The families of victims of the 9/11 attacks, still seeking justice, could be forgiven for feeling that the Obama administration had squandered more than two years. At the end of 2008 the defendants had announced their intention to plead guilty before a military commission in Guantanamo. President Obama cancelled that opportunity. Alexander Santora, the father of firefighter Christopher Santora, who died on 9/11, complained that the U.S. government should have reached the sentencing stage by now. Instead “here we are, starting from square one. It just boggles my mind.”53
The reversal of Eric Holder’s original plan to have the trial in Manhattan of course appalled organizations like the Center for Constitutional Rights and the American Civil Liberties Union for reasons that are well known. There was a more widespread fear that military commissions in Guantanamo would not play well in the Middle East. That may well be true, but it is also important to remember that Islamists and their followers will denounce any form of trial of their members. For them there is no law but sharia.
As I hope I have shown in earlier chapters, it is simply not true in the United States today that only a federal, civil trial can deliver real justice. The safeguards that have been built into the military commissions and successive judgments of the Supreme Court since 2001 guarantee that defendants in military tribunals have ultimate rights of appeal almost identical to those convicted in federal court.
The proceedings in Guantanamo will take place in public view, although there is still room for improvements in access for the press. Khalid Sheikh Mohammed and other Al Qaeda defendants will all be presumed innocent, they will be entitled to both military and civilian counsel who will cross-examine all witnesses against them and see all mitigating evidence in the prosecution’s hands. Their guilt must be proved beyond reasonable doubt, and each will have the right of appeal all the way to the Supreme Court. The death penalty cannot be imposed unless there is a unanimous guilty verdict amongst the members of the commission and the government cannot appeal a verdict of not guilty. The accused will have, as I have said above, far greater rights than the Nazis were given at Nuremberg.
The answers to the questions raised in this book are not clear-cut or simple. Many of the relevant Supreme Court decisions since 9/11 have been made by slim majorities, one way or the other. In such complicated areas of law it is rare to find unanimity. This is not surprising. Indeed, such debate is a token of the vitality of American jurisprudence—and that debate was continuing when, at the beginning of May 2011, the U.S. achieved its greatest single success so far in the War on Terror.
Chapter 8
JUSTICE
ON THE NIGHT OF MAY 1–2, 2011, two teams of America’s finest Special Forces, the SEALs (Sea, Air, and Land), swooped by helicopter out of Afghanistan and into the compound of a house in Abbottabad, Pakistan. From intelligence collected painstakingly over many years, the U.S. had good reason to believe, but no certainty, that Osama bin Laden was living in this garrison town, which was at the heart of Pakistan’s military establishment. The intelligence proved correct.
The SEALs, based in Virginia, are all very highly trained, but some are even more so. The top group used to be known as SEAL Team Six, and is now called both Development Group (DevGru) and Dam Neck. It is split into four squadrons of forty men each: Silver, Red, Gold, and Blue. For this bin Laden mission, Red Squadron was chosen and its members were summoned to base several weeks before the attack was expected. Once on the base, they were locked down and allowed no contact with the outside world. They were put into intense training for the specifics of this assault. Shortly before the planned date, they were flown across the world to Jalalabad and soon afterwards they were in helicopters heading for the suspect compound in Abbottabad. Politically, this was probably the most important mission the DevGru had ever undertaken, but in military terms it was not the most difficult. Often they land about seven kilometers away and have to hike to the target. On this occasion, they landed on the target. The only mishap was that one of the two quietened helicopters crashed on landing and had to be destroyed.
The Al Qaeda leader was found in an upstairs room. He did not clearly surrender and he was shot dead. His corpse was flown, together with a mass of computer drives, USB sticks, and other Al Qaeda documentation gathered by the SEALs, to Jalalabad. Within hours his body had been positively identified from DNA samples and flown to a U.S. carrier in the Gulf of Arabia, where it was washed, wrapped in a white shroud, prayed over in Arabic and English, and buried at sea. In Washington, President Obama went on television and, with understandable satisfaction, announced “Justice has been done.” z
Outside the White House, at Ground Zero, and all across America there were scenes of jubilation, and the president was praised for his courage in authorizing a dangerous mission that had no guarantee of success. The SEALs, too, were lauded across the political spectrum. It was about time they had such impartial recognition—in another example of the disproportionate abuse which the Bush administration had endured, on the wilder shores of the left, the SEAL Team Six had sometimes been described as “Cheney’s Death Squad.” 1
Despite the widespread relief across America that the godfather of 9/11 was gone, bin Laden’s death led to fierce arguments about the provenance of the intelligence that led to his discovery and about the law governing such killings. (Not to mention searching questions into the degree and level of Pakistani official collusion in bin Laden’s residential arrangements in the heart of Pakistan’s military establishment.) A key question was how vital to his eventual discovery was the information derived from the “enhanced interrogation” of Khalid Sheikh Mohammed and other Al Qaeda detainees. Senator John McCain, who was tortured as a prisoner of war in Hanoi, and had been a principled opponent of any form of abusive or “enhanced” interrogation techniques ever since, claimed that none of the crucial information that led to bin Laden came from coercive interrogation.
