Justice and the Enemy

by William Shawcross

  One might expect protest in Britain at the spectacle of a “human rights organization” having to clarify that it was not actually calling for the murder of the president of the United States. Amnesty made no such protest about its associate. One of the few people to draw attention to the spectacle was Robin Simcox of the Henry Jackson Society, who pointed out that Cageprisoners’ “joke” and the acquiescence that greeted it demonstrated “the moral and intellectual breakdown of the human rights industry in the United Kingdom.” Simcox argued that if the fact of Cageprisoners “writing snuff pieces about President Obama being assassinated does not wake up human rights groups to this, it is hard to know what will.”15

  Amnesty, like Human Rights Watch, did vital work defending the oppressed in many places around the world, but at least in the matter of counterterrorism they were criticized for becoming increasingly partisan. It often seemed that they were more concerned about the way in which the United States and Israel responded to terror than about the crimes of the Islamist terrorists and the abuses of the Arab dictatorships.ad

  At the U.N.’s Human Rights Council, an organization replete with countries that abuse human rights as a matter of routine, Commissioner Navanethem Pillay demanded to know “the precise facts” of bin Laden’s death. She asserted that under international law “you‘re not allowed . . . to commit extra-judicial killings.” Two professors and U.N. consultants, Christof Heyns and Martin Scheinin, issued a statement insisting that all “terrorists should be dealt with as criminals, through legal processes of arrest, trial and judicially-decided punishment.” They, too, insisted that the U.N. be given “more facts.” In other words, these U.N. officials were asserting that the U.S. would be criminally at fault in killing bin Laden unless the U.N.’s interpretation of standards had been met.ae

  The opposite view was expressed by Christopher Hitchens, the British born writer, who became a citizen of the United States after 9/11 and has been one of the most clear-eyed and consistent critics of America’s Islamist and despotic enemies. Hitchens found himself hoping that “Bin Laden had a few moments at the end to realize who it was who had found him and to wonder who the traitor had been. That would be something. Not much, but something.” Hitchens pointed out that in the years since 9/11 the principal military triumphs of bin Laden and his fellow psychopaths had been “against such targets as Afghan schoolgirls, Shiite Muslim civilians, and defenseless synagogues in Tunisia and Turkey. Has there ever been a more contemptible leader from behind, or a commander who authorized more blanket death sentences on bystanders?”16

  Michael Walzer, author of Just and Unjust Wars, had no doubt about the propriety of killing bin Laden. It was an act of war, he wrote, and “He was certainly a legitimate target, as the head of an organization that had declared itself to be at war with the United States—and delivered a devastating attack.... Killing Osama did him no injustice. But was it a violation of our own values to have killed rather than arrested him? Should he have been treated as a criminal rather than an enemy—brought back to the United States and put on trial?” Walzer argued that “He was indeed both a criminal and an enemy, but I don’t see the justice or the morality of asking U.S. Commandos to act like policemen when they were clearly not operating in a zone of peace and when arresting Osama might have made their mission much more dangerous than it already was.”17

  Let us return again to Justice Robert Jackson. He knew that the laws of warfare are not static and that new forms of attack justify new forms of defense. Despite his belief in international law, Jackson was open to precisely the sort of justice that was visited upon Osama bin Laden. In late April 1945, as Soviet forces were closing in on Hitler in his bunker, Jackson agreed with President Truman that it was for the executive to decide which Nazi war criminals should be submitted to trial. He did not want any kind of show trial, but he acknowledged that there might be some criminals whom the administration would wish to execute forthwith. Justice Jackson had no problem with that. He said, “I have no purpose to enter into any controversy as to what shall be done with war criminals either high or humble. If it is considered good policy for the future peace of the world, if it is believed that the example will outweigh the tendency to create among their own countrymen a myth of martyrdom, then let them be executed. But in that case let the decision to execute them be made as a military or political decision. We must not use the forms of judicial proceedings to carry out or rationalize previously settled political or military policy.”18

  Justice Jackson, chief U.S. prosecutor at the Nuremberg Military Tribunal, would have accepted both the killing of bin Laden and the arraignment before a military court of Khalid Sheikh Mohammed.

