khalid Sheikh Mohammed and his colleagues. But it seemed evident that if the attack occurred on U.S. soil and its victims were Americans, and particularly American civilians, then a civilian trial would be favored. On the other hand, attacks on American military personnel abroad—as in the case of the U.S.S. Cole—would still be dealt with by military commissions.
But why should those who killed American civilians inside America be given more protections than those who murdered American servicemen and women abroad?17 Did this not create a perverse incentive for more attacks like 9/11? That was precisely the opposite of what the Geneva Conventions intended by giving protection to both regular soldiers and civilians. (It is also worth noting that Holder’s decision on Khalid Sheikh Mohammed and his co-conspirators was exactly the opposite of President Roosevelt’s response in the case of the German saboteurs in Ex Parte Quirin in 1942. The Nazis were immediately arraigned before a specially created military commission.)
Echoing Obama, Holder lauded his government’s commitment to giving the 9/11 plotters their “day in court.” He further argued that it would “teach the entire world about who we are but also the basic principles of rule of law…” 18
The effect of this virtuous rhetoric was somewhat spoiled when first Holder and then the president insisted that Khalid Sheikh Mohammed would be found guilty and that death, very probably, would be the sentence. Holder had always claimed that Justice Jackson was his legal hero and, indeed, he hung Jackson’s portrait in his office. He had perhaps forgotten one of Jackson’s important warnings that you must never put a man on trial unless you are prepared to see him walk free.
Holder’s announcement excited both praise and criticism from professionals and lay people alike. Alan Dershowitz, professor of law at Harvard University, argued that it was undoubtedly the right decision because “only civilian courts can assure ‘the most exacting demands of justice.’” He went further: “In this case, the United States will be on trial as surely as Mr. Mohammed.”19 That seemed an exaggeration but around the world, perhaps particularly in Europe, it was a widespread point of view.
Such notions of moral equivalence enraged others. The economist and political philosopher Thomas Sowell thought it “sheer insanity” to try foreign terrorists in American courts as if they were American citizens accused of day-to-day crimes. Terrorists were not even entitled to the protections of the Geneva Conventions, much less the Constitution of the United States. Proceedings in open court give information to the enemy. Why take such risks to please “world opinion”? Sowell asked, “Just who are these saintly nations whose favor we must curry, at the risk of American lives and the national security of the United States?” 20
Michael Mukasey raised other concerns. The former attorney general thought it regrettable that both the president and his chief law officer trumpeted the virtues of a fair trial for KSM while also assuring the world that conviction and the death penalty were the ineluctable outcomes. Perhaps even more significant: “[I]n treating unlawful combatants more favorably than lawful ones, we undo more than a century of effort to civilize the rules of warfare, and we undermine our own safety in the process. A world like that, where choices have no consequences, is a world inhabited only by children and then only in their fantasies. If we try to live in it, we do so at peril to ourselves and our children.” 21
There are many obvious reasons for preferring a civil, federal trial over a military commission or tribunal. The first, already stated, is that the United States is a democracy, indeed the world’s most vital democracy, founded upon the rule of law. It is the leader of the free world, the center that has always held. One can argue that on the integrity of its institutions, real and perceived, Western civilization depends. It must be seen to abide by its values. But how far the U.S. should tailor its national security policies to the perceptions of the world beyond the oceans is a continuing argument.
The American Bar Association made this point: “No matter how heinous the charges, the long-awaited trials of these alleged terrorists must be both fair and perceived as fair, or the resulting verdicts will not be recognized as legitimate.” 22
Put another way, the bar association argued that military trials damage America’s reputation in the world, whereas federal trials are a symbolic, legal retort to the barbarity and tyranny the terrorists celebrate. This was certainly demonstrated in the federal trial of Richard Reid, the British would-be shoe bomber who tried to blow up an American Airlines flight from Paris to Miami in December 2001.23 In court, after he was convicted and sentenced to eighty years in prison, Reid declared his “allegiance to Osama bin Laden, to Islam, and to the religion of Allah.” He told the court “I am at war with your country.”24 This provoked the presiding federal judge, William Young, to make impassioned final comments to Reid and the court. “We are not afraid of any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before.... You are not an enemy combatant. You are a terrorist. You are not a soldier in any war, you are a terrorist.... And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice.”
Judge Young said he had tried to grapple with the question of why Reid had tried to murder so many people and could only conclude that it was because “You hate our freedom. Our individual freedom. . . . It is for freedom’s sake that that your lawyers are striving so vigorously on your behalf.... We care about it because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties. . . . See that flag, Mr. Reid. That’s the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will. Custody, Mr. Officer. Stand him down.”25 Reid’s imprisonment in a maximum security jail has been uncontroversial since.
There are many other things that critics do not like about military tribunals. Under the 2009 Military Commissions Act, the definition of “unprivileged enemy belligerent” was expanded to include those who have “purposefully and materially” supported hostilities against the United States, even if they have not taken part in the hostilities themselves, and even if they are arrested far from the battlefield. This, it is argued, could turn ordinary civilians—such as a mother giving food to her combatant son, or an individual who donates money to a charity linked to a terrorist cause—into “combatants” who could be arrested and tried.
On the other hand, if an Al Qaeda terrorist wearing a suicide vest is clearly a combatant, surely so is the person who made the vest and strapped it on? What about the financier whose money laundering paid for the suicide operation? Or the religious leader who deliberately inspired the murderer? Are they not also a crucial part of the enemy’s force? Some European governments consider the U.S. definition of a combatant too broad. But, the operations of the financier may pose an even greater thr
eat than the specific bomber, and as John Bellinger, former legal advisor for the U.S. State Department, has pointed out, the detention of these operatives is lawful. “The laws of war have long permitted the detention of supporters of hostile forces during armed conflict.... Article 42 of the Fourth Geneva Convention clearly contemplates security internment of protected persons ‘where the security of the Detaining Power makes it absolutely necessary.’26 And such people need to be released only on the cessation of active hostilities. The Allies would never have released German prisoners to return to the fight before V.E. Day in May 1945.
Between 9/11 and 2010, military commissions completed only five terrorism-related cases, (Hicks, Hamdan, Bahlul, Khadr, and Qosi) and two of the three convicted prisoners have already been released. David Hicks was an Australian captured in Afghanistan; he was the first person convicted in a military commission when he entered into a plea agreement on material support for terrorism charges in March 2007. But this trial took place only as the result of a negotiation between Dick Cheney and the then-prime minister (and close U.S. supporter) of Australia, John Howard. The agreement was that Hicks be given a nine-month sentence, most of which he served back at home in Australia. By contrast, John Walker Lindh, an American captured fighting with the Taliban in 2001, was given a sentence of twenty years without parole by a federal court. Even if all of the time Hicks served prior to his plea bargain is counted, his total time in custody was only six years, less than one-third of the sentence Lindh received.
In the same time period, the ACLU and other groups claim, criminal courts had convicted more than two hundred individuals on terrorism charges, with none of the uncertainty that still plagued the military commissions system. But this is an unfair comparison. Some of the defendants in these cases were significant, but the majority of them faced relatively minor charges and were arrested inside the United States where U.S. criminal law applied. Only a few of them (Jose Padilla, Ali Saleh al Marri, Richard Reid, and Zacarias Moussaoui) involved significant Al Qaeda operatives and they were not seized abroad, either on a battlefield or in a secret safe house.
Justice and the Enemy Page 11