Why did the jurors buy the story? “You start a terrorism trial on the day the United States invades Iraq, you select an anonymous jury,” explained defense attorney Swor. “They assemble somewhere away from the courthouse at secret parking lots. They come on secret buses. They are escorted into the federal courthouse under guard. You don’t think they are scared? One of the prospective jurors asked to be excused because she was absolutely convinced that our clients were going to find out who she was and where she lived and send someone to kill her.” Defense attorneys got nowhere in their motions to postpone the trial so it didn’t coincide with the invasion, to reduce the security hype so jurors would not be biased, and to force the prosecution to disclose evidence.
After the convictions and before sentencing, however, the case unraveled, thanks to persistent defense motions and a few honest Justice Department officials. Joe Allen presented the Butch Jones letter about Hmimsa to colleagues, who went to Judge Rosen, confirming the growing unease he had felt during the trial. Rosen ordered a full investigation of evidence withheld, “the most unpleasant task that I’ve had in almost fourteen years as a judge,” he said, which resulted in the government’s motion to dismiss the terrorism charges but to retry the fraud counts.
The epilogue was undramatic. Despite her “inaccurate” testimony under oath, Mary Peterson continued up the career ladder, suggesting that the air force saw nothing wrong with her behavior. She was put in charge of the counterterrorism branch at the Intelligence Fusion Center in Baghdad, then assigned to NATO, commanded a support group in England, was promoted to full colonel, and became the air attaché at the U.S. Embassy in Poland.11
Convertino and Smith of the State Department did not fare so well. Convertino, in long-standing conflicts with some of his bosses, was taken off the case before sentencing and pushed out of government into private practice.12 But that wasn’t the end. This had been the first terrorist trial after September 11, and senior officials found the withholding of exculpatory and impeachment evidence blatant and embarrassing. So the Justice Department took the rare step of indicting its own prosecutor, along with Smith, for conspiracy, obstruction of justice, and making false statements. A jury quickly found them not guilty, however, and so they walked free. Convertino sued the Justice Department for privacy violations and malicious prosecution; Koubriti did the same against Convertino and the government.13
Nabil al-Marabh, the man the FBI was looking for at the Norman Street apartment, was arrested a day or two later in a Chicago suburb but never prosecuted. After a plea agreement on immigration issues, the government assured a federal judge that he had no terrorist ties, contrary to the intelligence report that had set the entire case in motion, and he was deported to Syria.14
Hannan and Koubriti remained vulnerable to prosecution for faking injuries in the traffic accident to defraud an insurance company—the same accident that had brought their dismissals for missing work at Sky Chefs. Hannan, tired of waiting in jail, pleaded guilty and accepted deportation back home to Morocco. Koubriti was released from jail on an electronic tether, hence the ankle bracelet. Helfrick worked to resolve the charge, and in 2009 the government finally agreed to drop it if Koubriti stayed out of trouble for six months.15
“There are a lot of dangerous guys out there,” concluded the reporter David Ashenfelter. “These aren’t among them.”
TERRORISM AND THE BILL OF RIGHTS
How to deal with the dangerous and spare the innocent—and how to know the difference—are questions that have put the United States itself on trial since September 11, 2001. The constitutional culture has been unsettled by various methods used against terrorism suspects inside the country—not just the “detainees” at Guantánamo and those who disappeared into secret CIA prisons abroad. On U.S. soil, with insufficient evidence to bring criminal charges, the government has imposed preventive detention by locking people up as “material witnesses,” jailing them for months pending deportation, or—in three cases—putting them in military prisons as enemy combatants. When the criminal courts have been used, solid investigation has been mixed with bumbling and overreaching.
Protections of the Bill of Rights are violated every day at the grassroots level of American life, but when the encroachments occur on the large stage of counterterrorism, the drama grips Americans’ passions with special force. The country now thinks about civil liberties mainly in terms of the war on terrorism, not the war on crime, although the incursions into liberty are part of the same set of constitutional issues.
Because terrorism combines ideology and violence, authorities have trespassed on the First Amendment by considering speech and religion when targeting suspects. Because prevention is paramount, officials have tunneled beneath the Fourth Amendment’s restrictions on search and surveillance, and have sometimes breached the Fifth Amendment’s shield against self-incrimination to gather intelligence. Because state secrets need keeping and public trials are unpredictable, the protectors of national security have sporadically evaded the protections of due process in the Fifth and Sixth Amendments, including the right to counsel and the right to confront and summon witnesses.
As in certain cases of ordinary crime, the unconstitutional actions have damaged the reliability of the fact-finding process, whose accuracy depends on the strict observance of the principles. Some innocents have been convicted, some who are guilty have surely been missed, and egregious penalties have been imposed on hapless misfits who have fantasized more vigorously than they have plotted.
Unconstitutional expedience has coursed through one agency after another like a virus infecting a remarkable number of highly educated attorneys from the most prestigious law schools. Yet it has also activated the country’s self-correcting immune system, leaving us ill but very much alive. The judicial branch did not stand passively aside as the Bush administration tried to imprison people in the United States indefinitely without access to the courts. And contrary to some conservative Republicans’ fears that criminal courts could not handle terrorist cases, they have proved capable of doing so.
