Wall Street Journal
'The Spirit of Liberty'
Before attacking the Patriot Act, try reading it.
BY MICHAEL B. MUKASEY
Monday, May 10, 2004 12:01 a.m. EDT
Learned Hand, among the last century's greatest judges, defined the spirit of liberty 60 years ago as "the spirit which is not too sure that it is right." We must consider what message we can take from those words today.
We are now in a struggle with an extremism that expresses itself in the form of terror attacks, and in that we face what is probably the gravest threat to this country's institutions, if not to its physical welfare, since the Civil War. When one tries to assess people who can find it in themselves to fly airplanes into buildings and murder 3,000 of us in a single morning, whatever else you can say about such people, they are very sure that they are right; and wouldn't it be music to their ears to hear that our spirit says we're not too sure that we are right?
What measures we should take to protect ourselves, both abroad and at home, is now the subject of heated debate as we participate in a war against extremism, not so much to make the world safe for democracy as to achieve a more modest-sounding but, I would suggest, no less important goal--to make the world safe for us. Regrettably, like many debates, our current one already has seen its share of half-truths and outright falsehoods.
They began right after Sept. 11, when some claimed that FBI agents were rounding up Muslim Arabs wholesale and holding them incommunicado. That accusation seems dubious on its face when you consider that the FBI has only about 12,000 agents world-wide. That is not many when you realize that they investigate not only terrorism, but also every other federal crime aside from counterfeiting, tax evasion and mail fraud; that they share responsibility for drug investigations with the Drug Enforcement Administration--a pretty hefty set of assignments--and that they had numerous leads as to those responsible for the attack on Sept. 11. Under those circumstances--with many leads to work on and relatively few agents to do that work--does it really stand to reason that they spent their time rounding people up based on nothing other than religion and ethnicity?
No doubt there were people taken into custody, whether on immigration warrants or material witness warrants, who in retrospect should not have been. If those people have grievances redressable under the law, those grievances can be redressed. But we should keep in mind that any investigation conducted by fallible human beings in the aftermath of an attack is bound to be either overinclusive or underinclusive. There are consequences both ways. The consequences of overinclusiveness include condemnations. The consequences of underinclusiveness include condolences.
More recently, a statute called the USA Patriot Act has become the focus of a good deal of hysteria, some of it reflexive, much of it recreational.
My favorite example is the well-publicized resolution of the American Library Association condemning what the librarians claim to believe is a section of the statute that authorizes the FBI to obtain library records and to investigate people based on the books they take out. Some of the membership have announced a policy of destroying records so that they do not fall into the hands of the FBI.
First a word on the organization that gives us this news. The motto of this organization is "Free people read freely." When it was called to their attention that there are 10 librarians languishing in Cuban prisons for encouraging their fellow countrymen to read freely, an imprisonment that has been condemned by Lech Walesa and Vaclav Havel, among others, this association declined to vote any resolution of condemnation, although they did find time at their convention to condemn their own government.
In addition to the library association, many towns and villages across the country, notably Berkeley, Calif., and Amherst, Mass., have announced that they will not cooperate with any effort to gather evidence under the statute. A former vice president has called for the statute's repeal, and a former presidential candidate has called the act "morally wrong," "shameful" and "unconstitutional."
I think one would have to concede that the USA Patriot Act has an awkward, even Orwellian, name, which is one of those Washington acronyms derived by calling the law "Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism." You get the impression they started with the acronym first, and then offered a $50 savings bond to whoever could come up with a name to fit. Without offering my view on any case or controversy, current or future, I think that that awkward name may very well be the worst thing about the statute.
Most of the provisions have nothing to do with the current debate, including provisions authorizing purchase of equipment for police departments and the like, and provisions tightening restrictions on money laundering, including restrictions on the export of currency, which is the lifeblood of terrorists. Recall that when Saddam Hussein was captured, he had with him $750,000 in $100 bills.
The statute also breaks down the wall that has separated intelligence gathering from criminal investigation. It allows intelligence information to be shared with criminal investigators, and information that criminal investigators unearth to be shared with those conducting intelligence investigations. I think many people would believe this makes sense, although a series of bureaucratic decisions and a stark misreading of the Foreign Intelligence Surveillance Act for years made this impossible, and thus prevented the government from fulfilling its most basic responsibility under the Constitution: "to provide for the common defense [and] promote the general Welfare."
What difference would this make? Well, there is one documented incident involving an FBI intelligence agent on the West Coast who was trying to find two men on a watch list who he realized had entered the country. He tried to get help from the criminal investigative side of the FBI, but headquarters intervened and said that was not allowed. That happened in August 2001. The two men he was looking for were named Khalid al-Midhar and Nawaf al-Hazmi. A few weeks later, on Sept. 11, they were at the controls of the airplane that struck the Pentagon. This provision of the statute, permitting information sharing, could not pass Congress without an agreement that it would sunset on Dec. 31, 2005, and so unless that provision is changed, come Jan. 1, 2006, we will be back to the rules that prevailed in August 2001.
The provisions in the law that have generated the most opposition have to do with investigative techniques, including electronic surveillance and the gathering of business records. The electronic surveillance provisions give investigators access to cable-based communications, such as e-mail, on the same basis as they have long had access to telephone communications, and give them access to telephone communications in national security cases on the same basis on which they already have such access in drug cases.
I think most people would have been surprised and somewhat dismayed to learn that before the Patriot Act was passed, an FBI agent could apply to a court for a roving wiretap if a drug dealer switched cell phones, as they often do, but not if an identified agent of a foreign terrorist organization did; and could apply for a wiretap to investigate illegal sports betting, but not to investigate a potentially catastrophic computer hacking attack, the killing of U.S. nationals abroad, or the giving of material support to a terrorist organization. Violations like those simply were not on the list of offenses for which wiretaps could be authorized.
The statute also codifies the procedure for issuing and executing what are called "sneak and peek" warrants that allow agents, with court authorization, to enter premises, examine what is there and then leave. These warrants had been issued by courts before the Patriot Act was passed, including my own court--although I have never issued one myself--on the fairly simple logic that if it is reasonable under the Fourth Amendment to enter premises and seize things, it should also be reasonable to enter premises and not seize things. The statute permits agents to delay disclosure of their presence to the person who controls the premises, again with court authorization. Here too, the logic seems obvious: If you leave behind a note saying "Good afternoon, Mr. bin Laden, we were here," that might betray the existence of an investigation and cause the subjects to flee or destroy evidence. There are analogous provisions that were in existence long before the Patriot Act permitting a delay in notifying people who are overheard on wiretaps, and for the same reason.
What about the section the librarians were so concerned about, Section 215? Well, it bears some mention that the word library appears nowhere in that section. What the section does authorize is the issuance of subpoenas for tangible things, including business records, but only upon approval by the Foreign Intelligence Surveillance Court. Such a subpoena can direct everyone, including the record keeper, not to disclose the subpoena to anyone, including to the person whose records were obtained. That section also specifically forbids investigation of a citizen or a lawful alien solely on the basis of activity protected by the First Amendment. It requires that the Justice Department report to Congress every six months on subpoenas issued under it. At last report, there have been no such subpoenas issued to libraries. Indeed, there have been no such subpoenas, period.
Let me hasten to add that it is not impossible to imagine how library records might prove highly relevant, as they did in one case, very much pre-9/11--the case of the "Unabomber," Ted Kaczynski. Some of you may recall that Kaczynski was apprehended soon after a newspaper agreed to publish his manifesto, and was caught based principally on a tip from his brother, who read the manifesto, and recognized the rhetoric. But one of the ways that tip was proved accurate was through examination of library records, which disclosed that the three arcane books cited in the manifesto had been checked out to Ted Kaczynski from a local library--a devastating bit of corroborative circumstantial evidence.
Like any other act of Congress, the Patriot Act should be scrutinized, criticized and, if necessary, amended. But in order to scrutinize and criticize it, it helps to read what is actually in it. It helps not to conduct the debate in terms that suggest it gives the government the power to investigate us based on what we read, or that people who work for the government actually have the inclination to do such a thing, not to mention the spare time.