  EPILOGUE

  GEORGE ORWELL IS USUALLY A FOOTSURE GUIDE across political battlegrounds. In late 1943, when the tide had turned in the Allies’ favor, he wrote about post-war trials.1 Oddly, he advocated Hitler and Mussolini slipping away. His verdict for them would not be death unless the Germans and Italians themselves carried out summary executions (as they eventually did in Mussolini’s case).

  He wanted “no martyrizing, no St. Helena business.” Above all, he disdained the idea of a “solemn hypocritical ‘trial of war criminals,’ with all the slow cruel pageantry of the law, which after a lapse of time has so strange a way of focusing a romantic light on the accused and turning a scoundrel into a hero.”2

  For once Orwell missed his step. Nuremberg did none of those things. As we have seen, the trial had flaws. To some it will always seem to be “victors’ justice” and it can be called hypocritical in that the Soviet Union, guilty of many of its own crimes against humanity, was an equal partner with the democratic prosecutors and judges.

  But, overall, it succeeded. It was solemn, as it should have been, and what Orwell called “the pageantry of the law” was neither cruel nor slow. Orwell’s fear that the defendants would later be cast in a romantic light and turned from scoundrels into heroes has not been realized. They are still seen as mass murderers. Nuremberg not only dispatched justice swiftly, it also created a historical narrative that has survived. (By contrast, the 1946–1948 trials of Japanese war criminals were less of a success and no common memory or consensus was created by judgment at Tokyo.)

  My father, whom I quoted at the beginning of this book, was asked in 1977 to respond to an anti-Semitic pamphlet entitled “Did Six Million Really Die?” which questioned the validity of the judgments at Nuremberg. He dismissed the publication, saying, “I do not feel called upon to defend the legal status of the International Military Tribunal at Nuremberg nor to justify its conclusions, based as they were upon a mass of incontrovertible evidence, including very extensive official documentation obtained from Nazi sources, the authenticity of which was undeniable.”

  He recalled that the defendant Hans Frank, the Nazi governor general of Poland, told the Tribunal, “A thousand years will pass and this guilt of Germany will not be erased.”3 My father disagreed. He came to marvel at the postwar rehabilitation of West Germany under the guidance of the United States and its Western allies. He pointed out, “Since the war, the German people have made a notable contribution to the peace of the world and the welfare of all races. It is certainly not their wish to conceal, still less to ‘erase’ the guilt of the Nazi leaders whose then-conspiracy dominated, dragooned, and deluded the ordinary people of their country.”4

  In the recreation of a Germany reflecting its own genius, not the horrific distortions of Nazism, Nuremberg played an important role. That was in part because of the close cultural affinities between most of the victors (not the Soviet Union) and the vanquished. German expectations of justice were similar to those of the Western allies. In his closing speech to the Tribunal, my father said that the effects of the trial “will reach out far beyond the punishment of a score or so of guilty men. Issues are at stake far greater than their fate, although upon their fate those issues, in some measure, depend. In the pages of history it will count for nothing whether this trial last
ed for two months or for ten. But it will count for much that by just and patient examination the truth has been established about deeds so terrible that their mark may never be erased, and it will count for much that law and justice have been vindicated in the end.”

  The trial of Khalid Sheikh Mohammed and his co-conspirators will create only a partial record of the way in which Islamist extremism seeks to brutalize and suborn the Muslim parts of the world and conquer the rest. It will not have the same educative effect as did Nuremberg. This is above all because Nuremberg took place only after the war against fascism had ended in unconditional surrender. There has been no such victory over the forces of Islamist terrorism. This trial will not be conclusive.

