Wednesday, September 14, 2011 5:19:47 AM
Justice in a Time of Terror: Heroes and Goats
U.S. Army Military police escort a detainee to his cell in Naval Base Guantanamo Bay in 2002.
Reuters
This is the first of a three-part series on the legal aspects of the war on terror 10 years after the attacks of September 11, 2001. Part Two [next below] will focus upon the different ways in which the three branches of government responded to the challenges of the era. Part Three [second below] will offer an overview -- a terror law history -- of the past 10 years.
Andrew Cohen [ http://www.theatlantic.com/andrew-cohen/ ]
Aug 30 2011, 1:45 PM ET
Part One: Heroes and Goats
When political scientists and legal scholars talk about the impact of the events of 9/11 upon the "rule of law," they often speak in abstract terms, as if the constitutional mechanisms in place automatically crank from one gear to another depending upon external events. But nothing that followed from the rubble of the Pentagon and the World Trade Center was constitutionally inevitable. Each policy choice the United States made, each legal path it chose or had chosen for it, came from the hearts and minds of men and women, fallible creatures all, in most cases challenged as they had never been before in their professional lives.
Ten years later, as law and policy muddles through the messy aftermath of that awful day, as new actors emerge to replace the old ones, here are some of the people who distinguished themselves, for better or for worse, in shaping America's legal response to the War on Terror. History may not yet have fully rendered her judgments on these matters, but I have. The heroes deserve our praise; the goats our scorn. But all in their own way have brought us to where we are today.
The Heroes
Mark and Joshua Denbeaux. Father and son, lawyer and professor, who have tirelessly worked [ http://www.washingtonpost.com/wp-dyn/content/article/2006/11/29/AR2006112901260.html ] to chronicle the allegations [ http://law.shu.edu/publications/guantanamoReports/guantanamo_report_final_2_08_06.pdf ] against the detainees at Guantanamo Bay. They didn't just take the government's word for it. They looked through the U.S. military's own records to highlight the lack of proof evident against the vast majority of the men down there. Their scholarship played an important role in changing public perceptions about the prison and its functions.
Associate Justice of the U.S. Supreme Court Sandra Day O'Connor. Lady Justice, the Reagan appointee, was at her best in June 2004 when she wrote the first Supreme Court ruling checking President Bush's power to wage the war on terror. Here's the famous passage [ http://www.law.cornell.edu/supct/html/03-6696.ZO.html ] from Hamdi v. Rumsfeld:
In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. 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.
James Comey and John Ashcroft. In the early days following 9/11, Attorney General John Ashcroft was best known for his theatrical press conferences in which he overhyped [ http://www.cbsnews.com/stories/2009/03/31/opinion/courtwatch/main4906271.shtml ] the arrests of the "20th Hijacker" (who wasn't [ http://www.cbsnews.com/stories/2004/04/23/opinion/courtwatch/main613507.shtml ]) and the "dirty-bomber" (who wasn't [ http://www.cbsnews.com/stories/2005/11/22/opinion/courtwatch/main1070025.shtml ]). But he and his deputy James Comey make the "hero" list for standing up to [ http://www.theatlantic.com/politics/archive/2010/02/revisiting-a-famous-hospital-confrontation/35429/ ] their fellow Bush-era officials (see below) in that Washington hospital room in March 2004 with the nation's domestic surveillance program on the line.
U.S. District Judge Leonie M. Brinkema. She is the federal judge who presided over the conspiracy trial of Zacarias Moussaoui, so far the most important terror suspect tried in federal court after September 11, 2001. Judge Brinkema put up with a great deal of crap from the addled defendant, and from hapless prosecutors who nearly fumbled the case (remember Carla Martin [ http://blog.washingtonpost.com/benchconference/2006/07/carla_martin_is_still_in_troub.html ]?), but she delivered a sentencing trial that was both fair to Moussaoui and to the Justice Department.
Keith Allred and Peter Brownback. In December 2007, these military judges at Guantanamo Bay ruled [ http://blog.washingtonpost.com/benchconference/2007/12/my_latest_legal_hero.html ] in two separate cases that the Bush-era tribunals for terror detainees did not comply with the requirements of the Geneva Convention. The United States Supreme Court ultimately agreed. Brownback ultimately was removed from the case [ http://www.cbc.ca/news/world/story/2008/05/29/judge-khadr.html ] for his stand.
U.S. District Judge Joyce Hens Green. In January 2005, she issued one of the most memorable rulings [ http://www.cbsnews.com/stories/2005/01/31/opinion/courtwatch/main670659.shtml ] of the post-9/11 period, one that has since been obscured by the dust of time. Judge Green called out military officials for their Orwellian examination of terror suspect Mustafa Ait Idr. U.S. officials accused Idr of associating with a "well-known" Al Qaeda operative -- but then refused to give Idr the name of the so-called "operative" when Idr asked. "How can I answer a question about whether I know someone or not," Idr asked his captors, "if you won't tell me who it is I am supposed to know?"
Charles Swift. The Navy lawyer who lost out on his promotion and was forced out of the service [ http://www.npr.org/templates/story/story.php?storyId=6256039 ] because he successfully represented [ http://blog.washingtonpost.com/benchconference/2007/02/a_hero_in_every_sense_of_the_w.html ] detainee Salim Ahmed Hamdan in federal court and because he later opposed the Military Commissions Act of 2006. Swift was correct both times -- the Supreme Court stuck down the law and ruled in Hamdan's favor. This military man acted with great honor and integrity.
Chief U.S. District Judge William Young. His remarks to Richard Reid, the so-called "shoe bomber," will live long past our time [ http://www.nytimes.com/2003/01/31/us/threats-responses-bomb-plot-unrepentant-shoe-bomber-given-life-sentence-for.html ]. As Reid was being sentenced to life in prison for trying to blow up an airplane with his shoe, he talked back to Judge Young. "I am at war with your country," Reid shouted in court. "You are not an enemy combatant," Judge Young replied, "you are a terrorist. You are not a soldier in any army, you are a terrorist. To call you a soldier gives you far too much stature. You are a terrorist and we do not negotiate with terrorists. We hunt them down one by one and bring them to justice."
Zacarias Moussaoui's federal jury in Alexandria, Virginia. These folks endured a long 2006 trial of a defendant who was so obnoxious [ http://www.vanityfair.com/online/daily/2009/08/a-little-farce-in-a-sea-of-hate ] that even Khalid Sheik Mohammed didn't want him part of the 9/11 bomb plot. Moussaoui practically begged jurors to recommend a death sentence for him so that he could become a martyr. No dice, said the jury. Moussaoui is currently serving a life sentence without parole at the Supermax federal prison near Florence, Colorado, where he is in solitary lockdown 23 hours a day.
Sgt. Joe Darby. He's the whistleblower [ http://www.npr.org/templates/story/story.php?storyId=5651609 ] who first told military investigators about the torture and abuse [ http://www.cbsnews.com/stories/2006/12/07/60minutes/main2238188.shtml ] at the Abu Ghraib prison in Baghdad. "I've always had a moral sense of right and wrong. And I knew that you know, friends or not, it had to stop," Darby told Anderson Cooper in 2006.
The Goats
Alberto Gonzales and Andrew Card. Like bagmen for the Mob, these two then-White House officials showed up at John Ashcroft's hospital room on the night [ http://www.washingtonpost.com/wp-dyn/content/article/2007/05/15/AR2007051500864.html ] of March 10, 2004, seeking to get the ailing attorney general to sign off on an extension of the National Security Agency's secret "terrorist surveillance" program. When they were caught, by deputy AG James Comey, they later pretended [ http://www.slate.com/id/2166213/ ] they were there just to wish Ashcroft well.
Lynndie England and Charles Graner. As a technical matter it's surely relevant that these [ http://en.wikipedia.org/wiki/Lynndie_England ] two [ http://en.wikipedia.org/wiki/Charles_Graner ] were said to be following "orders" at the Abu Ghraib prison in Baghdad. As a practical matter, there is no excuse for the way in which [ http://www.hbo.com/documentaries/ghosts-of-abu-ghraib/index.html ] they and others treated those Iraqi prisoners. If the Abu Ghraib scandal marks the nadir [ http://www.newyorker.com/archive/2004/05/10/040510fa_fact ] of America's legal response to the war on terror, England and Graner are at the heart of it, symbols of so much of what went wrong.
Jose Rodriguez. The CIA official who unlawfully ordered the destruction of evidence -- including videotapes of secret interrogation sessions -- never had to publicly answer for his conduct (the Justice Department announced last year [ http://www.politicsdaily.com/2010/11/09/cia-destroys-terror-interrogation-evidence-and-justice-looks/ ] that it would not prosecute anyone involved in the scandal). But guess what? Rodriguez is going to make money off his ignominy. He's writing a book that will be published in 2012 in which he'll reportedly claim [ http://spytalkblog.blogspot.com/2011/05/ex-cia-official-jose-rodriguez-inks.html ] that torture led directly to the killing of Osama bin Laden.
Dick Cheney, David Addington, and John Yoo. These former Bush officials, architects of the nation's torture policies, remain adamantly unaccountable for and unrepentent about the damage they caused to the rule of law and America's standing in the world. As George Will noted [ http://blogs.abcnews.com/politicalpunch/2011/08/this-week-this-week-8282011.html ] Sunday, Cheney's memoirs were remarkably devoid of any apologies (for the war in Iraq, for example) and John Yoo, in a recent interview hawking his book, refused to say he would have done things differently when drafting the so-called 'torture memos."
Eric Holder. The current Attorney General failed to deliver [ http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer ] on his one big chance to bring 9/11 plotter Khalid Sheik Mohammed to a federal trial -- even though hundreds of other terror suspects both before and after 9/11 have been successfully prosecuted in civilian court. Ever since, his Justice Department and the White House have kowtowed to fear-mongering from conservatives in Congress, who practically fell over themselves praising President George W. Bush's similar charging decisions in terror cases.
Sen. Lindsey Graham (R- South Carolina). It's long past time the former military prosecutor was called to account [ http://www.theatlantic.com/politics/archive/2010/02/a-joke-right-congress-moves-to-end-startlingly-successful-federal-program/35208/ ] for his record. He has consistently [ http://www.dailykos.com/story/2010/03/16/846902/-Lindsey-Grahams-Third-Strike ] been on the wrong side of the law, and of history, when it comes to the tribunal rights of the detainees at Guantanamo Bay. Without his meddling, most notably in helping to pass the failed Detainee Treatment Act of 2005 [ http://en.wikipedia.org/wiki/Detainee_Treatment_Act ] and the failed Military Commissions Act of 2006 [ http://www.salon.com/news/opinion/glenn_greenwald/2008/04/27/mccain/index.html ], it's possible the Gitmo tribunals long ago would have started churning out verdicts.