As we participate in this debate on what is the right course to pursue, I think it is important to remember an interesting structural feature of the Constitution we all revere. When we speak of constitutional rights, we generally speak of rights that appear not in the original Constitution itself, but rather in amendments to the Constitution--principally the first 10. Those amendments are a noble work, but it is the rest of the Constitution--the boring part--the part that sets up a bicameral legislature and separation of powers, and so on, the part you will never see mentioned in any flyer or hear at any rally, that guarantees that the rights referred to in those 10 amendments are worth something more than the paper they are written on.
A bill of rights was omitted from the original Constitution over the objections of Patrick Henry and others. It may well be that those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government--God-given rights, no less, according to the Declaration of Independence--then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them.
So, as the historian Walter Berns has argued, the built-in message--the hidden message in the structure of the Constitution--is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt. If we keep that in mind, then the spirit of liberty will be the spirit which, if it is not too sure that it is right, is at least sure enough to keep itself--and us--alive.
Mr. Mukasey is chief judge of the U.S. District Court, Southern District of New York. This is adapted from a speech he gave last Wednesday, on his acceptance of the Learned Hand Medal for Excellence in Federal Jurisprudence.
Thursday, November 1, 2007
Jose Padilla Makes Bad Law
Terror trials hurt the nation even when they lead to convictions.
Wall Street Journal
BY MICHAEL B. MUKASEY
Wednesday, August 22, 2007 12:01 a.m. EDT
The apparently conventional ending to Jose Padilla's trial last week--conviction on charges of conspiring to commit violence abroad and providing material assistance to a terrorist organization--gives only the coldest of comfort to anyone concerned about how our legal system deals with the threat he and his co-conspirators represent. He will be sentenced--likely to a long if not a life-long term of imprisonment. He will appeal. By the time his appeals run out he will have engaged the attention of three federal district courts, three courts of appeal and on at least one occasion the Supreme Court of the United States.
It may be claimed that Padilla's odyssey is a triumph for due process and the rule of law in wartime. Instead, when it is examined closely, this case shows why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.
Padilla's current journey through the legal system began on May 8, 2002, when a federal district court in New York issued, and FBI agents in Chicago executed, a warrant to arrest him when he landed at O'Hare Airport after a trip that started in Pakistan. His prior history included a murder charge in Chicago before his 18th birthday, and a firearms possession offense in Florida shortly after his release on the murder charge.
Padilla then journeyed to Egypt, where, as a convert to Islam, he took the name Abdullah al Muhajir, and traveled to Saudi Arabia, Afghanistan and Pakistan. He eventually came to the attention of Abu Zubaydeh, a lieutenant of Osama bin Laden. The information underlying the warrant issued for Padilla indicated that he had returned to America to explore the possibility of locating radioactive material that could be dispersed with a conventional explosive--a device known as a dirty bomb.
However, Padilla was not detained on a criminal charge. Rather, he was arrested on a material witness warrant, issued under a statute (more than a century old) that authorizes the arrest of someone who has information likely to be of interest to a grand jury investigating a crime, but whose presence to testify cannot be assured. A federal grand jury in New York was then investigating the activities of al Qaeda.
The statute was used frequently after 9/11, when the government tried to investigate numerous leads and people to determine whether follow-on attacks were planned--but found itself without a statute that authorized investigative detention on reasonable suspicion, of the sort available to authorities in Britain and France, among other countries. And so, the U.S. government subpoenaed and arrested on a material witness warrant those like Padilla who seemed likely to have information.
Next the government took one of several courses: it released the person whose detention appeared on a second look to have been a mistake; or obtained the information he was thought to have, and his cooperation, and released him; or placed him before a grand jury with a grant of immunity under a compulsion to testify truthfully and, if he testified falsely, charge him with perjury; or developed independent evidence of criminality sufficiently reliable and admissible to warrant charging him.
Each individual so arrested was brought immediately before a federal judge where he was assigned counsel, had a bail hearing, and was permitted to challenge the basis for his detention, just as a criminal defendant would be.
The material witness statute has its perils. Because the law does not authorize investigative detention, the government had only a limited time in which to let Padilla testify, prosecute him or let him go. As that limited time drew to a close, the government changed course. It withdrew the grand jury subpoena that had triggered his designation as a material witness, designated Padilla instead as an unlawful combatant, and transferred him to military custody.
The reason? Perhaps it was because the initial claim, that Padilla was involved in a dirty bomb plot, could not be proved with evidence admissible in an ordinary criminal trial. Perhaps it was because to try him in open court potentially would compromise sources and methods of intelligence gathering. Or perhaps it was because Padilla's apparent contact with higher-ups in al Qaeda made him more valuable as a potential intelligence source than as a defendant.
The government's quandary here was real. The evidence that brought Padilla to the government's attention may have been compelling, but inadmissible. Hearsay is the most obvious reason why that could be so; or the source may have been such that to disclose it in a criminal trial could harm the government's overall effort.
In fact, terrorism prosecutions in this country have unintentionally provided terrorists with a rich source of intelligence. For example, in the course of prosecuting Omar Abdel Rahman (the so-called "blind sheik") and others for their role in the 1993 World Trade Center bombing and other crimes, the government was compelled--as it is in all cases that charge conspiracy--to turn over a list of unindicted co-conspirators to the defendants.
That list included the name of Osama bin Laden. As was learned later, within 10 days a copy of that list reached bin Laden in Khartoum, letting him know that his connection to that case had been discovered.
Again, during the trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised. That link, which in fact had been monitored by the government and had provided enormously valuable intelligence, was immediately shut down, and further information lost.
The unlawful combatant designation affixed to Padilla certainly was not unprecedented. In June 1942, German saboteurs landed from submarines off the coasts of Florida and Long Island and were eventually apprehended. Because they were not acting as ordinary soldiers fighting in uniform and carrying arms openly, they were in violation of the laws of war and not entitled to Geneva Conventions protections.
Indeed, at the direction of President Roosevelt they were not only not held as prisoners of war but were tried before a military court in Washington, D.C., convicted, and--except for two who had cooperated--executed, notwithstanding the contention by one of them that he was an American citizen, as is Padilla, and thus entitled to constitutional protections. The Supreme Court dismissed that contention as irrelevant.
In any event, Padilla was transferred to a brig in South Carolina, and the Supreme Court eventually held that he had the right to file a habeas corpus petition. His case wound its way back up the appellate chain, and after the government secured a favorable ruling from the Fourth Circuit, it changed course again.
Now, Padilla was transferred back to the civilian justice system. Although he reportedly confessed to the dirty bomb plot while in military custody, that statement--made without benefit of legal counsel--could not be used. He was instead indicted on other charges in the Florida case that took three months to try and ended with last week's convictions.
The history of Padilla's case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.
First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates--beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001--criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.
Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.
And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.
On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.
Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.
The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation--a practice, known as rendition, followed during the Clinton administration.
At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.
What is to be done? The Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 appear to address principally the detainees at Guantanamo. In any event, the Supreme Court's recently announced determination to review cases involving the Guantanamo detainees may end up making commissions, which the administration delayed in convening, no longer possible.
There have been several proposals for a new adjudicatory framework, notably by Andrew C. McCarthy and Alykhan Velshi of the Center for Law & Counterterrorism, and by former Deputy Attorney General George J. Terwilliger. Messrs. McCarthy and Velshi have urged the creation of a separate national security court staffed by independent, life-tenured judges to deal with the full gamut of national security issues, from intelligence gathering to prosecution. Mr. Terwilliger's more limited proposals address principally the need to incapacitate dangerous people, by using legal standards akin to those developed to handle civil commitment of the mentally ill.
These proposals deserve careful scrutiny by the public, and particularly by the U.S. Congress. It is Congress that authorized the use of armed force after Sept. 11--and it is Congress that has the constitutional authority to establish additional inferior courts as the need may be, or even to modify the Supreme Court's appellate jurisdiction.
Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results.
Mr. Mukasey was the district judge who signed the material witness warrant authorizing Jose Padilla's arrest in 2002, and who handled the case while it remained in the Southern District of New York. He was also the trial judge in United States v. Abdel Rahman et al. Retired from the bench, he is now a partner at Patterson Belknap Webb & Tyler in New York.