  Nor will it alter the paranoid fantasies of those in the Muslim world who are convinced that 9/11 was inflicted on America by the U.S. government and that all Jews stayed away from the World Trade Center on that day. No kind of American justice (federal or military) will ever be accepted by Islamists and their sympathizers.af Nonetheless, the trial will be an important stage in the long and painful process of addressing our generation’s most spectacular edition of barbarism.

  I have not sought to argue in this book that there is one single or simple way for the U.S. to bring justice to captured Islamist terrorists in this long war. Instead, I have tried to show that the problems the U.S. government has faced since 9/11 in bringing its enemies to court are far more difficult than its critics, at home and abroad, are prepared to acknowledge. Much of the abuse which was hurled at President Bush by his antagonists at home and abroad was disproportionate. But that, too, was a deliberate tactic of “lawfare”—enemies of the use of American power, both domestic and foreign, were constantly trying to move the frontlines in the War on Terrorism from Afghanistan and Iraq to the courtrooms.5 The wildest exaggerations and lies about U.S. conduct at Guantanamo have been crucial to the propaganda against the United States disseminated around the world, both by released prisoners and by America’s enemies. ag It is worth repeating that of all the thousands of Al Qaeda suspects detained since 9/11, a total of twenty-eight were subjected to “enhanced interrogation” and three were waterboarded.

  “Lawfare” has become an ever more important battleground and the power of the judicial branch over Congress and the president has continued to grow. This has been especially true since 9/11, in particular because of the outrage caused by the abuses at Abu Ghraib and the revelation of harsh interrogations and indefinite detentions at Guantanamo.

  There have been several positive effects of lawfare—it minimizes the risk of civilian deaths, accords more legal oversight and greater legitimacy to wartime decisions, and ensures that the rule of law is never suspended. But it also places ever-tighter constraints upon commanders in the field and complicates the U.S.’s ability to protect itself and its allies. As Justice Scalia said in his dissent from the 2008 Supreme Court ruling in Boumediene v. Bush, henceforth decisions on “how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.” The framers of the U.S. Constitution did not intend for such judicial power over U.S. foreign policy and security concerns.

  As Gabriel Schoenfeld has pointed out, “Lawyers have penetrated every crevice of our defense machinery [there are more than 10,000 attorneys in the Defense Department alone] and they determine the conduct of war to a degree without any precedent.” President Obama came to office surrounded by a team of lawyers imbedded in this new legalism to use the law to change the conduct of the war. However, reality intruded and the president has quietly continued many of George W. Bush’s policies in the War on Terror. All of which reflects “the perpetual struggle to find an equilibrium between life and liberty—a struggle that every liberal democracy faces acutely in wartime.”6

  In the matter of delivering justice to the Radical Islamist enemy, both federal and military courts have a role to play. The Obama administration was correct when, consistent with the rule of law, it finally agreed to use the specially built court at Guantanamo. It was likely not to be only KSM and his coconspirators who would be tried there. At the same time, it was incumbent on Congress to allow the administration to bring other detainees to the United States for trial in federal courts. As Robert Chesney, professor of law at the University of Texas School of Law, testified to the Senate Armed Services Committee, sometimes the imperatives of intelligence-gathering through interrogation will suggest that military detention (when legally available and subject to the appropriate constraints as to methods involved) is most suitable. And in other cases, the civilian criminal justice system will be the best way to secure the long-term detention of a dangerous person.7

  In June 2011 a new chief prosecutor of the military commissions was appointed. Brigadier General Mark Martins, the commander of the Rule of Law Field Force–Afghanistan, was a fine choice to oversee the trial of Khalid Sheikh Mohammed. He was a man with wide experience, a former infantryman who had thought deeply about the history, the virtues, and the drawbacks of military commissions and about the affirmative law operations in which U.S. forces were engaged in Afghanistan. Jack Goldsmith, former government lawyer and author of The Terror Presidency, wrote of his appointment, “Some will draw analogies to Robert Jackson’s prosecutorial efforts at the Nuremberg Military Tribunal, but in truth Martins faces a more daunting legitimating task than Jackson did.”8

  One problem that he had to overcome before taking up his post in the fall was the difficulty that the media would have in covering the commissions in Guantanamo. A successful trial of Khalid Sheikh Mohammed and his co-defendants required not just first-rate lawyering but also open proceedings to convince audiences at home and abroad that justice was being served.