Charles "Cully" Stimson and Liz Cheney. He's the former Bush official who, in 2007, infamously threatened [ http://www.washingtonpost.com/wp-dyn/content/article/2007/01/16/AR2007011601344.html ] the private law firms who were dutifully supplying lawyers pro bono to some of the detainees (who of course could not pay for their own defense). He had to resign in disgrace. She's the daughter of the former vice-president who, in 2010, blasted [ http://legaltimes.typepad.com/blt/2010/03/by-mike-scarcella-and-david-ingram----the-intensifying-flap-over-justice-department-lawyers-who-have-advocated-for-guantanamo.html ] as the "al-Qaeda Seven" a group of Justice Department lawyers who had once, as private attorneys working for law firms, helped represent some of the detainees in federal court cases. History will not judge this pair kindly.
President Barack Obama. In the interest of political comity, he told the nation in 2009 that he wanted to "look forward, not back [ http://www.nybooks.com/blogs/nyrblog/2010/nov/18/obamas-torture-problem/ ]" when it came to the Bush administration's torture policies. So there was no national "Truth Commission." There were no congressional hearings. There were no criminal prosecutions. No one was held to account [ http://www.theatlantic.com/magazine/archive/2009/10/dear-president-bush/7663/ ]. And what did the president receive for this controversial display of forgiveness? Congressional Republicans (and some Democrats) voted to block the Justice Department from transfering terror detainees [ http://www.theatlantic.com/national/archive/2011/06/at-gitmo-back-to-the-future-for-khalid-sheik-mohammed/239720/ ] out of Gitmo so they could be tried in federal civilian court.
Jose Padilla's federal jury in Miami. At first, Padilla was the "dirty bomber," a terror suspect so dangerous that he could not be given his constitutional rights as an American citizen. When the courts called the Bush Administration's bluff, federal prosecutors tried Padilla instead on terror conspiracy charges (from activity that occurred well before 9/11) in South Florida. After a three-month long trial in which the government presented a woefully weak case against Padilla, a Miami jury deliberated less than a day and a half [ http://www.cbsnews.com/stories/2007/08/15/opinion/courtwatch/main3168949.shtml ] before convicting him and his co-defendants.
The Federal Bureau of Investigation. Taking undue advantage of the extraordinarly broad powers granted to it under the USA Patriot Act and other measures, the FBI in the years immediately following 9/11 inappropriately tracked [ http://www.theatlantic.com/national/archive/2010/09/oig-fbi-inappropriately-tracked-domestic-advocacy-groups/63276/ ] domestic advocacy groups like PETA and Greenpeace. Worse, according to a 2010 report [ http://www.justice.gov/oig/special/s1009r.pdf ] by the Office of Inspector General, G-men were sent on "make work" missions during "slow" periods of work.
Copyright © 2011 by The Atlantic Monthly Group
http://www.theatlantic.com/national/archive/2011/08/justice-in-a-time-of-terror-heroes-and-goats/244283/ [with comments]
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Justice In a Time of Terror: Bending The Branches
AP Images
This is the second of a three-part series looking at the legal War on Terror since September 11, 2001. Part I [above] focused upon some of the heroes and villains of the story so far. Part II looks at the ways in which each of the three branches of government reacted to the legal challenges posed by the attacks. Part III [below] will offer a personal overview.
Andrew Cohen
Sep 2 2011, 1:30 PM ET
Part II: Bending the Branches
It is axiomatic that the terror attacks of 9/11 fundamentally altered the balance of power between the three branches of government. For nearly three years following the assault, while the death and destruction was freshest in the minds of those who lived through it, and while al-Qaeda posed its greatest threat to national security, Congress eagerly ceded vast power and authority to the executive branch. The judiciary almost without exception bowed to the wishes of administration officials and their functionaries. And President George W. Bush successfully convinced a wounded and angry American populace that a different kind of war required new and different kinds of war powers for the executive branch. This period lasted 1,031 days, from September 11, 2001, until June 28, 2004. Let's call it the Age of Fear.
That day in June seven years ago was an extraordinary pivot point in our nation's history. Not only did Iraq's interim government take control [ http://www.pbs.org/newshour/bb/middle_east/jan-june04/sovereignty_6-28.html ] that day of the beleaguered, fractious nation, but the United States Supreme Court handed down Hamdi v. Rumsfeld [ http://www.law.cornell.edu/supct/html/03-6696.ZS.html ], the first of four terror law rulings against the Bush administration. From June 28, 2004, until January 20, 2009, the day Barack Obama was sworn into office, the balance of power over the legal War on Terror gradually began to shift back toward its traditional plumb line. Congress began to redirect or shun some executive branch priorities. The lower federal courts began to reject some White House arguments. And the American people began to again express their discomfort with the notion of an imperial and imperious presidency. This period lasted 1,667 days. Let's call it the Age of Doubt.
The inauguration of President Obama marked the latest turning point in the legal War on Terror. Congress has become openly hostile to executive branch policies and priorities, precluding [ http://www.washingtonpost.com/wp-dyn/content/article/2010/12/12/AR2010121202957.html ] the current administration from achieving objectives which were routinely endorsed during each of the previous two Ages. As the reactive branch of government, the federal judiciary has been disinclined to get too closely involved. Meanwhile, the White House itself checked some of its own power and authority in the legal War on Terror. It has sought for political and diplomatic purposes to withdraw from some of the excessive ground staked out by the Bush Administration. This period so far has lasted 955 days, from January 20, 2009, to September 2, 2011. Let's call this the Age of Reckoning.
It has been 3,643 days since the Twin Towers fell. Although many legal questions remain unresolved, the constitutional crisis created by the events of 9/11 is largely over. The crest of presidential power, for now, has ebbed. But there has not been, and there cannot ever be, a simple resetting of the balance between the branches to what existed before September 11, 2001. The Obama administration has not ceded back most of the authority the Bush Administration was given or took for itself immediately following the attacks -- take, for example, its relentless use of Predator drones [ http://www.nytimes.com/2009/03/17/business/17uav.html?pagewanted=all ] to kill suspected Al Qaeda operatives -- and no future president ever likely will. The federal courts have not unwound the many decisions which endorsed and legitimized much of that authority. And no one seems to be clamoring for a return to the "old days" along the terror law front.
Here are some of the highlights, or lowlights, of how we got from there to here.
Article I: The Congress
In the beginning, there was the Authorization for Use of Military Force [ http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html ]. Instead of a formal Declaration of War, Congress on September 18, 2001 -- exactly one week after the Twin Towers fell -- gave President George W. Bush and his executive branch sweeping power to:
use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
This provision is the Tree of Life to the legal War on Terror since 9/11. From it has sprung the legal (or political) justification for virtually every controversial American policy or act that has followed, from the memos that authorized the torture of terror law prisoners to the directives that justified extraordinary rendition and secret prisons [ http://www.hrw.org/sites/default/files/reports/us0711webwcover.pdf ] to the executive orders that spawned warrantless domestic surveillance [ http://www.pbs.org/newshour/indepth_coverage/terrorism/homeland/questions.html ]. There has been a great deal of scholarship from the right and from the left about whether the September 18, 2001, AUMF gave the executive branch more power or less power to wage the War on Terror than a formal Congressional declaration of war might have given. But there is no dispute that the broad language of the AUMF gave the executive branch essentially a carte blanche ("all necessary and appropriate force") to implement the tactics it chose to implement.
With the adoption of this measure, Congress effectively acceded to the Bush White House its oversight role over the War on Terror. But as a practical matter the AUMF alone still wasn't enough for proponents of the unitary executive theory [ http://www.boston.com/news/politics/politicalintelligence/2008/03/unitary_executi.html ]. That autumn, as the United States invaded Afghanistan to root out the Taliban and Al Qaeda there, the Bush administration asked the legislative branch to pass affirmative and specific authorization for broad new powers of surveillance, detention, and punishment. And the lawmakers complied. On October 26, 2001, just five weeks after the AUMF went into effect, Congress passed the USA Patriot Act [ http://en.wikipedia.org/wiki/USA_PATRIOT_Act ], a huge bit of bipartisan federal legislation which dramatically altered for all Americans the balance between liberty and security, privacy, and government intrusion.
The Patriot Act has generated far more political controversy than it has legal trouble for its drafters and supporters. Despite legitimate concerns from civil libertarians, and rulings from lower federal court judges [ http://www.washingtonpost.com/wp-dyn/articles/A59626-2004Sep29.html ] around the nation, the Supreme Court has consistently upheld [ http://www.csmonitor.com/USA/Justice/2010/0621/Supreme-Court-upholds-controversial-part-of-Patriot-Act ] its provisions (or at least refused to overrule them). And just a few months ago [ http://www.washingtonpost.com/politics/patriot-act-extension-signed-into-law-despite-bipartisan-resistance-in-congress/2011/05/27/AGbVlsCH_story.html ], President Obama signed into law an extension of some of the Act's key provisions, a sign that the voluminous legislation, passed in the dark of night by many lawmakers who had never bothered to read it, remains politically viable today. A plurality of the American people seem to like [ http://www.tnr.com/blog/the-study/89142/patriot-act-polls-mixed-obama ], or at least are willing to tolerate [ http://pewresearch.org/pubs/1893/poll-patriot-act-renewal ], even the Act's most controversial provisions.
Both the AUMF and the Patriot Act became the law of the land within 45 days of the terror attacks on America -- at the very start of the Age of Fear. And yet they remain today the most significant Congressional contributions to the legal War on Terror. Save for its authorization for the war in Iraq [ http://en.wikipedia.org/wiki/Iraq_Resolution ], never again in the ten years since 9/11 would Congress empower the machinations of the executive branch in such sweeping terms. Having gone so far in undermining the principle of federal checks and balances, having given President Bush, Vice President Dick Cheney, David Addington [ http://www.newyorker.com/archive/2006/07/03/060703fa_fact1 ], and John Yoo virtually everything they had asked for in those early dark days, the legislative branch essentially needed to go no further.