Wall Street Journal
BY MICHAEL B. MUKASEY
Wednesday, August 22, 2007 12:01 a.m. EDT
The apparently conventional ending to Jose Padilla's trial last week--conviction on charges of conspiring to commit violence abroad and providing material assistance to a terrorist organization--gives only the coldest of comfort to anyone concerned about how our legal system deals with the threat he and his co-conspirators represent. He will be sentenced--likely to a long if not a life-long term of imprisonment. He will appeal. By the time his appeals run out he will have engaged the attention of three federal district courts, three courts of appeal and on at least one occasion the Supreme Court of the United States.
It may be claimed that Padilla's odyssey is a triumph for due process and the rule of law in wartime. Instead, when it is examined closely, this case shows why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.
Padilla's current journey through the legal system began on May 8, 2002, when a federal district court in New York issued, and FBI agents in Chicago executed, a warrant to arrest him when he landed at O'Hare Airport after a trip that started in Pakistan. His prior history included a murder charge in Chicago before his 18th birthday, and a firearms possession offense in Florida shortly after his release on the murder charge.
Padilla then journeyed to Egypt, where, as a convert to Islam, he took the name Abdullah al Muhajir, and traveled to Saudi Arabia, Afghanistan and Pakistan. He eventually came to the attention of Abu Zubaydeh, a lieutenant of Osama bin Laden. The information underlying the warrant issued for Padilla indicated that he had returned to America to explore the possibility of locating radioactive material that could be dispersed with a conventional explosive--a device known as a dirty bomb.
However, Padilla was not detained on a criminal charge. Rather, he was arrested on a material witness warrant, issued under a statute (more than a century old) that authorizes the arrest of someone who has information likely to be of interest to a grand jury investigating a crime, but whose presence to testify cannot be assured. A federal grand jury in New York was then investigating the activities of al Qaeda.
The statute was used frequently after 9/11, when the government tried to investigate numerous leads and people to determine whether follow-on attacks were planned--but found itself without a statute that authorized investigative detention on reasonable suspicion, of the sort available to authorities in Britain and France, among other countries. And so, the U.S. government subpoenaed and arrested on a material witness warrant those like Padilla who seemed likely to have information.
Next the government took one of several courses: it released the person whose detention appeared on a second look to have been a mistake; or obtained the information he was thought to have, and his cooperation, and released him; or placed him before a grand jury with a grant of immunity under a compulsion to testify truthfully and, if he testified falsely, charge him with perjury; or developed independent evidence of criminality sufficiently reliable and admissible to warrant charging him.
Each individual so arrested was brought immediately before a federal judge where he was assigned counsel, had a bail hearing, and was permitted to challenge the basis for his detention, just as a criminal defendant would be.
The material witness statute has its perils. Because the law does not authorize investigative detention, the government had only a limited time in which to let Padilla testify, prosecute him or let him go. As that limited time drew to a close, the government changed course. It withdrew the grand jury subpoena that had triggered his designation as a material witness, designated Padilla instead as an unlawful combatant, and transferred him to military custody.
The reason? Perhaps it was because the initial claim, that Padilla was involved in a dirty bomb plot, could not be proved with evidence admissible in an ordinary criminal trial. Perhaps it was because to try him in open court potentially would compromise sources and methods of intelligence gathering. Or perhaps it was because Padilla's apparent contact with higher-ups in al Qaeda made him more valuable as a potential intelligence source than as a defendant.
The government's quandary here was real. The evidence that brought Padilla to the government's attention may have been compelling, but inadmissible. Hearsay is the most obvious reason why that could be so; or the source may have been such that to disclose it in a criminal trial could harm the government's overall effort.
In fact, terrorism prosecutions in this country have unintentionally provided terrorists with a rich source of intelligence. For example, in the course of prosecuting Omar Abdel Rahman (the so-called "blind sheik") and others for their role in the 1993 World Trade Center bombing and other crimes, the government was compelled--as it is in all cases that charge conspiracy--to turn over a list of unindicted co-conspirators to the defendants.
That list included the name of Osama bin Laden. As was learned later, within 10 days a copy of that list reached bin Laden in Khartoum, letting him know that his connection to that case had been discovered.
Again, during the trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised. That link, which in fact had been monitored by the government and had provided enormously valuable intelligence, was immediately shut down, and further information lost.
The unlawful combatant designation affixed to Padilla certainly was not unprecedented. In June 1942, German saboteurs landed from submarines off the coasts of Florida and Long Island and were eventually apprehended. Because they were not acting as ordinary soldiers fighting in uniform and carrying arms openly, they were in violation of the laws of war and not entitled to Geneva Conventions protections.
Indeed, at the direction of President Roosevelt they were not only not held as prisoners of war but were tried before a military court in Washington, D.C., convicted, and--except for two who had cooperated--executed, notwithstanding the contention by one of them that he was an American citizen, as is Padilla, and thus entitled to constitutional protections. The Supreme Court dismissed that contention as irrelevant.
In any event, Padilla was transferred to a brig in South Carolina, and the Supreme Court eventually held that he had the right to file a habeas corpus petition. His case wound its way back up the appellate chain, and after the government secured a favorable ruling from the Fourth Circuit, it changed course again.
Now, Padilla was transferred back to the civilian justice system. Although he reportedly confessed to the dirty bomb plot while in military custody, that statement--made without benefit of legal counsel--could not be used. He was instead indicted on other charges in the Florida case that took three months to try and ended with last week's convictions.
The history of Padilla's case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.
First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates--beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001--criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.
Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.
And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.
On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.
Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.
The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation--a practice, known as rendition, followed during the Clinton administration.
At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.
What is to be done? The Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 appear to address principally the detainees at Guantanamo. In any event, the Supreme Court's recently announced determination to review cases involving the Guantanamo detainees may end up making commissions, which the administration delayed in convening, no longer possible.
There have been several proposals for a new adjudicatory framework, notably by Andrew C. McCarthy and Alykhan Velshi of the Center for Law & Counterterrorism, and by former Deputy Attorney General George J. Terwilliger. Messrs. McCarthy and Velshi have urged the creation of a separate national security court staffed by independent, life-tenured judges to deal with the full gamut of national security issues, from intelligence gathering to prosecution. Mr. Terwilliger's more limited proposals address principally the need to incapacitate dangerous people, by using legal standards akin to those developed to handle civil commitment of the mentally ill.
These proposals deserve careful scrutiny by the public, and particularly by the U.S. Congress. It is Congress that authorized the use of armed force after Sept. 11--and it is Congress that has the constitutional authority to establish additional inferior courts as the need may be, or even to modify the Supreme Court's appellate jurisdiction.
Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results.
Mr. Mukasey was the district judge who signed the material witness warrant authorizing Jose Padilla's arrest in 2002, and who handled the case while it remained in the Southern District of New York. He was also the trial judge in United States v. Abdel Rahman et al. Retired from the bench, he is now a partner at Patterson Belknap Webb & Tyler in New York.
How to Try a Terrorist
New York Times Opinion
By JOHN C. COUGHENOUR
Seattle
MICHAEL B. MUKASEY, President Bush’s nominee to be attorney general, is coming under increasing fire for his views on what constitutes illegal torture. But the aspect of his philosophy that worries me more is his view of the judiciary’s role in prosecuting the war on terror.
Judge Mukasey expressed his own views on the subject in August in an op-ed article in The Wall Street Journal in which he argued that our legal system is “strained and mismatched,” and implored Congress to consider “several proposals for a new adjudicatory framework.” Judge Mukasey suggested we strike a different balance between civil liberties and national security in terrorism cases.
His views are undoubtedly informed by the time he spent on the federal bench, where he presided over the trial of Omar Abdel Rahman and others involved in the 1993 World Trade Center bombing. By most accounts, Judge Mukasey did an exemplary job of protecting national security while ensuring that defendant’s right to a fair trial. The conclusion he draws, however, is by no means compelled by a vantage point from the bench.
In 2001, I presided over the trial of Ahmed Ressam, the confessed Algerian terrorist, for his role in a plot to bomb Los Angeles International Airport. That experience only strengthened my conviction that American courts, guided by the principles of our Constitution, are fully capable of trying suspected terrorists.