Outcries erupted on the right when President Obama initially moved the leading 9/11 plotters from Guantánamo into the civilian system, and when his Justice Department prosecuted in civilian federal court the al-Qaeda-trained Nigerian student Umar Farouk Abdulmutallab for trying to blow up a plane as it approached Detroit on Christmas Day 2009. Loud patriotism, it seemed, meant casting aspersions on the constitutional rights provided in the criminal justice system, a crown jewel of our democracy. The country could not agree on how to protect its own liberties.
One argument held that observing the rights (to counsel, against self-incrimination) for a non-American in an act of war would deprive the government of critical information, presumably accessible through tough interrogation. The assumption did not hold up. Abdulmutallab talked freely following his arrest about his associates in Yemen and, following a hiatus after being Mirandized, resumed cooperating at the urging of his family, presumably in the hope of a plea agreement.16
Similar arrangements had been achieved in numerous cases where suspects with attorneys had offered useful intelligence after being read their Miranda rights to silence and to counsel: An American in Chicago, David Coleman Headley, provided information on the 2008 attacks on a railroad station, hotels, and a Jewish center in Mumbai. A New Yorker, Bryant Neal Vinas, helped European prosecutions with details on al-Qaeda training camps. Mohammad Junaid Babar, an American who had given or received explosives instruction in the Afghan-Pakistani border region, pleaded guilty to conspiring to provide material support to al-Qaeda and testified in Canadian and British terrorism trials. Based on cooperating defendants in Minneapolis, the government acquired enough evidence to charge eight men with recruiting young immigrants to become suicide bombers in Somalia.17 The would-be Times Square car bomber, Faisal Shahzad, talked helpfully before and after being read his rights, the Justice Department reported. He later pleaded guilty and received a life sente
nce.
Nothing indicated that military commissions, favored by critics on the right, would do better than civilian courts. In examining 123 prosecutions for terrorism, almost all of them since 2001, Human Rights First concluded that the criminal justice system had performed adequately, and that no alternative mechanism was needed—not an “enemy combatant” designation by the president, and not a national security court as advocated by George W. Bush’s last attorney general, Michael B. Mukasey, where hearsay and coercion might be accepted, and evidence based on sensitive intelligence could be concealed from defendants.18
In advocating a security court, Mukasey cited his 1995 experience as a U.S. district judge trying a group led by Sheikh Omar Abdel Rahman for conspiring to blow up the United Nations headquarters, the Holland and Lincoln Tunnels, and other New York City landmarks. A list of nearly two hundred unindicted co-conspirators, representing considerable secret work by intelligence agencies, was disclosed to defense lawyers, and “that list was in downtown Khartoum within ten days,” Mukasey said, alerting those named (including Osama bin Laden) that they were under U.S. surveillance.19
Mukasey’s claim was misleading. The law contains a workable remedy, which the government never invoked to conceal the names in that case: the Classified Information Procedures Act (CIPA).20 It was passed in 1980 after defendants accused of espionage and other crimes tried to “graymail” the government into dropping charges by threatening to divulge secrets or demand their disclosure in open court.21 The ploy sometimes worked, and prosecutions were abandoned to avoid unwelcome revelations. Now, the CIPA procedures allow a judge to conduct a closed, in camera review of classified information to be introduced by the defense or sought from the government. If the judge finds the evidence relevant, the government says yes or no to disclosure.
If the answer is yes, then it’s seen by the defense attorney, who must have a security clearance. But the defendant himself usually doesn’t get a look at it, except possibly in a censored or summarized form called a “substantial equivalent,” which conceals intelligence sources and methods. Some courts have extended this approach to live witnesses, who have been masked or assigned pseudonyms.
If the government says no to disclosure, the judge decides on a sanction, which could be as minor as removing all the factual evidence that the concealed material would address, or as stiff as the dismissal of a count or a charge. It rarely comes to that, though, for as anyone who has dealt with security-minded censors quickly learns, negotiation over language and detail usually forges a solution.22 After its close study, Human Rights First concluded, “We are not aware of a single terrorism case in which CIPA procedures have failed and a serious security breach has occurred.”23
The disadvantages for the defendant include his inability to see the raw material—to confront the evidence, which may contain an exculpatory flaw that his lawyer wouldn’t notice. Even his lawyer doesn’t participate in the initial examination of the classified material, and judges and prosecutors can’t be expected to see relevance the same way as the defense.
Gathering intelligence and keeping it out of defendants’ hands were among Bush’s motives in designating two American citizens and one legal foreign resident as enemy combatants, subject to indefinite incarceration in military prisons without charge or trial. These might be called “internal combatants”—part of the family, so to speak, because they all had the legal right to live in the United States and were known in legal parlance as “U.S. persons” enjoying full constitutional protection. Two were actually arrested inside the country: the legal foreign resident and one of the American citizens; the second American was captured in Afghanistan. They were distinct from the external combatants, such as those in Guantánamo, who had been seized abroad and were not citizens.