Indeed, during the Age of Doubt, Congress seemed content to nibble around the edges of terror law. It began to try to take back some of the control it had so eagerly given to the executive branch and to re-assert itself against an emboldened judiciary. For example, after the Supreme Court's ruling in Hamdi v. Rumsfeld [ http://www.law.cornell.edu/supct/html/03-6696.ZS.html ], a case about whether terror suspects had a right of access to civilian courts, the lawmakers passed the Detainee Treatment Act of 2005 [ http://en.wikipedia.org/wiki/Detainee_Treatment_Act ], a law which explicitly stripped the men of their power to seek redress in federal court. Similiarly, in 2006, after another Supreme Court ruling that went against the Bush White House, Congress passed the Military Commissions Act [ http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006 ], which sought to re-start the failed military tribunal system. In 2008, the Supreme Court struck down both [ http://www.cbsnews.com/8301-18567_162-4177296.html ] of these laws.
Then came the Age of Reckoning. Congress passed a new military commissions act, again seeking to strike the proper constitutional balance between giving terror law detainees due process rights and protecting national security interests. And the lawmakers blocked with great relish and fanfare [ http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer ] the Obama Administration's efforts to prosecute 9/11 planner Khalid Sheik Mohammed in federal civilian court in New York. Such meddling in the discretion of the Justice Department's charging decisions would have been unthinkable during the Age of Fear. And the government's most successful terror law prosecutions since 9/11 (Zacarias Moussaoui in Virginia, Jose Padilla in Florida) occurred during the Age of Doubt. Yet in our current Age the executive branch was turned back by its sister branch even as President Obama was planning the successful attack [ http://www.newyorker.com/reporting/2011/08/08/110808fa_fact_schmidle ] that resulted in the death of Osama bin Laden.
Article II: The White House
The terrorists who struck us on September 11, 2001, were bold, quick, and clever and millions of words have been written [ http://www.9-11commission.gov/report/911Report.pdf ] over the past 3,643 days about how they outfoxed America's lumbering, outdated intelligence apparatus. So one of the early perceived lessons of the attacks was the need for speed, for a sort of deftness in prosecuting the War on Terror that had been lacking during previous administrations (don't forget, when it was hunting bin Laden, the Clinton White House unsuccessfully asked Congress [ http://www.foreignaffairs.com/articles/60849/martha-crenshaw/counterterrorism-in-retrospect?page=show ] for many of the terror law changes ultimately included in the Patriot Act).
Another early lesson was more fundamental: crime and punishment as America had known it for centuries was inapt and inept against cells like al-Qaeda. Rather than punishing terrorists for the crimes they had committed, rather than waiting for a mass casualty event caused by suicidal suspects who likely wouldn't be around for trial anyway, the government would have to do more to prevent the crimes in the first place. This is why so many terror suspects have been arrested and charged before they have come close to implementing their alleged plots; the feds say there is no margin for error or time to wait when thousands of lives (or more) may be at stake.
If al-Qaeda was part criminal conspiracy, part army of God, part terror organization, and part business venture, the United States would have to adopt hybrid legal measures to combat the practical threats posed by the group. The murkiness of our enemies begat a murkiness of our legal principles and a level of secrecy for executive branch policies that defied objective review from the other two branches of government. If there were no internment camps this time around, there was the extralegal roundup of hundreds [ http://www.commondreams.org/headlines01/1013-01.htm ] of Muslims on material witness warrants. And there was Maher Arar [ http://www.google.com/search?q=maher+arar&rls=com.microsoft:en-us&ie=UTF-8&oe=UTF-8&startIndex=&startPage=1 ], the Canadian citizen whose rendition and torture story encompasses so many of the excesses of its time.
During the Age of Fear, the Bush administration freely blended the presidency's traditional war powers, which are constitutionally broad anyway, with its traditional law enforcement powers, which were far more circumscribed. The USA Patriot Act, to cite just one example, gave the White House explicit permission [ http://findarticles.com/p/articles/mi_m2194/is_6_72/ai_105477700/pg_2/?tag=mantle_skin;content ] to breach the wall separating foreign intelligence gathering and domestic law enforcement surveillance. The Foreign Intelligence Surveillance Act [ http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act ] was altered to make it easier for the police to spy on citizens without a prior court order. Since the battlefield, technically, was everywhere, sweeping presidential power was allowed to creep into all corners of American life. Your phone conversations can be monitored. Your bank accounts searched. Your emails evaluated by intelligence officials.
Alas, during this period, the executive branch did what many governments throughout history have done when given sudden swaths of unchecked power; it went too far. It pushed beyond the boundaries which its many constituents were willing to accept or abide. The AUMF of September 18, 2001, was cited as a basis for the "torture memos [ http://www.nytimes.com/ref/international/24MEMO-GUIDE.html ]," drafted by White House lawyers to justify waterboarding and other forms of "enhanced interrogation." Executive branch policies toward Iraqi detainees led to the scandal [ http://www.newyorker.com/archive/2004/05/10/040510fa_fact ] at the Abu Ghraib prison. Foreign nationals were "rendered [ http://www.pbs.org/frontlineworld/stories/rendition701/ ]" to secret prisons, where they were tortured in contravention of international law. And a 2002 executive order [ http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all ] went beyond even the new FISA and Patriot Act laws to allow warrantless surveillance of American citizens.
Some of these excesses were known to the world on June 28, 2004, when Supreme Court Justice Sandra Day O'Connor declared in Hamdi v. Rumseld that the War on Terror did not give President Bush "a blank check" to trample the constitutional rights of U.S. citizens. But the Court's majority ruling that day gave both legal and political cover to civil libertarians, lower court judges, and others to more forcefully challenge some of the executive branch assertions that had been all but rubber-stamped immediately after the terror attacks. The Age of Doubt had begun. Three more times -- from 2006 to 2008 -- the conservative Supreme Court would rebuff the administration's terror law plans.
The Age of Reckoning began with the new president pledging, among other things, to close the odious terror law prison [ http://www.cbsnews.com/stories/2009/01/11/national/main4713038.shtml ] at Guantanamo Bay, Cuba. That it is not yet closed -- indeed, that its continued existence seems more assured now than ever -- is the clearest indication yet that presidential power over the War on Terror has waned; that it has given way to some of the same old partisan furies that existed before the Twin Towers fell. A Congress that dared not object to President Bush's most controversial policies-- which included releasing terror detainees back [ http://articles.latimes.com/2004/aug/16/opinion/oe-cohen16 ] to their native countries on a promise of good behavior-- now has raised its back up against some of President Obama's efforts to similarly end the American experience at Gitmo.
So it took less than 10 years for "politics as usual" to again dominate terror law policies. In fact, it took less time for traditional "checks and balances" to regain their predominance than it has taken to successfully prosecute the two living men most reponsible for the attacks of September 11, 2001, Khalid Sheik Mohammed [ http://www.theatlantic.com/magazine/archive/2009/11/khalid-sheik-mohammed-and-you/7786/ ] and Ramzi Binalshibh [ http://blog.washingtonpost.com/benchconference/2006/10/who_wants_to_be_ramzi_binalshi.html ]. Having long ago confessed their roles in the 9/11 attack, they are still at Guantanamo, in legal limbo, waiting for the day when American officials finally process them through the system and send them to their ultimate destination.
Article III: The Judiciary
At first, when it came to terror law matters, federal judges across the country accepted as Gospel the pronouncements offered in court and in court papers by the executive branch. They universally acquiesced to claims by the Bush Administration that the presidency's inherent constitutional war powers, and those expressly given to it by Congress under the AUMF and the Patriot Act, should alone resolve the question of which investigation should proceed or which terror law suspect should be detained. Don't worry your pretty little heads about it, the White House told the judiciary, over and over again.
Comparing the War on Terror to traditional wars, citing precedent from the Civil War [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0071_0002_ZS.html ] to World War II [ http://www.oyez.org/cases/1940-1949/1941/1941_1_ORIG ], the judiciary by and large in the Age of Fear abdicated one of its core constitutional functions; that of interjecting itself squarely and ufairly between the individual and the state. You can today still understand, or perhaps even remember, the concern: no judge wanted to be the one to second-guess military officials and prematurely release a deadly terrorist. No judge wanted to thwart a counter-terror investigation in its nascency. Better safe than sorry, judge after judge ruled in case after case, when all anyone had to evaluate the merits of the case were the words of government officials.
Take Yaser Esam Hamdi, the American citizen apprehended in Afghanistan in the months following the attacks on America. As we have seen, Hamdi ultimately won his due process case before the Supreme Court. But in 2002 and 2003, as his case wound through the federal courts, he might as well have been the main character in a Kafka play. Here [ http://pacer.ca4.uscourts.gov/opinion.pdf/027338.P.pdf ] is the link to a January 2003 ruling by 4th U.S. Circuit Court of Appeals -- it would never come down the same way today. The judges were unwilling to allow Hamdi to have access to his own lawyer. They were unwilling to conduct a meaningful evaluation of the allegations against him. As far as the court was concerned, Hamdi was a prisoner of an ongoing war.
Gradually, however, federal judges began to rediscover their inquisitive nature. It wasn't because they had changed their view of the mandates of the Constitution. It wasn't just because the Supreme Court in 2004 had stood up to the Bush White House. It was because, in terror law cases from coast [ http://www.cbsnews.com/stories/2002/07/14/opinion/courtwatch/main515096.shtml ] to coast [ http://www.cbsnews.com/stories/2005/01/31/opinion/courtwatch/main670659.shtml ], judges began to notice a gulf [ http://www.cbsnews.com/stories/2008/02/25/opinion/courtwatch/main3875776.shtml ] between what executive branch officials were asserting in court and what the objective truth was revealing beyond the courtroom. A credibility gap emerged. The White House had consistently cried wolf. Many detainees turned out either to be low-level criminals or simply victims of circumstances or tribal feuds.
And Hamdi? After years of solemnly proclaiming him to be a dangerous terrorist, after swearing in court that he was too menancing even to be allowed assistance of counsel, the Bush White House suddenly released him and sent him to Saudi Arabia a free man. Never mind [ http://www.revleft.com/vb/crying-wolf-war-t24908/index.html ], the executive branch said when it came to this iconic terror suspect.
As the Age of Fear passed into the Age of Doubt on into the Age of Reckoning, the judiciary began to look more closely at the evidence in terror law cases. Judges began to ask in court many of the tough questions they had long asked in regular criminal cases, challenging with less much deference the broad government assertions they had earlier allowed to pass uncontested. In many instances, from domestic surveillance [ http://www.washingtonpost.com/wp-dyn/content/article/2007/07/06/AR2007070600779.html ] to governmental immunity [ http://articles.latimes.com/2011/jun/10/opinion/la-ed-immunity-20110610 ], the White House and Congress were still was able to convince the courts to protect federal interests over individual challenges. But the balance became more familiar; after all, even before September 11, 2001, the government almost always won in court when terror law issues were raised.