The opposite opinion was expressed by Michael Mukasey, former attorney general who, at his confirmation hearings in 2007, had refused to agree that waterboarding was “torture.” He now insisted that the intelligence that led to bin Laden “began with a disclosure from Khalid Sheikh Mohammed, who broke like a dam under the pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information—including eventually the nickname of a trusted courier of bin Laden.” 2 aa
McCain called upon Mukasey to correct this “misstatement.” But in a letter to the senator, the director of the C.I.A., Leon Panetta, wrote that the trail to Abbottabad was the result of intensive intelligence work over ten years. He left open the utility of enhanced interrogation, saying that some of the detainees who had provided useful information had been subjected to enhanced interrogation techniques. “Whether those techniques were the ‘only timely and effective way’ to obtain such information is a matter of debate and cannot be established definitively.” 3
John Yoo, the deputy assistant attorney general under Bush, who had written the guidelines for the “enhanced interrogation techniques” (and therefore was dubbed by the left as the “author of the torture memos”), wrote in the Wall Street Journal that the discovery of bin Laden “vindicates the Bush administration, whose intelligence architecture marked the path to bin Laden’s door. According to current and former administration officials, C.I.A. interrogators gathered the initial information that ultimately led to bin Laden’s death. The United States located Al Qaeda’s leader by learning the identity of a trusted courier from the tough interrogations of Khalid Sheikh Mohammed, the architect of the 9/11 attacks, and his successor, Abu Faraj al-Libi.” Mr. Yoo gave Obama credit but suggested “he should also recognize that he succeeded despite his urge to disavow Bush administration policies. Perhaps one day he will acknowledge his predecessor’s role in making this week’s dramatic success possible. More important, he should end the criminal investigation of C.I.A. agents and restart the interrogation program that helped lead us to bin Laden.” 4 At the end
of June 2011 the investigation was in large part dropped. ab
Michael Hayden, director of the C.I.A. from 2006 to 2009, thought no debate was necessary. Writing in the Wall Street Journal, he said that when he was first briefed on the prospects of finding bin Laden, “a crucial component of the briefing was information provided by three C.I.A. detainees, all of whom had been subjected to some form of enhanced interrogation.” He went further:So that there is no ambiguity, let me be doubly clear: It is nearly impossible for me to imagine any operation like the May 2 assault on bin Laden’s compound in Abbottabad, Pakistan, that would not have made substantial use of the trove of information derived from C.I.A. detainees, including those on whom enhanced techniques had been used.5
Hayden’s testimony was given added weight by the fact that when he took over the C.I.A., he suspended waterboarding and some other “enhanced techniques” of interrogation “because American law had changed, our understanding of the threat had deepened, and we were now blessed with additional sources of information.” As for the appropriateness of waterboarding, he now said he recognized “the immense challenge of balancing harsh treatment with saving innocent lives.” He, too, understood the dilemma of the lesser evil. 6
Parallel to the debate over methods of interrogation, questions about the legality of the killing were raised.
The U.S. government made unnecessary problems for itself by allowing officials to brief reporters with different versions of bin Laden’s death. Early accounts said he was armed and that he used one of his wives as a human shield. These versions were incorrect and were soon denied. Eric Holder stated that American forces would have captured him alive if he had clearly surrendered. As always, threat assessments had been made before the mission. These would have certainly included the risk that bin Laden would be wearing a suicide vest and would seek martyrdom. If so, the pair of SEALs entering his room would have had approximately one-tenth of a second to pre-empt him. With suspected suicide bombers, anything less than complete surrender (hands above the head and open) can be reason enough to attack in self-defense. ac International law allows killing if the quarry does not clearly surrender.
The U.S. also had legal cover for the killing from the “Authorization for the Military Use of Force” of September 18, 2001, which gave the president the right to use “all necessary and appropriate force” against those who organized the 9/11 attacks. There was the question of whether bin Laden could be lawfully targeted outside of any recognized battlegrounds—in suburban Pakistan rather than in Afghanistan or the ungoverned tribal territories of Pakistan. However, Pakistan was already an important battlefront in the global War on Terror—and by allowing U.S. drone strikes and other military actions inside the country, it could be argued that Pakistan’s leaders had already consented to such an attack as that in which bin Laden was killed.