As evidence of “the inadequacy of the current approach to terrorism prosecutions,” Judge Mukasey noted that there have been only about three dozen convictions in spite of Al Qaeda’s growing threat. Open prosecutions, he argued, potentially disclose to our enemies methods and sources of intelligence-gathering. Our Constitution does not adequately protect society from “people who have cosmic goals that they are intent on achieving by cataclysmic means,” he wrote.
It is regrettable that so often when our courts are evaluated for their ability to handle terrorism cases, the Constitution is conceived as mere solicitude for criminals. Implicit in this misguided notion is that society’s somehow charitable view toward “ordinary” crimes of murder or rape ought not to extend to terrorists. In fact, the criminal procedure required under our Constitution reflects the reality that law enforcement is not perfect, and that questions of guilt necessarily precede questions of mercy.
Consider the fact that of the 598 people initially detained at Guantánamo Bay in 2002, 267 have been released. It is likely that for a number of the former detainees, there was simply no basis for detention. The American ideal of a just legal system is inconsistent with holding “suspects” for years without trial.
Judge Mukasey raises a legitimate concern about whether open judicial proceedings may compromise intelligence gathering. But courts are equipped to meet this challenge. The Classified Information Procedures Act provides a set of rules for criminal cases. They include the appointment of a court security officer to oversee protocol for classified information. The law also states that only people with security clearance may have access to classified information, and only as needed for their jobs.
Certainly this system cannot entirely prevent any misuse of information; the mere fact of an arrest may tell a story we’d rather our enemies not hear. But our system provides a sensible way to protect national security while maintaining some degree of transparency.
The case against Mr. Ressam demonstrates that our courts can protect Americans from terrorism. Through the commendable efforts of law enforcement authorities in 1999, Mr. Ressam was captured before he was able to carry out his plan to bomb the airport. For two years after his conviction, thanks in part to the fairness he was shown by the court, Mr. Ressam provided intelligence useful to terrorism investigations around the world, as German, Italian, French and British authorities were willing to attest.
After a fair and open trial in which Mr. Ressam was convicted by a jury of his peers, I stated at sentencing that “we have the resolve in this country to deal with the subject of terrorism, and people who engage in it should be prepared to sacrifice a major portion of their life in confinement.” Mr. Ressam now sits in a federal prison, and his punishment has the imprimatur of our time-honored constitutional values.
If confirmed, Judge Mukasey will join Michael Chertoff as another esteemed former jurist in the executive branch facing the formidable task of keeping our nation safe from terrorism. The distinction between the roles of judge and law enforcement officer should not be lost in the transition. Our courts ensure an independent process; they do not enforce the prerogatives of law enforcement. Any proposal that would blur this distinction would compromise a bedrock principle of government that has defined this country from its inception. This is a price too high to pay.
John C. Coughenour is a federal district judge.
Seven are acquitted in Madrid bombings
New York Times
October 31, 2007
By VICTORIA BURNETT
MADRID, Oct. 31 — The National Court on Wednesday convicted three men of murdering 191 people and wounding more than 1,800 in the 2004 Madrid bombings. But three other men, who were accused of being the organizers, were found not guilty of direct involvement in the attacks, the most deadly carried out by Islamic radicals on European soil.
The three-judge tribunal court acquitted a total of seven suspects and found 18 others guilty of lesser charges related to the attacks, including belonging to a terrorist organization.
The sentences ranged from 3 to almost 43,000 years, although under Spanish law, the maximum anyone is forced to serve is 40 consecutive years. One defendant was released during the trial for lack of evidence.
Many Spaniards were shocked that the focal suspects were not convicted of the most severe charges.
The verdicts closed a sprawling trial that over the course of five months brought 29 defendants, nearly 50 lawyers and 350 witnesses to a temporary courtroom on the outskirts of Madrid.
The trial promised the first taste of justice to those wounded in the attacks and the relatives of those killed on March 11, 2004, when blasts from 13 sports bags stuffed with explosives and nails tore through four trains carrying people from mainly working-class suburbs to the city center.
Those who believed that prosecutors had produced enough evidence to convict the main suspects of the most serious charges were disappointed.
Isabel Presa, who lost her youngest son in the blasts, told reporters outside the courtroom, “I’m not a judge or a lawyer, but this is shameful, outrageous.”
According to Reuters, Ms. Presa said the attacks had “condemned me and my husband to a life sentence, and these people get off scot-free.”
Counterterrorism experts said the verdict underscored the difficulty of building a solid case against people accused of inspiring or directing Islamist foot soldiers, and who belong to diffuse groups with little formal structure.
The bombings were carried out by a group of North African Islamists that intersected with a band of petty criminals whose ringleader, Jamal Ahmidan, had become radicalized in a Moroccan jail. Seven of the main suspects, including Mr. Ahmidan, blew themselves up in a Madrid apartment when they were surrounded by the police three weeks after the attacks, and four others are believed to have fled.
Without a case strong enough to convict those suspected of being organizers, the prosecutors failed to prove a connection between the group that carried out the attacks and international Islamists with links to established organizations, like the Moroccan Islamic Combatant Group.
The counterterrorism experts said the verdicts reflected the challenges faced by police forces and judges as they seek to imprison those accused of international terrorism: the preponderance of circumstantial evidence rather than concrete proof; problems with evidence translated from Arabic and with evidence collected by other countries; unreliable witnesses; and the absence of confessions — none of the 28 defendants confessed.
“It is a point of pride to be able to try people in a courtroom, with full constitutional guarantees,” Fernando Reinares, an expert in international terrorism at the Royal Elcano Institute, said. “But in Spain there is space for debate about whether we need to adapt our judicial legislation and culture to confront international Islamist terrorism.”
Roland Jacquard, head of the International Observatory on Terrorism in Paris, said prosecutors had encountered similar difficulties in countries like Germany, where people accused of complicity in the Sept. 11, 2001, attacks on the United States were acquitted for lack of evidence.
He said: “We need to find a legal formula that would give evidence of the masterminds’ responsibility, and not only of the responsibility of the operatives. It is always easier to arrest someone who has imprints of explosives on his hands.”
Javier Gómez Bermudez, the presiding judge on the tribunal, sentenced Jamal Zougam, 34, a Moroccan whom witnesses saw on one of the trains that was later bombed, to more than 30,000 years in prison for charges including murder. Mr. Zougam owned a shop where most of the phone cards used in the mobile phones that detonated the explosives were bought.
The tribunal gave a similar sentence to Otman el-Gnaoui, 32, a Moroccan who helped transport the explosives used in the attacks, and to José Emilio Suárez Trashorras, 30, who was convicted as a “necessary accomplice.” Mr. Suárez, a former miner from northern Spain, supplied the stolen dynamite used in the bombings in exchange for drugs.
But the tribunal acquitted Rabei Osman Sayed Ahmed, who was accused of being a March 11 organizer. Last year, he was convicted in an Italian court of conspiracy to participate in international terrorist activities.
The other defendants who were accused of being organizers, Hassan el-Haski and Youssef Belhadj, were acquitted of any such role and convicted of belonging to a terrorist group.
In written arguments released Wednesday, the tribunal said tapes of telephone conversations made by the Italian police and provided as evidence against Mr. Ahmed did not prove his participation in the plot. Prosecutors said Mr. Ahmed was caught boasting that he was “the thread behind the Madrid plot,” but the translation from the Arabic was disputed by Spanish translators in the Madrid court.
The tribunal also said a piece of paper found in Mr. Ahmed’s Milan apartment, bearing the words “martyr,” “honey” and “11-03-04” — the European rendering of the date of the attack — was not conclusive evidence.
Mr. Reinares, the expert on terrorism, said the tribunal appeared to have been very strict in its definition of admissible evidence. “It seems he has not admitted the extraordinary mass of circumstantial evidence,” Mr. Reinares said. “This kind of evidence is crucial when you are trying members of a nebulous group of international terrorists.”
Pauline Ranger contributed reporting from Paris.
Al-Marri: Court Takes Second Look at Enemy Combatant Case
New York Times
November 1, 2007
RICHMOND, Va., Oct. 31 — It seemed like a foregone conclusion that the full United States Court of Appeals for the Fourth Circuit would be receptive to the Bush administration’s contention that it has the authority to detain people it calls enemy combatants.