Because the judicial branch is a reactive branch -- because the federal courts may only accept or decline the cases that are brought to it -- it is difficult to compare its response to 9/11 with the repsonse offered by the executive and legislative branches. For example, even though the Supreme Court has repeatedly told [ http://www.law.cornell.edu/supct/html/06-1195.ZS.html ] the White House and Congress that it's been wrong on the rules governing military tribunals, it has persistently failed to give those other branches specific guidance on how the rules should be fixed. And while some federal judges even early on bravely challenged the most dubious White House policies, many more were content to take the path of least resistance. In this respect, I suppose, they were no different than the rest of us.
So, ten years after the deadliest criminal act in the history of the United States, the transformation of American law is not yet complete. It has not yet become what it will eventually be. We still don't have military commission rules that have passed constitutional muster. We still haven't prosecuted any of the men directly responsible for the attacks on America. We still don't have a final reckoning on the scope of police power to eavesdrop on virtually every facet of our lives. We still don't know the scope of the government's secret prisons [ http://www.theatlantic.com/politics/archive/2010/05/inside-the-secret-interrogation-facility-at-bagram/56678/ ] program. As former Secretary of State Donald Rumsfeld may have put it, we still don't know what we don't know about all the rest of it.
In the meantime, for better and for worse, the unity of public purpose that accompanied the early post-9/11 period (on terror law and virtually everything else) has given way to partisan bickering. You can argue that this is a good thing -- that our beloved system of "checks and balances" has finally returned. Or you can argue this is a bad thing -- that the paralytic impact of gridlock will cause in ways we cannot yet know some catastrophic failure of the sort that helped make September 11, 2001, one of the worst days in the life of our nation. It's a debate we will likely all be struggling with ten years from now.
Copyright © 2011 by The Atlantic Monthly Group
http://www.theatlantic.com/national/archive/2011/09/justice-in-a-time-of-terror-bending-the-branches/244343/ [ http://www.theatlantic.com/national/archive/2011/09/justice-in-a-time-of-terror-bending-the-branches/244343/?single_page=true ] [with comments]
===
Justice in a Time of Terror: Be Not Afraid
Zacarias Moussaoui (L), a French citizen of Moroccan descent was the first person indicted for involvement in 9/11
(Reuters)
This is the final piece of a three-part series looking at the legal War on Terror since September 11, 2001. Part I [first above] focused upon some of the heroes and villains of the story so far. Part II [above] looked at the interconnected ways in which each of the three branches of government reacted to the legal challenges posed by the attacks.
Andrew Cohen
Sep 8 2011, 2:36 PM ET
Part III: Be Not Afraid
On March 18, 2003, the day America went to war against Iraq, I posted this piece [ http://www.cbsnews.com/stories/2003/03/18/opinion/courtwatch/main544423.shtml ] about Zacarias Moussaoui, the man U.S. officials had initially claimed was the "20th hijacker" of September 11, 2001. Moussaoui, you may recall, was arrested in Minnesota on August 11, 2001, exactly one month before the Twin Towers fell, because he was trying to learn to fly commercial planes without learning how to take off or to land. He was in custody on 9/11.
The piece at CBSNews.com, working off fine reporting by CBS News Correspondent Jim Stewart, focused upon the fact that the (recently captured) 9/11 mastermind Khalid Sheik Mohammed had reportedly told his captors that Moussaoui was not part of the 9/11 plot. The headline (which I did not write) of the piece was: "Is Moussaoui Small Fry?" In federal custody at the time, Moussaoui was given the piece by the attorneys who were working with him.
Soon thereafter, as was his way, Moussaoui filed his own hand-written motion with U.S. District Judge Leonie M. Brinkema asking to be given certain additional due process rights. He cited my column, identified me as "the Jew Cohen," and argued that "if even mine (sic) worst enemy, 'the Jew Cohen' thinks I ought to have more constitutional rights then I ought to have more constitutional rights." It was an instant classic. I have a copy still in my files.
Curious that I had captured the attention of a confessed al-Qaeda soldier, I called Frank Dunham, then the federal public defender in Alexandria, Virginia, and asked him what he thought. "Yeah, you definitely made the list," Dunham told me. "You're probably 50th on the list of people he wants to get, I'm in front of you, and if he gets all the way to you we're in bigger trouble than we think," he said, laughing the whole time.
I
Dunham, a great lawyer and a wonderful man, is now gone. He died of brain cancer in November 2006. Moussaoui is gone too. He's serving a life sentence without parole at the Supermax facility near Florence, Colorado, where he spends 23 hours a day in solitary lockdown. But the "small fry" episode has stuck with me through the years because Dunham understood what so many of us have not about the makeup of al-Qaeda's "soldiers of God."
The terrorists who struck us on 9/11 were suicidal and soulless and they did a monstrously evil thing. But they were not of another world. They were not superhuman (or subhuman) monsters. They did not possess extraordinary powers of intelligence, skill, or cunning. That their plot against America succeeded beyond even their wildest imaginations earns them no extra credit. In many ways, they were as lucky as their innocent victims were unlucky.
What Dunham understood, and what is so lamentably missing from so much public discourse about terror law these days, is the notion that the terrorists we fight today, the ones we have captured and the ones who still elude us, are more like criminals than warriors [ http://www.theatlantic.com/international/archive/2011/09/was-declaring-war-on-terror-a-mistake/244667/ ], more like thugs than high priests of violence. Of course they pose a threat. But they are all just men. Mortal, fallible, and now mostly incarcerated. Cons, not pros. We shouldn't pretend otherwise.
America has a long, ugly history of demonizing its enemies, especially when they look, act, and speak differently than most Americans. The country was cruel to Germans in World War I and to the Japanese in World War II. And for the past 10 years now xenophobia has found a new calling: the dehumanization of Muslims, both the vast majority who are innocent and the tiny fraction who are not. It's time we stopped indulging in such national insecurity.
II
No civilian will likely ever again hear from or lay eyes upon Zacarias Moussaoui. But I am here to tell you, since Dunham can't, that the convicted terror conspirator was largely a buffoon. He was such a pain in the butt to Khalid Sheik Mohammed -- he kept calling KSM on a cell-phone -- that the 9/11 mastermind basically fired him from the 9/11 terror plot. Yes, Moussaoui was a proud member of al-Qaeda. But his federal jury in Virginia saw through [ http://www.cbsnews.com/stories/2006/05/03/opinion/courtwatch/main1584751.shtml ] his bluster.
Richard Reid? He is the fellow who tried but failed to light his shoe on fire in an attempt to take down a civilian airplane. When he piped up in court, U.S. Chief District Judge William Young dressed him down [ http://www.freerepublic.com/focus/f-news/969614/posts ] and sent him to prison for life without any supper. Jose Padilla, the once-upon-a-time "dirty bomber"? Anyone who closely followed [ http://www.cbsnews.com/8301-500803_162-2686478-500803.html ] his 2007 trial in Miami understands how little fire existed beneath Attorney General John Ashcroft's smoke [ http://articles.cnn.com/2002-06-10/us/ashcroft.announcement_1_dirty-bomb-abdullah-al-muhajir-al-qaeda-officials?_s=PM:US ].
How about the single most important al-Qaeda leader ever captured since 9/11? When Khalid Sheik Mohammed was apprehended in Pakistan on March 1, 2003, he was fast asleep. The first photograph of him after 9/11 has him looking almost exactly like Ron Jeremy [ http://en.wikipedia.org/wiki/Ron_Jeremy ], the legendary porn star. Just look at this guy! Yes, he was and perhaps still is dangerous. But if America in 2011 still is fearful of the likes of him, it's more on us than it is on him.
Khalid Sheikh Mohammed after his arrest in 2003
Reuters
[via http://articles.nydailynews.com/2011-04-25/news/29492085_1_wikileaks-nuclear-hellstorm-nuclear-bomb ]
Speaking of porn, when justice finally came to Osama bin Laden himself in Abbottabad, Pakistan, he was hiding in a house where at least one computer had pornographic images on it. In Scarface [ http://en.wikipedia.org/wiki/Scarface_%281983_film%29 ], Al Pacino went down fighting. John Dillinger had the moxie [ http://en.wikipedia.org/wiki/John_Dillinger ] to be out on a date when he was gunned down. Tim McVeigh died with his eyes open. Bin Laden? His wives were throwing themselves [ http://www.newyorker.com/reporting/2011/08/08/110808fa_fact_schmidle ] in front of him when the Navy Seal bullets flew.
III
By disparaging the prowess of some of the terrorists we know about, I don't mean to diminish the meaning of 9/11 or to discount the current threat to our friends, families, and interests. There is nothing funny about any of this, whether you are victim of the terror attacks or a victim of what has ensued. Instead, I'm here to suggest an end to the Decade of Fear. Over. Finished. We should be vigilant. We should be stern. But we should no longer be afraid.
That is why the recent tactics of men like Senator John McCain are so discouraging. He wants to treat all terror law suspects under military law, foregoing completely the FBI and civilian trials. What a terrible idea. As the second decade of our war on terror begins, America shouldn't go backwards toward irrational fear of al-Qaeda. It shouldn't be elevating these men into super villains. It shouldn't be getting less tolerant of the Muslim minority in this country.
Enough already! The men behind what's left of al-Qaeda are unworthy of the denudation of our core constitutional rights. Our leaders should stop peddling hatred and fear to the American people, and we ought to stop indulging in convenient and popular prejudices toward Muslims and Islam. It's 2011. We survived. We've largely prevailed. Yahoos like Moussaoui didn't beat us, and they never will. On terror law, we have nothing to fear but fear itself.
If Frank Dunham were alive today, if I may be so bold to say so, he would be appalled at the uptick in anti-Muslim sentiment so many years after 9/11. He would think it absurd that Congress would have vitiated the role of federal courts in terror cases. And he would be treating his al-Qaeda clients for what they are, a bunch of zealous losers who more or less deserve the same rights as any other suspected crooks. He wouldn't be afraid. He never was.
Copyright © 2011 by The Atlantic Monthly Group (emphasis in original)
http://www.theatlantic.com/national/archive/2011/09/justice-in-a-time-of-terror-be-not-afraid/244241/ [with comments]
U.S. Army Military police escort a detainee to his cell in Naval Base Guantanamo Bay in 2002.