Moreover, targeting individual enemy combatants in war is accepted as both legal and moral. Two obvious precedents were the May 1942 killing, organized by British intelligence, of S.S. General Reinhard Heydrich, who had committed numerous atrocities as the ruler of Nazi-occupied Czechoslovakia, and the U.S. targeting of Admiral Isoroku Yamamoto, the commander of the Japanese fleet, in April 1943. Yamamoto had not committed war crimes; he was killed because he was considered a highly effective commander and his death would be a blow to the Japanese war effort. If uniformed military officers can be legitimate targets, then surely so can terrorist leaders. 7
The Obama administration’s legal position was expressed by Harold Koh, the State Department’s legal advisor. “Given bin Laden’s unquestioned leadership position within Al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with Al Qaeda.” Moreover, he posed an “imminent threat” to the United States “that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force.” As for whether he should have been taken alive, Koh stated that the SEALs “were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.” 8
Some academics and human rights groups disagreed. Noam Chomsky—one of the Americans, along with Jimmy Carter, whom bin Laden liked to quote with approval—added the terrorist to the list of monsters whom he has excused over many decades of attacks on U.S. policies. He denounced bin Laden’s killing as the “political assassination” of an “unarmed victim” and questioned whether the Al Qaeda leader had anything to do with 9/11. Chomsky demanded to know “how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic. Uncontroversially, his crimes vastly exceed bin Laden’s.”9
Kenneth Roth, the executive director of Human Rights Watch, wrote on his Twitter page that bin Laden’s death was not justice because there had been “no trial” or “conviction.”10 This was, as we have seen, not an isolated view, but Human Rights Watch went on to use the death of bin Laden as an event to criticize the U.S. and its allies. The U.S. and other countries, said the organization, “should mark this moment as a new chapter—one in which they no longer resort to torture, ill-treatment, and other violations of basic rights in their understandable quest to prevent further strikes.” The organization’s deputy executive director for programs, Iain Levine, said that bin Laden’s death “should also bring to an end a horrific chapter of human rights abuses in the name of counterterrorism.” Following criticism, Human Rights Watch removed these statements from its website. Gerald Steinberg, president of NGO Monitor, commented that they showed the organization’s “central role in exploiting moral principles for immoral objectives. This is another illustration of HRW’s record of highly misleading analyses on terrorism and responses, and the centrality of its political and ideological bias.”11
In Europe many reactions were, predictably, equally unenthusiastic. Some of those who had loathed George W. Bush suddenly found their onetime hero, President Obama, wanting. After German Chancellor Angela Merkel said she was “glad it was successful, the killing of bin Laden,” she was immediately attacked across the German political spectrum. Siegfried Kauder, a member of her own conservative Christian Democrat party, claimed that her words were “a vengeful way of thinking that one shouldn’t have; that’s medieval.” He demanded that the United Nations create “binding laws” to determine “what can be done and what cannot.” Claus Kress, a professor of international law at Cologne University, told the leading German news magazine, Der Spiegel, that justice could only be done through the legal process and he doubted that bin Laden any longer “commanded an organization that was conducting an armed conflict either in or from Pakistan.” Der Spiegel agreed, saying that Obama should have put bin Laden “into the dock of an international court” if he had wanted right to be on America’s side.
The Wall Street Journal commented, “[W]e can only say it’s a pity Germany’s elite morality squads weren’t in Abbottabad sometime before Sunday to make that courageous arrest.”12
Geoffrey Robertson, an eminent human rights lawyer in Britain now defending Julian Assange, the WikiLeaks founder, asserted on BBCTV that Obama’s statement that “justice was done” was “a total misuse of language.” He added, “This is the justice of the Red Queen: sentence first, trial later.”13 A constant newspaper and television commentator, Yasmin Alibhai-Brown, declared on BBC TV’s “Question Time” program that she had been almost in love with President Obama, but he had now shown himself to be “an Ugly American.
” On the same program, a distinguished Liberal Democrat, Lord Ashdown, opined that he was proud that Britain was a country of laws, unlike the United States. It was left to Douglas Murray, a young conservative writer and activist, to defend America. (A member of the studio audience said that of all the panelists only Murray was speaking for the victims of Al Qaeda killings.) Murray was the associate director of the Henry Jackson Society, which had become one of the principal intellectual critics of Islamist intolerance and brutality in Britain, and of the delegitimization of Israel abroad.
In the comments on bin Laden’s death, a nadir of sorts was reached by Cageprisoners, the pressure group linked to the venerable human rights organization, Amnesty International. After the death of bin Laden, Cageprisoners released a faux news story headlined “Barack Obama is Dead.” The story showed a picture of “American War Criminal” Obama’s corpse, mocked up to look like the hoax pictures of bin Laden’s body that had circulated on the Internet. The story described how Obama had been killed by Pakistani security forces and how he was cremated after a Christian service on an aircraft carrier. Cageprisoners said that it was trying “to highlight the immorality of extrajudicial killings” and was not “promoting the killing of Obama.”14
Justice and the Enemy Page 18