The court’s conservative reputation is well known, and in August it decided to rehear the case in which a three-judge appeals panel rejected aspects of the administration’s position.
But, based on the pointed, practical and frequently passionate questioning here on Wednesday in the case of Ali al-Marri, the judges of the Fourth Circuit are divided and troubled, and it was not clear which way the majority was leaning.
Mr. Marri is the only person on the American mainland being held as an enemy combatant, at the Navy brig in Charleston, S.C. A citizen of Qatar legally in the United States, he was arrested in December 2001 in Peoria, Ill., where he was living with his family and studying computer science at Bradley University. The government contends that he is a sleeper agent for Al Qaeda.
The central question before the nine judges hearing the case on Wednesday was whether the executive branch may capture people in the United States and subject them to indefinite military detention without charges.
In 2004, the Supreme Court ruled that Congress had granted the president power to detain at least those enemy combatants captured on the battlefield in Afghanistan, even if they are American citizens, for the duration of hostilities there. Based on that decision, the Fourth Circuit in 2005 upheld the detention of Jose Padilla, an American arrested at a Chicago airport. Although Mr. Padilla was said to have ties to Al Qaeda, the Fourth Circuit decision largely turned on his own activities on the battlefield in Afghanistan.
Mr. Padilla was later transferred to the criminal justice system and tried on charges related to terrorism. He was convicted in August. Mr. Marri traveled the same road in the opposite direction. He was on the verge of a trial on credit card fraud and other charges when he was moved to military detention in 2003.
The appeals panel in Mr. Marri’s case ruled, 2 to 1, in June that the powers Congress granted to the president in September 2001 extended only to the detention of people who had taken up arms against the United States as part of the armed forces of an enemy nation. That would include people who fought alongside the Taliban but not most members of Al Qaeda.
At the argument on Wednesday, Judge J. Harvie Wilkinson III called that distinction curious, saying, “I don’t understand how the authority to use military force which relates specifically to the Sept. 11 attacks can be held not to apply to the people who attacked us.”
He added, in extended remarks, that civil liberties groups had stirred up needless anxiety about the president’s detention powers. “We’re not talking about an indiscriminate roundup,” he said. “We’re talking about two people” — Mr. Marri and Mr. Padilla — “in six years with undisputed ties to Al Qaeda.”
Judge Roger L. Gregory, who joined the majority opinion in the panel decision, responded that the question was one of constitutional principle.
Gregory G. Garre, arguing for the government, faced practical questions that suggested concern among the judges about his position. “How long can you keep this man in custody?” Judge M. Blane Michael asked.
“It could go on for a long time,” Mr. Garre replied, adding that it depended on how long the United States was at war with Al Qaeda.
“It looks like a lifetime,” Judge Michael said.
Judge William B. Traxler Jr. asked whether people could be detained and held in secret. “What kind of notice is required to the public or his family?” Judge Traxler asked.
Mr. Marri has not seen or spoken to his wife and five children in more than four years.
Mr. Garre responded that Mr. Marri, who was held incommunicado for his first 16 months in the brig, was eventually given access to lawyers and a court hearing in which he was given the opportunity to rebut the government’s assertions, an opportunity Mr. Garre said Mr. Marri had “squandered.” (Mr. Marri’s lawyers say it ought to be the government’s burden to prove its accusations.)
Judge Traxler pressed Mr. Garre. “How is a person who is held incommunicado to challenge these things?” he asked. Mr. Garre offered no direct response.
Mr. Marri’s lawyer, Jonathan L. Hafetz of the Brennan Center for Justice at New York University, said the government had been a moving target in terrorism cases. “This is not a game,” Mr. Hafetz said, referring to the exchanges with Mr. Garre. “This is a man’s life. Mr. al-Marri is entitled to know what the rules are.”
One of the 10 active judges on the court, Judge Dennis W. Shedd, recused himself, giving no reason. A 5-to-5 tie would have automatically affirmed the trial judge’s dismissal of Mr. Marri’s case. Now five votes are needed for either side to win.
November 1, 2007
RICHMOND, Va., Oct. 31 — It seemed like a foregone conclusion that the full United States Court of Appeals for the Fourth Circuit would be receptive to the Bush administration’s contention that it has the authority to detain people it calls enemy combatants.
The court’s conservative reputation is well known, and in August it decided to rehear the case in which a three-judge appeals panel rejected aspects of the administration’s position.
But, based on the pointed, practical and frequently passionate questioning here on Wednesday in the case of Ali al-Marri, the judges of the Fourth Circuit are divided and troubled, and it was not clear which way the majority was leaning.
Mr. Marri is the only person on the American mainland being held as an enemy combatant, at the Navy brig in Charleston, S.C. A citizen of Qatar legally in the United States, he was arrested in December 2001 in Peoria, Ill., where he was living with his family and studying computer science at Bradley University. The government contends that he is a sleeper agent for Al Qaeda.
The central question before the nine judges hearing the case on Wednesday was whether the executive branch may capture people in the United States and subject them to indefinite military detention without charges.
In 2004, the Supreme Court ruled that Congress had granted the president power to detain at least those enemy combatants captured on the battlefield in Afghanistan, even if they are American citizens, for the duration of hostilities there. Based on that decision, the Fourth Circuit in 2005 upheld the detention of Jose Padilla, an American arrested at a Chicago airport. Although Mr. Padilla was said to have ties to Al Qaeda, the Fourth Circuit decision largely turned on his own activities on the battlefield in Afghanistan.
Mr. Padilla was later transferred to the criminal justice system and tried on charges related to terrorism. He was convicted in August. Mr. Marri traveled the same road in the opposite direction. He was on the verge of a trial on credit card fraud and other charges when he was moved to military detention in 2003.
The appeals panel in Mr. Marri’s case ruled, 2 to 1, in June that the powers Congress granted to the president in September 2001 extended only to the detention of people who had taken up arms against the United States as part of the armed forces of an enemy nation. That would include people who fought alongside the Taliban but not most members of Al Qaeda.
At the argument on Wednesday, Judge J. Harvie Wilkinson III called that distinction curious, saying, “I don’t understand how the authority to use military force which relates specifically to the Sept. 11 attacks can be held not to apply to the people who attacked us.”
He added, in extended remarks, that civil liberties groups had stirred up needless anxiety about the president’s detention powers. “We’re not talking about an indiscriminate roundup,” he said. “We’re talking about two people” — Mr. Marri and Mr. Padilla — “in six years with undisputed ties to Al Qaeda.”
Judge Roger L. Gregory, who joined the majority opinion in the panel decision, responded that the question was one of constitutional principle.
Gregory G. Garre, arguing for the government, faced practical questions that suggested concern among the judges about his position. “How long can you keep this man in custody?” Judge M. Blane Michael asked.
“It could go on for a long time,” Mr. Garre replied, adding that it depended on how long the United States was at war with Al Qaeda.
“It looks like a lifetime,” Judge Michael said.
Judge William B. Traxler Jr. asked whether people could be detained and held in secret. “What kind of notice is required to the public or his family?” Judge Traxler asked.
Mr. Marri has not seen or spoken to his wife and five children in more than four years.
Mr. Garre responded that Mr. Marri, who was held incommunicado for his first 16 months in the brig, was eventually given access to lawyers and a court hearing in which he was given the opportunity to rebut the government’s assertions, an opportunity Mr. Garre said Mr. Marri had “squandered.” (Mr. Marri’s lawyers say it ought to be the government’s burden to prove its accusations.)
Judge Traxler pressed Mr. Garre. “How is a person who is held incommunicado to challenge these things?” he asked. Mr. Garre offered no direct response.
Mr. Marri’s lawyer, Jonathan L. Hafetz of the Brennan Center for Justice at New York University, said the government had been a moving target in terrorism cases. “This is not a game,” Mr. Hafetz said, referring to the exchanges with Mr. Garre. “This is a man’s life. Mr. al-Marri is entitled to know what the rules are.”
One of the 10 active judges on the court, Judge Dennis W. Shedd, recused himself, giving no reason. A 5-to-5 tie would have automatically affirmed the trial judge’s dismissal of Mr. Marri’s case. Now five votes are needed for either side to win.