Reuters
This is the first of a three-part series on the legal aspects of the war on terror 10 years after the attacks of September 11, 2001. Part Two [next below] will focus upon the different ways in which the three branches of government responded to the challenges of the era. Part Three [second below] will offer an overview -- a terror law history -- of the past 10 years.
Andrew Cohen [ http://www.theatlantic.com/andrew-cohen/ ]
Aug 30 2011, 1:45 PM ET
Part One: Heroes and Goats
When political scientists and legal scholars talk about the impact of the events of 9/11 upon the "rule of law," they often speak in abstract terms, as if the constitutional mechanisms in place automatically crank from one gear to another depending upon external events. But nothing that followed from the rubble of the Pentagon and the World Trade Center was constitutionally inevitable. Each policy choice the United States made, each legal path it chose or had chosen for it, came from the hearts and minds of men and women, fallible creatures all, in most cases challenged as they had never been before in their professional lives.
Ten years later, as law and policy muddles through the messy aftermath of that awful day, as new actors emerge to replace the old ones, here are some of the people who distinguished themselves, for better or for worse, in shaping America's legal response to the War on Terror. History may not yet have fully rendered her judgments on these matters, but I have. The heroes deserve our praise; the goats our scorn. But all in their own way have brought us to where we are today.
The Heroes
Mark and Joshua Denbeaux. Father and son, lawyer and professor, who have tirelessly worked [ http://www.washingtonpost.com/wp-dyn/content/article/2006/11/29/AR2006112901260.html ] to chronicle the allegations [ http://law.shu.edu/publications/guantanamoReports/guantanamo_report_final_2_08_06.pdf ] against the detainees at Guantanamo Bay. They didn't just take the government's word for it. They looked through the U.S. military's own records to highlight the lack of proof evident against the vast majority of the men down there. Their scholarship played an important role in changing public perceptions about the prison and its functions.
Associate Justice of the U.S. Supreme Court Sandra Day O'Connor. Lady Justice, the Reagan appointee, was at her best in June 2004 when she wrote the first Supreme Court ruling checking President Bush's power to wage the war on terror. Here's the famous passage [ http://www.law.cornell.edu/supct/html/03-6696.ZO.html ] from Hamdi v. Rumsfeld:
In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. 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.
James Comey and John Ashcroft. In the early days following 9/11, Attorney General John Ashcroft was best known for his theatrical press conferences in which he overhyped [ http://www.cbsnews.com/stories/2009/03/31/opinion/courtwatch/main4906271.shtml ] the arrests of the "20th Hijacker" (who wasn't [ http://www.cbsnews.com/stories/2004/04/23/opinion/courtwatch/main613507.shtml ]) and the "dirty-bomber" (who wasn't [ http://www.cbsnews.com/stories/2005/11/22/opinion/courtwatch/main1070025.shtml ]). But he and his deputy James Comey make the "hero" list for standing up to [ http://www.theatlantic.com/politics/archive/2010/02/revisiting-a-famous-hospital-confrontation/35429/ ] their fellow Bush-era officials (see below) in that Washington hospital room in March 2004 with the nation's domestic surveillance program on the line.
U.S. District Judge Leonie M. Brinkema. She is the federal judge who presided over the conspiracy trial of Zacarias Moussaoui, so far the most important terror suspect tried in federal court after September 11, 2001. Judge Brinkema put up with a great deal of crap from the addled defendant, and from hapless prosecutors who nearly fumbled the case (remember Carla Martin [ http://blog.washingtonpost.com/benchconference/2006/07/carla_martin_is_still_in_troub.html ]?), but she delivered a sentencing trial that was both fair to Moussaoui and to the Justice Department.
Keith Allred and Peter Brownback. In December 2007, these military judges at Guantanamo Bay ruled [ http://blog.washingtonpost.com/benchconference/2007/12/my_latest_legal_hero.html ] in two separate cases that the Bush-era tribunals for terror detainees did not comply with the requirements of the Geneva Convention. The United States Supreme Court ultimately agreed. Brownback ultimately was removed from the case [ http://www.cbc.ca/news/world/story/2008/05/29/judge-khadr.html ] for his stand.
U.S. District Judge Joyce Hens Green. In January 2005, she issued one of the most memorable rulings [ http://www.cbsnews.com/stories/2005/01/31/opinion/courtwatch/main670659.shtml ] of the post-9/11 period, one that has since been obscured by the dust of time. Judge Green called out military officials for their Orwellian examination of terror suspect Mustafa Ait Idr. U.S. officials accused Idr of associating with a "well-known" Al Qaeda operative -- but then refused to give Idr the name of the so-called "operative" when Idr asked. "How can I answer a question about whether I know someone or not," Idr asked his captors, "if you won't tell me who it is I am supposed to know?"
Charles Swift. The Navy lawyer who lost out on his promotion and was forced out of the service [ http://www.npr.org/templates/story/story.php?storyId=6256039 ] because he successfully represented [ http://blog.washingtonpost.com/benchconference/2007/02/a_hero_in_every_sense_of_the_w.html ] detainee Salim Ahmed Hamdan in federal court and because he later opposed the Military Commissions Act of 2006. Swift was correct both times -- the Supreme Court stuck down the law and ruled in Hamdan's favor. This military man acted with great honor and integrity.
Chief U.S. District Judge William Young. His remarks to Richard Reid, the so-called "shoe bomber," will live long past our time [ http://www.nytimes.com/2003/01/31/us/threats-responses-bomb-plot-unrepentant-shoe-bomber-given-life-sentence-for.html ]. As Reid was being sentenced to life in prison for trying to blow up an airplane with his shoe, he talked back to Judge Young. "I am at war with your country," Reid shouted in court. "You are not an enemy combatant," Judge Young replied, "you are a terrorist. You are not a soldier in any army, you are a terrorist. To call you a soldier gives you far too much stature. You are a terrorist and we do not negotiate with terrorists. We hunt them down one by one and bring them to justice."
Zacarias Moussaoui's federal jury in Alexandria, Virginia. These folks endured a long 2006 trial of a defendant who was so obnoxious [ http://www.vanityfair.com/online/daily/2009/08/a-little-farce-in-a-sea-of-hate ] that even Khalid Sheik Mohammed didn't want him part of the 9/11 bomb plot. Moussaoui practically begged jurors to recommend a death sentence for him so that he could become a martyr. No dice, said the jury. Moussaoui is currently serving a life sentence without parole at the Supermax federal prison near Florence, Colorado, where he is in solitary lockdown 23 hours a day.
Sgt. Joe Darby. He's the whistleblower [ http://www.npr.org/templates/story/story.php?storyId=5651609 ] who first told military investigators about the torture and abuse [ http://www.cbsnews.com/stories/2006/12/07/60minutes/main2238188.shtml ] at the Abu Ghraib prison in Baghdad. "I've always had a moral sense of right and wrong. And I knew that you know, friends or not, it had to stop," Darby told Anderson Cooper in 2006.
The Goats
Alberto Gonzales and Andrew Card. Like bagmen for the Mob, these two then-White House officials showed up at John Ashcroft's hospital room on the night [ http://www.washingtonpost.com/wp-dyn/content/article/2007/05/15/AR2007051500864.html ] of March 10, 2004, seeking to get the ailing attorney general to sign off on an extension of the National Security Agency's secret "terrorist surveillance" program. When they were caught, by deputy AG James Comey, they later pretended [ http://www.slate.com/id/2166213/ ] they were there just to wish Ashcroft well.
Lynndie England and Charles Graner. As a technical matter it's surely relevant that these [ http://en.wikipedia.org/wiki/Lynndie_England ] two [ http://en.wikipedia.org/wiki/Charles_Graner ] were said to be following "orders" at the Abu Ghraib prison in Baghdad. As a practical matter, there is no excuse for the way in which [ http://www.hbo.com/documentaries/ghosts-of-abu-ghraib/index.html ] they and others treated those Iraqi prisoners. If the Abu Ghraib scandal marks the nadir [ http://www.newyorker.com/archive/2004/05/10/040510fa_fact ] of America's legal response to the war on terror, England and Graner are at the heart of it, symbols of so much of what went wrong.
Jose Rodriguez. The CIA official who unlawfully ordered the destruction of evidence -- including videotapes of secret interrogation sessions -- never had to publicly answer for his conduct (the Justice Department announced last year [ http://www.politicsdaily.com/2010/11/09/cia-destroys-terror-interrogation-evidence-and-justice-looks/ ] that it would not prosecute anyone involved in the scandal). But guess what? Rodriguez is going to make money off his ignominy. He's writing a book that will be published in 2012 in which he'll reportedly claim [ http://spytalkblog.blogspot.com/2011/05/ex-cia-official-jose-rodriguez-inks.html ] that torture led directly to the killing of Osama bin Laden.
Dick Cheney, David Addington, and John Yoo. These former Bush officials, architects of the nation's torture policies, remain adamantly unaccountable for and unrepentent about the damage they caused to the rule of law and America's standing in the world. As George Will noted [ http://blogs.abcnews.com/politicalpunch/2011/08/this-week-this-week-8282011.html ] Sunday, Cheney's memoirs were remarkably devoid of any apologies (for the war in Iraq, for example) and John Yoo, in a recent interview hawking his book, refused to say he would have done things differently when drafting the so-called 'torture memos."
Eric Holder. The current Attorney General failed to deliver [ http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer ] on his one big chance to bring 9/11 plotter Khalid Sheik Mohammed to a federal trial -- even though hundreds of other terror suspects both before and after 9/11 have been successfully prosecuted in civilian court. Ever since, his Justice Department and the White House have kowtowed to fear-mongering from conservatives in Congress, who practically fell over themselves praising President George W. Bush's similar charging decisions in terror cases.
Sen. Lindsey Graham (R- South Carolina). It's long past time the former military prosecutor was called to account [ http://www.theatlantic.com/politics/archive/2010/02/a-joke-right-congress-moves-to-end-startlingly-successful-federal-program/35208/ ] for his record. He has consistently [ http://www.dailykos.com/story/2010/03/16/846902/-Lindsey-Grahams-Third-Strike ] been on the wrong side of the law, and of history, when it comes to the tribunal rights of the detainees at Guantanamo Bay. Without his meddling, most notably in helping to pass the failed Detainee Treatment Act of 2005 [ http://en.wikipedia.org/wiki/Detainee_Treatment_Act ] and the failed Military Commissions Act of 2006 [ http://www.salon.com/news/opinion/glenn_greenwald/2008/04/27/mccain/index.html ], it's possible the Gitmo tribunals long ago would have started churning out verdicts.