  The Pentagon, unlike the federal courts, does not routinely make documents and transcripts of proceedings available promptly. That needed to change, so that the commissions’ website would be able to publish real time filings and transcripts of the trial. In an interview with the Weekly Standard after his appointment as chief prosecutor, General Martins announced that he would take immediate steps to implement such transparency. There would be video feeds of the Guantanamo courtroom transmitted to at least one site in the United States. They would have a forty-second delay to safeguard national security information. “I am a soldier,” he said, “and will certainly do my best to prosecute these cases in a manner that contributes to the legitimacy of all that we undertake in opposing terror networks of global reach.” His job was to “rebrand” military commissions as effective, legitimate, and responsible deliverers of justice. General David Petraeus, Martins’ former commander in Afghanistan and now the director of the CIA, said there was no one better for the task. “His background is uniquely situated to such a critical mission.... Extraordinary. Truly impressive.”9

  Then there was the question of access. The press was already able to cover trials in Guantanamo but geography was a real disincentive. It is easy for journalists to attend trials in American cities, but not many of them would wish to stay for weeks on end in a camp in Cuba. As Benjamin Wittes has pointed out, those who do stay in the camp for long periods will mostly be members of groups (like the ACLU) which “have strong positions against the legitimacy of the commissions; they attend in order to critique.”10

  The ideal way of overcoming this problem would be for the proceedings to be broadcast live on C-SPAN, but the rules of the Manual for Military Commissions seem to prevent this. These rules should be changed, but if that cannot be achieved in time at least there should be closed circuit video feeds to various sites around the United States where reporters and anyone interested could watch the proceedings, as they could a neighborhood federal court. As Wittes said, “if commissions are to have legitimacy, they need to be the sort of thing one presents with pride.... Showcasing the trials will, of course, facilitate criticism of them. In this case, however, I suspect the opposite may also be the case. The critics, after all, ca
re enough to be there no matter where commissions take place. It’s the rest of us who will see them if the doors swing wide open.”11

  There were other crucial issues to be resolved. First, the original Authorization for the Use of Military Force (AUMF) passed by Congress immediately after the 9/11 attacks is now ten years old. It should be amended.

  The original September 2001 legislation authorized “all necessary and appropriate force” against those whom the president determined “planned, authorized, committed, or aided the terrorist attacks… in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” The AUMF made no mention of detention but since it was passed, the U.S. has captured terrorist suspects not only in Afghanistan and Pakistan but also in Iraq, Somalia, and Yemen—and elsewhere. The statute has come to apply to a war wider than that which confronted the United States on 9/11 and it needs to reflect the new conditions. In the words of Michael Mukasey, former attorney general, an amended AUMF should “make clear to all involved, from troops to lawyers to judges—and to our enemies—that detention of suspected terrorists is authorized, and to set forth standards for detaining and/or killing terrorists, even those who are affiliated with groups other than those directly responsible for the 9/11 attacks.”12

  Many of the problems, particularly of detention, were explained in a June 2011 testimony to the Senate Armed Services Committee by Vice Admiral William McRaven, who supervised all the U.S. military’s special operations, including the SEALs’ dispatch of bin Laden. He stated that there was no clear policy on detention. If a suspected terrorist was captured in Yemen or Somalia, for example, he might have to be held on a naval vessel pending a decision to prosecute him in a U.S. court. Failing that he would be transferred “to a third party country.” If neither of those options were available, then the suspect would be released.