Tuesday, June 5, 2007
Military Judges Dismiss Charges for 2 Detainees
NY Times, June 5, 2007
By WILLIAM GLABERSON
GUANTÁNAMO BAY, Cuba, June 4 — The government’s new system for trying Guantánamo detainees was thrown into turmoil Monday, when military judges in separate decisions dismissed war crimes charges against two of the detainees.
The rulings, the latest legal setbacks for the government’s effort to bring war crimes charges against detainees, could stall the military’s prosecutions here.
The decisions did not turn on the guilt or innocence of the detainees, but rather made essentially the same determination that the military had not followed procedures to declare the detainees “unlawful enemy combatants,” which is required for the military commission to hear the cases.
Pentagon officials described the rulings as raising technical and semantic issues, and said that they were considering appeals. If appeals failed, they said, they could go through the process of redesignating the detainees.
But military lawyers said the rulings exposed a flaw that would affect every other potential war-crimes case here. And the rulings brought immediate calls, including from some on Capitol Hill, for Congress to re-examine the system it set up last year for military commission trials and, perhaps, to consider other changes in the legal treatment of Guantánamo detainees.
In an interview, Senator Arlen Specter of Pennsylvania, the senior Republican on the Judiciary Committee, said after the first of the two rulings Monday that the decision raised significant issues and could prompt Congress to re-evaluate the legal rights of detainees, including Congress’s decision last year to revoke the rights of detainees to file habeas corpus suits to challenge their detentions.
“The sense I have is that there’s an unease, an uncomfortable sense about the whole Guantánamo milieu,” Mr. Specter said, adding, “There’s just a sense of too many shortcuts in the whole process.”
Whatever the ultimate legal ramifications of Monday’s rulings, they are another in a string of unexpected detours in the government’s five-year effort to establish a special legal system for trying foreign terrorism suspects. The current commission system was approved by Congress after the Supreme Court last June struck down the administration’s first plan for holding war crimes trials.
The military judges said Congress authorized the bringing of war-crimes charges against detainees who had been declared by military tribunals to be “unlawful enemy combatants.” But they said the tribunals held at Guantánamo, known as combatant status review tribunals, or C.S.R.T.’s, had determined only that the detainees were enemy combatants, without making the added determination that their participation was “unlawful.”
The international law of war defines unlawful combatants as fighters who, for example, do not wear military uniforms and conceal their weapons.
Monday’s rulings came in the cases of the only Canadian detainee, Omar Ahmed Khadr, and a Yemeni detainee, Salim Ahmed Hamdan. Mr. Hamdan’s appeal of a prior effort to prosecute him led to a Supreme Court decision last June in which the justices struck down the administration’s first system for war-crimes trials.
The military judge in Mr. Hamdan’s case, Capt. Keith Allred of the Navy, said the Pentagon had failed to obtain the necessary enemy combatant classification of Mr. Hamdan, who is accused of being the Qaeda driver for Osama bin Laden.
Mr. Hamdan’s longtime military lawyer, Lt. Cmdr. Charles Swift said that, though his client was unlikely to obtain freedom because of the decision, “It was once again a victory for the rule of law.”
The judge in Mr. Khadr’s case, Peter E. Brownback III, an Army colonel, said since the detainee had not been declared an unlawful enemy combatant, the military court did not have jurisdiction over the case and the proceedings could not continue. “A person has a right to be tried only by a court which he knows has jurisdiction over him,” Judge Brownback said from the bench in the military courtroom here.
Mr. Khadr, who was 15 when he was captured in Afghanistan, is charged with killing an American soldier, spying, supporting terrorism and other charges.
The White House declined on Monday night to comment on the decisions. Beth G. Kubala, an Army major who is the spokeswoman for the Office of Military Commissions at the Pentagon, said that the day’s ruling demonstrated that the military judges operated independently. But she suggested that the military did not view the double defeat as paralyzing to its prosecutions of war crimes.
“The public should make no assumptions,” Ms. Kubala said, “about the future of military commissions.”
A Pentagon statement said: “We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures.”
But Mr. Specter said it was “dead wrong” to assert that Congress intended to permit prosecution of detainees who had not been declared unlawful enemy combatants.
So far, three detainees have been charged with war crimes under the law passed last year, including Mr. Khadr and Mr. Hamdan. The third detainee, David Hicks, pleaded guilty earlier this year and was sent to his native Australia. Prosecutors have said they may file such war crimes charges against about 80 of the 380 detainees here.
Under directives from President Bush and senior Defense Department officials, military officials here have held detainees after finding simply that they were “enemy combatants.”
Those procedures have long drawn criticism, with some opponents of administration policies saying they appeared to ignore principles of the international law of war, which sanctions the violence of battle without classifying it as a war crime.
The military could repair the problem raised by the judges Monday by holding new combatant status review hearings to determine if each of the detainees slated for war-crimes charges was an unlawful combatant.
But the chief military defense lawyer here, Col. Dwight Sullivan of the Marines, said he viewed the decision as having broad impact because it underscored what he and other critics have described as a commission process that lacks international legitimacy and legal authority.
“How much more evidence do we need that the military commission process doesn’t work?” asked Colonel Sullivan.
Some experts on military law said the new tangle of legal challenges would almost certainly cause extensive delays at a time when the administration has been pressing to show that its legal proceedings at Guantánamo were moving forward.
David W. Glazier, a retired Navy commander who is an associate professor at the Loyola Law School in Los Angeles, said it would be cumbersome for the military to get new determinations that the detainees were unlawful combatants.
“All the individuals that the government wants to charge will have to go through the C.S.R.T. process again,” Mr. Glazier said.
Some legal experts said subjecting the detainees to new combatant status hearings could create additional problems for the administration. The combatant status panels have been among the most criticized features of the Pentagon’s legal system here, in part because detainees are not permitted lawyers and are not allowed to see much of the evidence against them.
In a recent case in federal appeals court in Washington, the Justice Department acknowledged that in some cases, Pentagon officials disagreed with findings from combatant status panels that detainees were not enemy combatants. In some of those cases new hearings were ordered and those detainees were determined to be enemy combatants after all.
Adam Liptak contributed reporting.
By WILLIAM GLABERSON
GUANTÁNAMO BAY, Cuba, June 4 — The government’s new system for trying Guantánamo detainees was thrown into turmoil Monday, when military judges in separate decisions dismissed war crimes charges against two of the detainees.
The rulings, the latest legal setbacks for the government’s effort to bring war crimes charges against detainees, could stall the military’s prosecutions here.
The decisions did not turn on the guilt or innocence of the detainees, but rather made essentially the same determination that the military had not followed procedures to declare the detainees “unlawful enemy combatants,” which is required for the military commission to hear the cases.
Pentagon officials described the rulings as raising technical and semantic issues, and said that they were considering appeals. If appeals failed, they said, they could go through the process of redesignating the detainees.
But military lawyers said the rulings exposed a flaw that would affect every other potential war-crimes case here. And the rulings brought immediate calls, including from some on Capitol Hill, for Congress to re-examine the system it set up last year for military commission trials and, perhaps, to consider other changes in the legal treatment of Guantánamo detainees.
In an interview, Senator Arlen Specter of Pennsylvania, the senior Republican on the Judiciary Committee, said after the first of the two rulings Monday that the decision raised significant issues and could prompt Congress to re-evaluate the legal rights of detainees, including Congress’s decision last year to revoke the rights of detainees to file habeas corpus suits to challenge their detentions.
“The sense I have is that there’s an unease, an uncomfortable sense about the whole Guantánamo milieu,” Mr. Specter said, adding, “There’s just a sense of too many shortcuts in the whole process.”
Whatever the ultimate legal ramifications of Monday’s rulings, they are another in a string of unexpected detours in the government’s five-year effort to establish a special legal system for trying foreign terrorism suspects. The current commission system was approved by Congress after the Supreme Court last June struck down the administration’s first plan for holding war crimes trials.
The military judges said Congress authorized the bringing of war-crimes charges against detainees who had been declared by military tribunals to be “unlawful enemy combatants.” But they said the tribunals held at Guantánamo, known as combatant status review tribunals, or C.S.R.T.’s, had determined only that the detainees were enemy combatants, without making the added determination that their participation was “unlawful.”