Charles "Cully" Stimson and Liz Cheney. He's the former Bush official who, in 2007, infamously threatened [ http://www.washingtonpost.com/wp-dyn/content/article/2007/01/16/AR2007011601344.html ] the private law firms who were dutifully supplying lawyers pro bono to some of the detainees (who of course could not pay for their own defense). He had to resign in disgrace. She's the daughter of the former vice-president who, in 2010, blasted [ http://legaltimes.typepad.com/blt/2010/03/by-mike-scarcella-and-david-ingram----the-intensifying-flap-over-justice-department-lawyers-who-have-advocated-for-guantanamo.html ] as the "al-Qaeda Seven" a group of Justice Department lawyers who had once, as private attorneys working for law firms, helped represent some of the detainees in federal court cases. History will not judge this pair kindly.
President Barack Obama. In the interest of political comity, he told the nation in 2009 that he wanted to "look forward, not back [ http://www.nybooks.com/blogs/nyrblog/2010/nov/18/obamas-torture-problem/ ]" when it came to the Bush administration's torture policies. So there was no national "Truth Commission." There were no congressional hearings. There were no criminal prosecutions. No one was held to account [ http://www.theatlantic.com/magazine/archive/2009/10/dear-president-bush/7663/ ]. And what did the president receive for this controversial display of forgiveness? Congressional Republicans (and some Democrats) voted to block the Justice Department from transfering terror detainees [ http://www.theatlantic.com/national/archive/2011/06/at-gitmo-back-to-the-future-for-khalid-sheik-mohammed/239720/ ] out of Gitmo so they could be tried in federal civilian court.
Jose Padilla's federal jury in Miami. At first, Padilla was the "dirty bomber," a terror suspect so dangerous that he could not be given his constitutional rights as an American citizen. When the courts called the Bush Administration's bluff, federal prosecutors tried Padilla instead on terror conspiracy charges (from activity that occurred well before 9/11) in South Florida. After a three-month long trial in which the government presented a woefully weak case against Padilla, a Miami jury deliberated less than a day and a half [ http://www.cbsnews.com/stories/2007/08/15/opinion/courtwatch/main3168949.shtml ] before convicting him and his co-defendants.
The Federal Bureau of Investigation. Taking undue advantage of the extraordinarly broad powers granted to it under the USA Patriot Act and other measures, the FBI in the years immediately following 9/11 inappropriately tracked [ http://www.theatlantic.com/national/archive/2010/09/oig-fbi-inappropriately-tracked-domestic-advocacy-groups/63276/ ] domestic advocacy groups like PETA and Greenpeace. Worse, according to a 2010 report [ http://www.justice.gov/oig/special/s1009r.pdf ] by the Office of Inspector General, G-men were sent on "make work" missions during "slow" periods of work.
Copyright © 2011 by The Atlantic Monthly Group
http://www.theatlantic.com/national/archive/2011/08/justice-in-a-time-of-terror-heroes-and-goats/244283/ [with comments]
===
Justice In a Time of Terror: Bending The Branches
AP Images
This is the second of a three-part series looking at the legal War on Terror since September 11, 2001. Part I [above] focused upon some of the heroes and villains of the story so far. Part II looks at the ways in which each of the three branches of government reacted to the legal challenges posed by the attacks. Part III [below] will offer a personal overview.
Andrew Cohen
Sep 2 2011, 1:30 PM ET
Part II: Bending the Branches
It is axiomatic that the terror attacks of 9/11 fundamentally altered the balance of power between the three branches of government. For nearly three years following the assault, while the death and destruction was freshest in the minds of those who lived through it, and while al-Qaeda posed its greatest threat to national security, Congress eagerly ceded vast power and authority to the executive branch. The judiciary almost without exception bowed to the wishes of administration officials and their functionaries. And President George W. Bush successfully convinced a wounded and angry American populace that a different kind of war required new and different kinds of war powers for the executive branch. This period lasted 1,031 days, from September 11, 2001, until June 28, 2004. Let's call it the Age of Fear.
That day in June seven years ago was an extraordinary pivot point in our nation's history. Not only did Iraq's interim government take control [ http://www.pbs.org/newshour/bb/middle_east/jan-june04/sovereignty_6-28.html ] that day of the beleaguered, fractious nation, but the United States Supreme Court handed down Hamdi v. Rumsfeld [ http://www.law.cornell.edu/supct/html/03-6696.ZS.html ], the first of four terror law rulings against the Bush administration. From June 28, 2004, until January 20, 2009, the day Barack Obama was sworn into office, the balance of power over the legal War on Terror gradually began to shift back toward its traditional plumb line. Congress began to redirect or shun some executive branch priorities. The lower federal courts began to reject some White House arguments. And the American people began to again express their discomfort with the notion of an imperial and imperious presidency. This period lasted 1,667 days. Let's call it the Age of Doubt.
The inauguration of President Obama marked the latest turning point in the legal War on Terror. Congress has become openly hostile to executive branch policies and priorities, precluding [ http://www.washingtonpost.com/wp-dyn/content/article/2010/12/12/AR2010121202957.html ] the current administration from achieving objectives which were routinely endorsed during each of the previous two Ages. As the reactive branch of government, the federal judiciary has been disinclined to get too closely involved. Meanwhile, the White House itself checked some of its own power and authority in the legal War on Terror. It has sought for political and diplomatic purposes to withdraw from some of the excessive ground staked out by the Bush Administration. This period so far has lasted 955 days, from January 20, 2009, to September 2, 2011. Let's call this the Age of Reckoning.
It has been 3,643 days since the Twin Towers fell. Although many legal questions remain unresolved, the constitutional crisis created by the events of 9/11 is largely over. The crest of presidential power, for now, has ebbed. But there has not been, and there cannot ever be, a simple resetting of the balance between the branches to what existed before September 11, 2001. The Obama administration has not ceded back most of the authority the Bush Administration was given or took for itself immediately following the attacks -- take, for example, its relentless use of Predator drones [ http://www.nytimes.com/2009/03/17/business/17uav.html?pagewanted=all ] to kill suspected Al Qaeda operatives -- and no future president ever likely will. The federal courts have not unwound the many decisions which endorsed and legitimized much of that authority. And no one seems to be clamoring for a return to the "old days" along the terror law front.
Here are some of the highlights, or lowlights, of how we got from there to here.
Article I: The Congress
In the beginning, there was the Authorization for Use of Military Force [ http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html ]. Instead of a formal Declaration of War, Congress on September 18, 2001 -- exactly one week after the Twin Towers fell -- gave President George W. Bush and his executive branch sweeping power to:
use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
This provision is the Tree of Life to the legal War on Terror since 9/11. From it has sprung the legal (or political) justification for virtually every controversial American policy or act that has followed, from the memos that authorized the torture of terror law prisoners to the directives that justified extraordinary rendition and secret prisons [ http://www.hrw.org/sites/default/files/reports/us0711webwcover.pdf ] to the executive orders that spawned warrantless domestic surveillance [ http://www.pbs.org/newshour/indepth_coverage/terrorism/homeland/questions.html ]. There has been a great deal of scholarship from the right and from the left about whether the September 18, 2001, AUMF gave the executive branch more power or less power to wage the War on Terror than a formal Congressional declaration of war might have given. But there is no dispute that the broad language of the AUMF gave the executive branch essentially a carte blanche ("all necessary and appropriate force") to implement the tactics it chose to implement.
With the adoption of this measure, Congress effectively acceded to the Bush White House its oversight role over the War on Terror. But as a practical matter the AUMF alone still wasn't enough for proponents of the unitary executive theory [ http://www.boston.com/news/politics/politicalintelligence/2008/03/unitary_executi.html ]. That autumn, as the United States invaded Afghanistan to root out the Taliban and Al Qaeda there, the Bush administration asked the legislative branch to pass affirmative and specific authorization for broad new powers of surveillance, detention, and punishment. And the lawmakers complied. On October 26, 2001, just five weeks after the AUMF went into effect, Congress passed the USA Patriot Act [ http://en.wikipedia.org/wiki/USA_PATRIOT_Act ], a huge bit of bipartisan federal legislation which dramatically altered for all Americans the balance between liberty and security, privacy, and government intrusion.
The Patriot Act has generated far more political controversy than it has legal trouble for its drafters and supporters. Despite legitimate concerns from civil libertarians, and rulings from lower federal court judges [ http://www.washingtonpost.com/wp-dyn/articles/A59626-2004Sep29.html ] around the nation, the Supreme Court has consistently upheld [ http://www.csmonitor.com/USA/Justice/2010/0621/Supreme-Court-upholds-controversial-part-of-Patriot-Act ] its provisions (or at least refused to overrule them). And just a few months ago [ http://www.washingtonpost.com/politics/patriot-act-extension-signed-into-law-despite-bipartisan-resistance-in-congress/2011/05/27/AGbVlsCH_story.html ], President Obama signed into law an extension of some of the Act's key provisions, a sign that the voluminous legislation, passed in the dark of night by many lawmakers who had never bothered to read it, remains politically viable today. A plurality of the American people seem to like [ http://www.tnr.com/blog/the-study/89142/patriot-act-polls-mixed-obama ], or at least are willing to tolerate [ http://pewresearch.org/pubs/1893/poll-patriot-act-renewal ], even the Act's most controversial provisions.
Both the AUMF and the Patriot Act became the law of the land within 45 days of the terror attacks on America -- at the very start of the Age of Fear. And yet they remain today the most significant Congressional contributions to the legal War on Terror. Save for its authorization for the war in Iraq [ http://en.wikipedia.org/wiki/Iraq_Resolution ], never again in the ten years since 9/11 would Congress empower the machinations of the executive branch in such sweeping terms. Having gone so far in undermining the principle of federal checks and balances, having given President Bush, Vice President Dick Cheney, David Addington [ http://www.newyorker.com/archive/2006/07/03/060703fa_fact1 ], and John Yoo virtually everything they had asked for in those early dark days, the legislative branch essentially needed to go no further.