Although the three were held incommunicado, lawyers managed to file habeas corpus petitions on their behalf, by which they invoked the venerable right to summon their jailers before a judge to justify the imprisonment. The Bush administration fought this vigorously, and ultimately lost. The framers had made the Great Writ of habeas corpus exceedingly resilient, first by placing it with legislative powers in Article I, suggesting that only the Congress could suspend it, and then only “when in Cases of Rebellion or Invasion the public Safety may require it.” Consequently, the Bush strategy found little traction in the courts.
The chief justice had ruled during the Civil War that Lincoln had no power, as president alone, to suspend habeas corpus,24 and, just after the war, the Supreme Court decided that military tribunals could not be used to try civilian citizens when civilian courts were functioning.25 During World War II, however, the Court ruled that the president could declare a squad of German military infiltrators, including a naturalized American, enemy combatants and try them before military tribunals.26
These competing precedents carried the Court into the case of Yaser Esam Hamdi, raised in Saudi Arabia from the age of three, captured in Afghanistan, and transported to Guantánamo, where the military discovered his American citizenship when he mentioned that he’d been born in Louisiana. He was then transferred to American soil, first to the naval brig in Norfolk, Virginia, then to the brig in Charleston, South Carolina. The government alleged that he had fought with the Taliban, an assertion a federal district court judge found unsubstantiated, based on “little more than the government’s say-so.” His father contended in court papers that his twenty-year-old son, traveling for the first time alone, had gone to do “relief work” and had been “trapped in Afghanistan once that military campaign began.”
Hamdi had no lawyer and got one only because of a brief newspaper report that he had been flown from Guantánamo to Norfolk via Virginia’s Dulles Airport. The item was seen by the federal public defender in Virginia, Frank Dunham, Jr., who asked the court to be appointed counsel, then filed a habeas corpus petition on Hamdi’s behalf. But Dunham was not allowed to see his client until the case had worked its way up to the Supreme Court, and the brief was due. That was the government’s pattern: stall until the verge of embarrassment and defeat in the highest court, then yield as little as possible.
The conservative Fourth Circuit had ruled that Hamdi had no right to challenge, and the judiciary had no power to examine, his designation as an enemy combatant under which Bush claimed the authority to hold him indefinitely without charge, counsel, or trial. The government argued, remarkably, that such a detainee had sufficient opportunity during interrogation to deny that he was a combatant—that is, while possibly being tortured by the “enhanced interrogation techniques” that the government had secretly authorized.
In normal times, it could have been naturally assumed that no legitimate court could possibly have endorsed such an argument. But these were not normal times, and so those who cared about noble principles were reduced to awkward celebration when the Supreme Court reversed the Fourth Circuit and declared the obvious: that “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”
It was a mixed opinion, however, interpreted by the left and the right to suit their own purposes. Two overlapping majorities of the justices ruled that American citizens could be held as enemy combatants, under the measure passed by Congress a week after September 11 authorizing the president to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the attacks. However, the other majority found that since Congress had not suspended habeas corpus, the Fifth Amendment’s due process clause also gave a prisoner the right to challenge the detention. “There is no bar to this Nation’s holding one of its own citizens as an enemy combatant,” wrote Justice Sandra Day O’Connor, but only “once it is sufficiently clear that the individual is, in fact, an enemy combatant.” That finding may be made with looser standards than in a criminal court, the opinion continued, including second-hand evidence and a presumpti
on of guilt, standards that could be employed by military commissions.27
Some conservatives took heart from this, most notably John Yoo, author of the infamous torture memo, who said that he saw it as “a 50-percent win for the government,” affirming its power to hold citizens as enemy combatants as long as some form of judicial review is accorded. By contrast, however, the most erudite conservative on the Court, Antonin Scalia, joined by the liberal John Paul Stevens, scoffed that the plurality of justices, “as though writing a new Constitution, comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a ‘neutral’ military officer rather than the judge and jury.”
Liberals focused on the fact that Hamdi had won his right to contest his imprisonment, and they hailed the most widely quoted line in O’Connor’s opinion: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”28
After the decision, Dunham went to the military to negotiate Hamdi’s release, and four months later, the malignant enemy combatant turned suddenly benign, harmless enough to go free. With no solid evidence against him, the Bush administration dodged the Court-ordered fact-finding process by deporting him to Saudi Arabia. In exchange, Hamdi renounced the American citizenship that he had acquired automatically at birth in Louisiana, and which he’d never known was his until the military had told him so. Unlike Dunham, who called his own American citizenship “the most important and valuable thing to me in my life, the last thing I would give up,” Hamdi felt that he was giving up nothing and gaining everything that mattered at that moment: an end to his imprisonment, which had lasted three years without charges. He also agreed to live in Saudi Arabia for five years; never travel to Afghanistan, Iraq, Israel, Syria, or Pakistan; and not sue the U.S. government.29
The Rights of the People Page 39