The international law of war defines unlawful combatants as fighters who, for example, do not wear military uniforms and conceal their weapons.
Monday’s rulings came in the cases of the only Canadian detainee, Omar Ahmed Khadr, and a Yemeni detainee, Salim Ahmed Hamdan. Mr. Hamdan’s appeal of a prior effort to prosecute him led to a Supreme Court decision last June in which the justices struck down the administration’s first system for war-crimes trials.
The military judge in Mr. Hamdan’s case, Capt. Keith Allred of the Navy, said the Pentagon had failed to obtain the necessary enemy combatant classification of Mr. Hamdan, who is accused of being the Qaeda driver for Osama bin Laden.
Mr. Hamdan’s longtime military lawyer, Lt. Cmdr. Charles Swift said that, though his client was unlikely to obtain freedom because of the decision, “It was once again a victory for the rule of law.”
The judge in Mr. Khadr’s case, Peter E. Brownback III, an Army colonel, said since the detainee had not been declared an unlawful enemy combatant, the military court did not have jurisdiction over the case and the proceedings could not continue. “A person has a right to be tried only by a court which he knows has jurisdiction over him,” Judge Brownback said from the bench in the military courtroom here.
Mr. Khadr, who was 15 when he was captured in Afghanistan, is charged with killing an American soldier, spying, supporting terrorism and other charges.
The White House declined on Monday night to comment on the decisions. Beth G. Kubala, an Army major who is the spokeswoman for the Office of Military Commissions at the Pentagon, said that the day’s ruling demonstrated that the military judges operated independently. But she suggested that the military did not view the double defeat as paralyzing to its prosecutions of war crimes.
“The public should make no assumptions,” Ms. Kubala said, “about the future of military commissions.”
A Pentagon statement said: “We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures.”
But Mr. Specter said it was “dead wrong” to assert that Congress intended to permit prosecution of detainees who had not been declared unlawful enemy combatants.
So far, three detainees have been charged with war crimes under the law passed last year, including Mr. Khadr and Mr. Hamdan. The third detainee, David Hicks, pleaded guilty earlier this year and was sent to his native Australia. Prosecutors have said they may file such war crimes charges against about 80 of the 380 detainees here.
Under directives from President Bush and senior Defense Department officials, military officials here have held detainees after finding simply that they were “enemy combatants.”
Those procedures have long drawn criticism, with some opponents of administration policies saying they appeared to ignore principles of the international law of war, which sanctions the violence of battle without classifying it as a war crime.
The military could repair the problem raised by the judges Monday by holding new combatant status review hearings to determine if each of the detainees slated for war-crimes charges was an unlawful combatant.
But the chief military defense lawyer here, Col. Dwight Sullivan of the Marines, said he viewed the decision as having broad impact because it underscored what he and other critics have described as a commission process that lacks international legitimacy and legal authority.
“How much more evidence do we need that the military commission process doesn’t work?” asked Colonel Sullivan.
Some experts on military law said the new tangle of legal challenges would almost certainly cause extensive delays at a time when the administration has been pressing to show that its legal proceedings at Guantánamo were moving forward.
David W. Glazier, a retired Navy commander who is an associate professor at the Loyola Law School in Los Angeles, said it would be cumbersome for the military to get new determinations that the detainees were unlawful combatants.
“All the individuals that the government wants to charge will have to go through the C.S.R.T. process again,” Mr. Glazier said.
Some legal experts said subjecting the detainees to new combatant status hearings could create additional problems for the administration. The combatant status panels have been among the most criticized features of the Pentagon’s legal system here, in part because detainees are not permitted lawyers and are not allowed to see much of the evidence against them.
In a recent case in federal appeals court in Washington, the Justice Department acknowledged that in some cases, Pentagon officials disagreed with findings from combatant status panels that detainees were not enemy combatants. In some of those cases new hearings were ordered and those detainees were determined to be enemy combatants after all.
Adam Liptak contributed reporting.
Thursday, May 31, 2007
Interrogation Methods Are Criticized
May 30, 2007
New York Times
By SCOTT SHANE and MARK MAZZETTI
WASHINGTON, May 29 — As the Bush administration completes secret new rules governing interrogations, a group of experts advising the intelligence agencies are arguing that the harsh techniques used since the 2001 terrorist attacks are outmoded, amateurish and unreliable.
The psychologists and other specialists, commissioned by the Intelligence Science Board, make the case that more than five years after the Sept. 11 attacks, the Bush administration has yet to create an elite corps of interrogators trained to glean secrets from terrorism suspects.
While billions are spent each year to upgrade satellites and other high-tech spy machinery, the experts say, interrogation methods — possibly the most important source of information on groups like Al Qaeda — are a hodgepodge that date from the 1950s, or are modeled on old Soviet practices.
Some of the study participants argue that interrogation should be restructured using lessons from many fields, including the tricks of veteran homicide detectives, the persuasive techniques of sophisticated marketing and models from American history.
The science board critique comes as ethical concerns about harsh interrogations are being voiced by current and former government officials. The top commander in Iraq, Gen. David H. Petraeus, sent a letter to troops this month warning that “expedient methods” using force violated American values.
In a blistering lecture delivered last month, a former adviser to Secretary of State Condoleezza Rice called “immoral” some interrogation tactics used by the Central Intelligence Agency and the Pentagon.
But in meetings with intelligence officials and in a 325-page initial report completed in December, the researchers have pressed a more practical critique: there is little evidence, they say, that harsh methods produce the best intelligence.
“There’s an assumption that often passes for common sense that the more pain imposed on someone, the more likely they are to comply,” said Randy Borum, a psychologist at the University of South Florida who, like several of the study’s contributors, is a consultant for the Defense Department.
The Bush administration is nearing completion of a long-delayed executive order that will set new rules for interrogations by the Central Intelligence Agency. The order is expected to ban the harshest techniques used in the past, including the simulated drowning tactic known as waterboarding, but to authorize some methods that go beyond those allowed in the military by the Army Field Manual.
President Bush has insisted that those secret “enhanced” techniques are crucial, and he is far from alone. The notion that turning up pressure and pain on a prisoner will produce valuable intelligence is a staple of popular culture from the television series “24” to the recent Republican presidential debate, where some candidates tried to outdo one another in vowing to get tough on captured terrorists. A 2005 Harvard study supported the selective use of “highly coercive” techniques.
But some of the experts involved in the interrogation review, called “Educing Information,” say that during World War II, German and Japanese prisoners were effectively questioned without coercion.
“It far outclassed what we’ve done,” said Steven M. Kleinman, a former Air Force interrogator and trainer, who has studied the World War II program of interrogating Germans. The questioners at Fort Hunt, Va., “had graduate degrees in law and philosophy, spoke the language flawlessly,” and prepared for four to six hours for each hour of questioning, said Mr. Kleinman, who wrote two chapters for the December report.
Mr. Kleinman, who worked as an interrogator in Iraq in 2003, called the post-Sept. 11 efforts “amateurish” by comparison to the World War II program, with inexperienced interrogators who worked through interpreters and had little familiarity with the prisoners’ culture.
The Intelligence Science Board study has a chapter on the long history of police interrogations, which it suggests may contain lessons on eliciting accurate confessions. And Mr. Borum, the psychologist, said modern marketing may be a source of relevant insights into how to influence a prisoner’s willingness to provide information.
“We have a whole social science literature on persuasion,” Mr. Borum said. “It’s mostly on how to get a person to buy a certain brand of toothpaste. But it certainly could be useful in improving interrogation.”
Robert F. Coulam, a research professor and attorney at Simmons College and a study participant, said that the government’s most vigorous work on interrogation to date has been in seeking legal justifications for harsh tactics. Even today, he said, “there’s nothing like the mobilization of effort and political energy that was put into relaxing the rules” governing interrogation.
The director of the science board project, Robert A. Fein, a forensic psychologist at Harvard, declined to speak on the record.
In a prologue to the December report, the first of a planned series, Mr. Fein said the shortage of research meant that many American interrogators were “forced to ‘make it up’ on the fly,” resulting in “unfortunate cases of abuse.”