Indeed, during the Age of Doubt, Congress seemed content to nibble around the edges of terror law. It began to try to take back some of the control it had so eagerly given to the executive branch and to re-assert itself against an emboldened judiciary. For example, after the Supreme Court's ruling in Hamdi v. Rumsfeld [ http://www.law.cornell.edu/supct/html/03-6696.ZS.html ], a case about whether terror suspects had a right of access to civilian courts, the lawmakers passed the Detainee Treatment Act of 2005 [ http://en.wikipedia.org/wiki/Detainee_Treatment_Act ], a law which explicitly stripped the men of their power to seek redress in federal court. Similiarly, in 2006, after another Supreme Court ruling that went against the Bush White House, Congress passed the Military Commissions Act [ http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006 ], which sought to re-start the failed military tribunal system. In 2008, the Supreme Court struck down both [ http://www.cbsnews.com/8301-18567_162-4177296.html ] of these laws.
Then came the Age of Reckoning. Congress passed a new military commissions act, again seeking to strike the proper constitutional balance between giving terror law detainees due process rights and protecting national security interests. And the lawmakers blocked with great relish and fanfare [ http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer ] the Obama Administration's efforts to prosecute 9/11 planner Khalid Sheik Mohammed in federal civilian court in New York. Such meddling in the discretion of the Justice Department's charging decisions would have been unthinkable during the Age of Fear. And the government's most successful terror law prosecutions since 9/11 (Zacarias Moussaoui in Virginia, Jose Padilla in Florida) occurred during the Age of Doubt. Yet in our current Age the executive branch was turned back by its sister branch even as President Obama was planning the successful attack [ http://www.newyorker.com/reporting/2011/08/08/110808fa_fact_schmidle ] that resulted in the death of Osama bin Laden.
Article II: The White House
The terrorists who struck us on September 11, 2001, were bold, quick, and clever and millions of words have been written [ http://www.9-11commission.gov/report/911Report.pdf ] over the past 3,643 days about how they outfoxed America's lumbering, outdated intelligence apparatus. So one of the early perceived lessons of the attacks was the need for speed, for a sort of deftness in prosecuting the War on Terror that had been lacking during previous administrations (don't forget, when it was hunting bin Laden, the Clinton White House unsuccessfully asked Congress [ http://www.foreignaffairs.com/articles/60849/martha-crenshaw/counterterrorism-in-retrospect?page=show ] for many of the terror law changes ultimately included in the Patriot Act).
Another early lesson was more fundamental: crime and punishment as America had known it for centuries was inapt and inept against cells like al-Qaeda. Rather than punishing terrorists for the crimes they had committed, rather than waiting for a mass casualty event caused by suicidal suspects who likely wouldn't be around for trial anyway, the government would have to do more to prevent the crimes in the first place. This is why so many terror suspects have been arrested and charged before they have come close to implementing their alleged plots; the feds say there is no margin for error or time to wait when thousands of lives (or more) may be at stake.
If al-Qaeda was part criminal conspiracy, part army of God, part terror organization, and part business venture, the United States would have to adopt hybrid legal measures to combat the practical threats posed by the group. The murkiness of our enemies begat a murkiness of our legal principles and a level of secrecy for executive branch policies that defied objective review from the other two branches of government. If there were no internment camps this time around, there was the extralegal roundup of hundreds [ http://www.commondreams.org/headlines01/1013-01.htm ] of Muslims on material witness warrants. And there was Maher Arar [ http://www.google.com/search?q=maher+arar&rls=com.microsoft:en-us&ie=UTF-8&oe=UTF-8&startIndex=&startPage=1 ], the Canadian citizen whose rendition and torture story encompasses so many of the excesses of its time.
During the Age of Fear, the Bush administration freely blended the presidency's traditional war powers, which are constitutionally broad anyway, with its traditional law enforcement powers, which were far more circumscribed. The USA Patriot Act, to cite just one example, gave the White House explicit permission [ http://findarticles.com/p/articles/mi_m2194/is_6_72/ai_105477700/pg_2/?tag=mantle_skin;content ] to breach the wall separating foreign intelligence gathering and domestic law enforcement surveillance. The Foreign Intelligence Surveillance Act [ http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act ] was altered to make it easier for the police to spy on citizens without a prior court order. Since the battlefield, technically, was everywhere, sweeping presidential power was allowed to creep into all corners of American life. Your phone conversations can be monitored. Your bank accounts searched. Your emails evaluated by intelligence officials.
Alas, during this period, the executive branch did what many governments throughout history have done when given sudden swaths of unchecked power; it went too far. It pushed beyond the boundaries which its many constituents were willing to accept or abide. The AUMF of September 18, 2001, was cited as a basis for the "torture memos [ http://www.nytimes.com/ref/international/24MEMO-GUIDE.html ]," drafted by White House lawyers to justify waterboarding and other forms of "enhanced interrogation." Executive branch policies toward Iraqi detainees led to the scandal [ http://www.newyorker.com/archive/2004/05/10/040510fa_fact ] at the Abu Ghraib prison. Foreign nationals were "rendered [ http://www.pbs.org/frontlineworld/stories/rendition701/ ]" to secret prisons, where they were tortured in contravention of international law. And a 2002 executive order [ http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all ] went beyond even the new FISA and Patriot Act laws to allow warrantless surveillance of American citizens.
Some of these excesses were known to the world on June 28, 2004, when Supreme Court Justice Sandra Day O'Connor declared in Hamdi v. Rumseld that the War on Terror did not give President Bush "a blank check" to trample the constitutional rights of U.S. citizens. But the Court's majority ruling that day gave both legal and political cover to civil libertarians, lower court judges, and others to more forcefully challenge some of the executive branch assertions that had been all but rubber-stamped immediately after the terror attacks. The Age of Doubt had begun. Three more times -- from 2006 to 2008 -- the conservative Supreme Court would rebuff the administration's terror law plans.
The Age of Reckoning began with the new president pledging, among other things, to close the odious terror law prison [ http://www.cbsnews.com/stories/2009/01/11/national/main4713038.shtml ] at Guantanamo Bay, Cuba. That it is not yet closed -- indeed, that its continued existence seems more assured now than ever -- is the clearest indication yet that presidential power over the War on Terror has waned; that it has given way to some of the same old partisan furies that existed before the Twin Towers fell. A Congress that dared not object to President Bush's most controversial policies-- which included releasing terror detainees back [ http://articles.latimes.com/2004/aug/16/opinion/oe-cohen16 ] to their native countries on a promise of good behavior-- now has raised its back up against some of President Obama's efforts to similarly end the American experience at Gitmo.
So it took less than 10 years for "politics as usual" to again dominate terror law policies. In fact, it took less time for traditional "checks and balances" to regain their predominance than it has taken to successfully prosecute the two living men most reponsible for the attacks of September 11, 2001, Khalid Sheik Mohammed [ http://www.theatlantic.com/magazine/archive/2009/11/khalid-sheik-mohammed-and-you/7786/ ] and Ramzi Binalshibh [ http://blog.washingtonpost.com/benchconference/2006/10/who_wants_to_be_ramzi_binalshi.html ]. Having long ago confessed their roles in the 9/11 attack, they are still at Guantanamo, in legal limbo, waiting for the day when American officials finally process them through the system and send them to their ultimate destination.
Article III: The Judiciary
At first, when it came to terror law matters, federal judges across the country accepted as Gospel the pronouncements offered in court and in court papers by the executive branch. They universally acquiesced to claims by the Bush Administration that the presidency's inherent constitutional war powers, and those expressly given to it by Congress under the AUMF and the Patriot Act, should alone resolve the question of which investigation should proceed or which terror law suspect should be detained. Don't worry your pretty little heads about it, the White House told the judiciary, over and over again.
Comparing the War on Terror to traditional wars, citing precedent from the Civil War [ http://www.law.cornell.edu/supct/html/historics/USSC_CR_0071_0002_ZS.html ] to World War II [ http://www.oyez.org/cases/1940-1949/1941/1941_1_ORIG ], the judiciary by and large in the Age of Fear abdicated one of its core constitutional functions; that of interjecting itself squarely and ufairly between the individual and the state. You can today still understand, or perhaps even remember, the concern: no judge wanted to be the one to second-guess military officials and prematurely release a deadly terrorist. No judge wanted to thwart a counter-terror investigation in its nascency. Better safe than sorry, judge after judge ruled in case after case, when all anyone had to evaluate the merits of the case were the words of government officials.
Take Yaser Esam Hamdi, the American citizen apprehended in Afghanistan in the months following the attacks on America. As we have seen, Hamdi ultimately won his due process case before the Supreme Court. But in 2002 and 2003, as his case wound through the federal courts, he might as well have been the main character in a Kafka play. Here [ http://pacer.ca4.uscourts.gov/opinion.pdf/027338.P.pdf ] is the link to a January 2003 ruling by 4th U.S. Circuit Court of Appeals -- it would never come down the same way today. The judges were unwilling to allow Hamdi to have access to his own lawyer. They were unwilling to conduct a meaningful evaluation of the allegations against him. As far as the court was concerned, Hamdi was a prisoner of an ongoing war.
Gradually, however, federal judges began to rediscover their inquisitive nature. It wasn't because they had changed their view of the mandates of the Constitution. It wasn't just because the Supreme Court in 2004 had stood up to the Bush White House. It was because, in terror law cases from coast [ http://www.cbsnews.com/stories/2002/07/14/opinion/courtwatch/main515096.shtml ] to coast [ http://www.cbsnews.com/stories/2005/01/31/opinion/courtwatch/main670659.shtml ], judges began to notice a gulf [ http://www.cbsnews.com/stories/2008/02/25/opinion/courtwatch/main3875776.shtml ] between what executive branch officials were asserting in court and what the objective truth was revealing beyond the courtroom. A credibility gap emerged. The White House had consistently cried wolf. Many detainees turned out either to be low-level criminals or simply victims of circumstances or tribal feuds.
And Hamdi? After years of solemnly proclaiming him to be a dangerous terrorist, after swearing in court that he was too menancing even to be allowed assistance of counsel, the Bush White House suddenly released him and sent him to Saudi Arabia a free man. Never mind [ http://www.revleft.com/vb/crying-wolf-war-t24908/index.html ], the executive branch said when it came to this iconic terror suspect.
As the Age of Fear passed into the Age of Doubt on into the Age of Reckoning, the judiciary began to look more closely at the evidence in terror law cases. Judges began to ask in court many of the tough questions they had long asked in regular criminal cases, challenging with less much deference the broad government assertions they had earlier allowed to pass uncontested. In many instances, from domestic surveillance [ http://www.washingtonpost.com/wp-dyn/content/article/2007/07/06/AR2007070600779.html ] to governmental immunity [ http://articles.latimes.com/2011/jun/10/opinion/la-ed-immunity-20110610 ], the White House and Congress were still was able to convince the courts to protect federal interests over individual challenges. But the balance became more familiar; after all, even before September 11, 2001, the government almost always won in court when terror law issues were raised.
Because the judicial branch is a reactive branch -- because the federal courts may only accept or decline the cases that are brought to it -- it is difficult to compare its response to 9/11 with the repsonse offered by the executive and legislative branches. For example, even though the Supreme Court has repeatedly told [ http://www.law.cornell.edu/supct/html/06-1195.ZS.html ] the White House and Congress that it's been wrong on the rules governing military tribunals, it has persistently failed to give those other branches specific guidance on how the rules should be fixed. And while some federal judges even early on bravely challenged the most dubious White House policies, many more were content to take the path of least resistance. In this respect, I suppose, they were no different than the rest of us.
So, ten years after the deadliest criminal act in the history of the United States, the transformation of American law is not yet complete. It has not yet become what it will eventually be. We still don't have military commission rules that have passed constitutional muster. We still haven't prosecuted any of the men directly responsible for the attacks on America. We still don't have a final reckoning on the scope of police power to eavesdrop on virtually every facet of our lives. We still don't know the scope of the government's secret prisons [ http://www.theatlantic.com/politics/archive/2010/05/inside-the-secret-interrogation-facility-at-bagram/56678/ ] program. As former Secretary of State Donald Rumsfeld may have put it, we still don't know what we don't know about all the rest of it.
In the meantime, for better and for worse, the unity of public purpose that accompanied the early post-9/11 period (on terror law and virtually everything else) has given way to partisan bickering. You can argue that this is a good thing -- that our beloved system of "checks and balances" has finally returned. Or you can argue this is a bad thing -- that the paralytic impact of gridlock will cause in ways we cannot yet know some catastrophic failure of the sort that helped make September 11, 2001, one of the worst days in the life of our nation. It's a debate we will likely all be struggling with ten years from now.
Copyright © 2011 by The Atlantic Monthly Group
http://www.theatlantic.com/national/archive/2011/09/justice-in-a-time-of-terror-bending-the-branches/244343/ [ http://www.theatlantic.com/national/archive/2011/09/justice-in-a-time-of-terror-bending-the-branches/244343/?single_page=true ] [with comments]
===
Justice in a Time of Terror: Be Not Afraid
Zacarias Moussaoui (L), a French citizen of Moroccan descent was the first person indicted for involvement in 9/11
(Reuters)
This is the final piece of a three-part series looking at the legal War on Terror since September 11, 2001. Part I [first above] focused upon some of the heroes and villains of the story so far. Part II [above] looked at the interconnected ways in which each of the three branches of government reacted to the legal challenges posed by the attacks.
Andrew Cohen
Sep 8 2011, 2:36 PM ET
Part III: Be Not Afraid
On March 18, 2003, the day America went to war against Iraq, I posted this piece [ http://www.cbsnews.com/stories/2003/03/18/opinion/courtwatch/main544423.shtml ] about Zacarias Moussaoui, the man U.S. officials had initially claimed was the "20th hijacker" of September 11, 2001. Moussaoui, you may recall, was arrested in Minnesota on August 11, 2001, exactly one month before the Twin Towers fell, because he was trying to learn to fly commercial planes without learning how to take off or to land. He was in custody on 9/11.
The piece at CBSNews.com, working off fine reporting by CBS News Correspondent Jim Stewart, focused upon the fact that the (recently captured) 9/11 mastermind Khalid Sheik Mohammed had reportedly told his captors that Moussaoui was not part of the 9/11 plot. The headline (which I did not write) of the piece was: "Is Moussaoui Small Fry?" In federal custody at the time, Moussaoui was given the piece by the attorneys who were working with him.
Soon thereafter, as was his way, Moussaoui filed his own hand-written motion with U.S. District Judge Leonie M. Brinkema asking to be given certain additional due process rights. He cited my column, identified me as "the Jew Cohen," and argued that "if even mine (sic) worst enemy, 'the Jew Cohen' thinks I ought to have more constitutional rights then I ought to have more constitutional rights." It was an instant classic. I have a copy still in my files.
Curious that I had captured the attention of a confessed al-Qaeda soldier, I called Frank Dunham, then the federal public defender in Alexandria, Virginia, and asked him what he thought. "Yeah, you definitely made the list," Dunham told me. "You're probably 50th on the list of people he wants to get, I'm in front of you, and if he gets all the way to you we're in bigger trouble than we think," he said, laughing the whole time.
I
Dunham, a great lawyer and a wonderful man, is now gone. He died of brain cancer in November 2006. Moussaoui is gone too. He's serving a life sentence without parole at the Supermax facility near Florence, Colorado, where he spends 23 hours a day in solitary lockdown. But the "small fry" episode has stuck with me through the years because Dunham understood what so many of us have not about the makeup of al-Qaeda's "soldiers of God."
The terrorists who struck us on 9/11 were suicidal and soulless and they did a monstrously evil thing. But they were not of another world. They were not superhuman (or subhuman) monsters. They did not possess extraordinary powers of intelligence, skill, or cunning. That their plot against America succeeded beyond even their wildest imaginations earns them no extra credit. In many ways, they were as lucky as their innocent victims were unlucky.
What Dunham understood, and what is so lamentably missing from so much public discourse about terror law these days, is the notion that the terrorists we fight today, the ones we have captured and the ones who still elude us, are more like criminals than warriors [ http://www.theatlantic.com/international/archive/2011/09/was-declaring-war-on-terror-a-mistake/244667/ ], more like thugs than high priests of violence. Of course they pose a threat. But they are all just men. Mortal, fallible, and now mostly incarcerated. Cons, not pros. We shouldn't pretend otherwise.
America has a long, ugly history of demonizing its enemies, especially when they look, act, and speak differently than most Americans. The country was cruel to Germans in World War I and to the Japanese in World War II. And for the past 10 years now xenophobia has found a new calling: the dehumanization of Muslims, both the vast majority who are innocent and the tiny fraction who are not. It's time we stopped indulging in such national insecurity.
II
No civilian will likely ever again hear from or lay eyes upon Zacarias Moussaoui. But I am here to tell you, since Dunham can't, that the convicted terror conspirator was largely a buffoon. He was such a pain in the butt to Khalid Sheik Mohammed -- he kept calling KSM on a cell-phone -- that the 9/11 mastermind basically fired him from the 9/11 terror plot. Yes, Moussaoui was a proud member of al-Qaeda. But his federal jury in Virginia saw through [ http://www.cbsnews.com/stories/2006/05/03/opinion/courtwatch/main1584751.shtml ] his bluster.
Richard Reid? He is the fellow who tried but failed to light his shoe on fire in an attempt to take down a civilian airplane. When he piped up in court, U.S. Chief District Judge William Young dressed him down [ http://www.freerepublic.com/focus/f-news/969614/posts ] and sent him to prison for life without any supper. Jose Padilla, the once-upon-a-time "dirty bomber"? Anyone who closely followed [ http://www.cbsnews.com/8301-500803_162-2686478-500803.html ] his 2007 trial in Miami understands how little fire existed beneath Attorney General John Ashcroft's smoke [ http://articles.cnn.com/2002-06-10/us/ashcroft.announcement_1_dirty-bomb-abdullah-al-muhajir-al-qaeda-officials?_s=PM:US ].
How about the single most important al-Qaeda leader ever captured since 9/11? When Khalid Sheik Mohammed was apprehended in Pakistan on March 1, 2003, he was fast asleep. The first photograph of him after 9/11 has him looking almost exactly like Ron Jeremy [ http://en.wikipedia.org/wiki/Ron_Jeremy ], the legendary porn star. Just look at this guy! Yes, he was and perhaps still is dangerous. But if America in 2011 still is fearful of the likes of him, it's more on us than it is on him.
Khalid Sheikh Mohammed after his arrest in 2003
Reuters
[via http://articles.nydailynews.com/2011-04-25/news/29492085_1_wikileaks-nuclear-hellstorm-nuclear-bomb ]
Speaking of porn, when justice finally came to Osama bin Laden himself in Abbottabad, Pakistan, he was hiding in a house where at least one computer had pornographic images on it. In Scarface [ http://en.wikipedia.org/wiki/Scarface_%281983_film%29 ], Al Pacino went down fighting. John Dillinger had the moxie [ http://en.wikipedia.org/wiki/John_Dillinger ] to be out on a date when he was gunned down. Tim McVeigh died with his eyes open. Bin Laden? His wives were throwing themselves [ http://www.newyorker.com/reporting/2011/08/08/110808fa_fact_schmidle ] in front of him when the Navy Seal bullets flew.
III
By disparaging the prowess of some of the terrorists we know about, I don't mean to diminish the meaning of 9/11 or to discount the current threat to our friends, families, and interests. There is nothing funny about any of this, whether you are victim of the terror attacks or a victim of what has ensued. Instead, I'm here to suggest an end to the Decade of Fear. Over. Finished. We should be vigilant. We should be stern. But we should no longer be afraid.
That is why the recent tactics of men like Senator John McCain are so discouraging. He wants to treat all terror law suspects under military law, foregoing completely the FBI and civilian trials. What a terrible idea. As the second decade of our war on terror begins, America shouldn't go backwards toward irrational fear of al-Qaeda. It shouldn't be elevating these men into super villains. It shouldn't be getting less tolerant of the Muslim minority in this country.
Enough already! The men behind what's left of al-Qaeda are unworthy of the denudation of our core constitutional rights. Our leaders should stop peddling hatred and fear to the American people, and we ought to stop indulging in convenient and popular prejudices toward Muslims and Islam. It's 2011. We survived. We've largely prevailed. Yahoos like Moussaoui didn't beat us, and they never will. On terror law, we have nothing to fear but fear itself.
If Frank Dunham were alive today, if I may be so bold to say so, he would be appalled at the uptick in anti-Muslim sentiment so many years after 9/11. He would think it absurd that Congress would have vitiated the role of federal courts in terror cases. And he would be treating his al-Qaeda clients for what they are, a bunch of zealous losers who more or less deserve the same rights as any other suspected crooks. He wouldn't be afraid. He never was.
Copyright © 2011 by The Atlantic Monthly Group (emphasis in original)
http://www.theatlantic.com/national/archive/2011/09/justice-in-a-time-of-terror-be-not-afraid/244241/ [with comments]
Greensburg, KS - 5/4/07
"Eternal vigilance is the price of Liberty."
from John Philpot Curran, Speech
upon the Right of Election, 1790
F6
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