But associates say Mr. Fein does not want to antagonize intelligence officials, whom he hopes to persuade to bring the reality check of research to bear on interrogation practices.
Defenders of the harshest interrogations, particularly as practiced by the C.I.A. at secret overseas sites, say they were carefully devised and have produced valuable intelligence. An agency spokesman, Paul Gimigliano, said the program “has generated a rich volume of intelligence that has helped the United States and other countries disrupt terrorist activities and save innocent lives.”
He said the agency’s interrogators were “seasoned, well trained, and have the linguistic resources they need,” and added, “The agency learned terrorist interrogation after 9/11, but — based on the effectiveness of this fully legal program — it learned it well.”
A. B. Krongard, who was the executive director of the C.I.A., the No. 3 post at the agency, from 2001 to 2004, agreed with that assessment but acknowledged that the agency had to create an interrogation program from scratch in 2002.
He said officers quickly consulted counterparts in Egypt, Saudi Arabia, Israel and other countries to compile a “catalog” of techniques said to be effective against Arab and Muslim prisoners. They added other methods drawn from those that American troops were trained to withstand in case of capture.
Mr. Krongard even recalls receiving a proposal for help with questioning Qaeda suspects from an American dentist who said he “could create pain no human being could withstand.”
The agency rejected such ideas as ludicrous. But administration lawyers approved a list of harsh methods that have drawn widespread condemnation.
In an April lecture, Philip D. Zelikow, the former adviser to Ms. Rice, said it was a grave mistake to delegate to attorneys decisions on the moral question of how prisoners should be treated.
Mr. Zelikow, who reviewed the C.I.A. detention program as the executive director of the Sept. 11 commission, said the “cool, carefully considered, methodical, prolonged and repeated subjection of captives to physical torment, and the accompanying psychological terror, is immoral.”
Many of the techniques that have come in for such criticism were based on those used in the military’s Survival, Evasion, Resistance and Escape training, or SERE, in which for decades American service members were given a sample of the brutal treatment they might face if captured.
Because the training was developed during the cold war, the techniques later adopted by the C.I.A. and Special Operations officers in Iraq were based, at least in part, on how the Soviet Union and its allies were believed to treat prisoners. Such techniques included prolonged use of stress positions, exposure to heat and cold, sleep deprivation and even waterboarding.
A report on detainee abuse by the Defense Department’s inspector general, completed in August but declassified and released May 18, gives new details of how the military training was “reverse engineered” for use by American interrogators. It says that as early as 2002, some SERE trainers and some military intelligence officers vehemently objected to the use of the techniques, but their protests were ignored.
Senator Carl Levin, a Michigan Democrat and chairman of the Senate Armed Services Committee, said he found the report “very troubling” and intended to hold hearings on how the SERE training methods became the basis for interrogation. “They were put to a purpose that was never intended,” Mr. Levin said.
Mr. Kleinman, the former Air Force interrogator who took part in the “Educing Information” study, said the mistakes of the past five years “have made interrogation synonymous in many people’s minds with torture.” But he said the group wanted to redirect the debate toward the future of interrogation.
“Our intention is not to point fingers at anyone,” he said. “We’re just saying we have to bring interrogation up to the level of professionalism in other intelligence disciplines.”
New York Times
By SCOTT SHANE and MARK MAZZETTI
WASHINGTON, May 29 — As the Bush administration completes secret new rules governing interrogations, a group of experts advising the intelligence agencies are arguing that the harsh techniques used since the 2001 terrorist attacks are outmoded, amateurish and unreliable.
The psychologists and other specialists, commissioned by the Intelligence Science Board, make the case that more than five years after the Sept. 11 attacks, the Bush administration has yet to create an elite corps of interrogators trained to glean secrets from terrorism suspects.
While billions are spent each year to upgrade satellites and other high-tech spy machinery, the experts say, interrogation methods — possibly the most important source of information on groups like Al Qaeda — are a hodgepodge that date from the 1950s, or are modeled on old Soviet practices.
Some of the study participants argue that interrogation should be restructured using lessons from many fields, including the tricks of veteran homicide detectives, the persuasive techniques of sophisticated marketing and models from American history.
The science board critique comes as ethical concerns about harsh interrogations are being voiced by current and former government officials. The top commander in Iraq, Gen. David H. Petraeus, sent a letter to troops this month warning that “expedient methods” using force violated American values.
In a blistering lecture delivered last month, a former adviser to Secretary of State Condoleezza Rice called “immoral” some interrogation tactics used by the Central Intelligence Agency and the Pentagon.
But in meetings with intelligence officials and in a 325-page initial report completed in December, the researchers have pressed a more practical critique: there is little evidence, they say, that harsh methods produce the best intelligence.
“There’s an assumption that often passes for common sense that the more pain imposed on someone, the more likely they are to comply,” said Randy Borum, a psychologist at the University of South Florida who, like several of the study’s contributors, is a consultant for the Defense Department.
The Bush administration is nearing completion of a long-delayed executive order that will set new rules for interrogations by the Central Intelligence Agency. The order is expected to ban the harshest techniques used in the past, including the simulated drowning tactic known as waterboarding, but to authorize some methods that go beyond those allowed in the military by the Army Field Manual.
President Bush has insisted that those secret “enhanced” techniques are crucial, and he is far from alone. The notion that turning up pressure and pain on a prisoner will produce valuable intelligence is a staple of popular culture from the television series “24” to the recent Republican presidential debate, where some candidates tried to outdo one another in vowing to get tough on captured terrorists. A 2005 Harvard study supported the selective use of “highly coercive” techniques.
But some of the experts involved in the interrogation review, called “Educing Information,” say that during World War II, German and Japanese prisoners were effectively questioned without coercion.
“It far outclassed what we’ve done,” said Steven M. Kleinman, a former Air Force interrogator and trainer, who has studied the World War II program of interrogating Germans. The questioners at Fort Hunt, Va., “had graduate degrees in law and philosophy, spoke the language flawlessly,” and prepared for four to six hours for each hour of questioning, said Mr. Kleinman, who wrote two chapters for the December report.
Mr. Kleinman, who worked as an interrogator in Iraq in 2003, called the post-Sept. 11 efforts “amateurish” by comparison to the World War II program, with inexperienced interrogators who worked through interpreters and had little familiarity with the prisoners’ culture.
The Intelligence Science Board study has a chapter on the long history of police interrogations, which it suggests may contain lessons on eliciting accurate confessions. And Mr. Borum, the psychologist, said modern marketing may be a source of relevant insights into how to influence a prisoner’s willingness to provide information.
“We have a whole social science literature on persuasion,” Mr. Borum said. “It’s mostly on how to get a person to buy a certain brand of toothpaste. But it certainly could be useful in improving interrogation.”
Robert F. Coulam, a research professor and attorney at Simmons College and a study participant, said that the government’s most vigorous work on interrogation to date has been in seeking legal justifications for harsh tactics. Even today, he said, “there’s nothing like the mobilization of effort and political energy that was put into relaxing the rules” governing interrogation.
The director of the science board project, Robert A. Fein, a forensic psychologist at Harvard, declined to speak on the record.
In a prologue to the December report, the first of a planned series, Mr. Fein said the shortage of research meant that many American interrogators were “forced to ‘make it up’ on the fly,” resulting in “unfortunate cases of abuse.”
But associates say Mr. Fein does not want to antagonize intelligence officials, whom he hopes to persuade to bring the reality check of research to bear on interrogation practices.
Defenders of the harshest interrogations, particularly as practiced by the C.I.A. at secret overseas sites, say they were carefully devised and have produced valuable intelligence. An agency spokesman, Paul Gimigliano, said the program “has generated a rich volume of intelligence that has helped the United States and other countries disrupt terrorist activities and save innocent lives.”
He said the agency’s interrogators were “seasoned, well trained, and have the linguistic resources they need,” and added, “The agency learned terrorist interrogation after 9/11, but — based on the effectiveness of this fully legal program — it learned it well.”
A. B. Krongard, who was the executive director of the C.I.A., the No. 3 post at the agency, from 2001 to 2004, agreed with that assessment but acknowledged that the agency had to create an interrogation program from scratch in 2002.
He said officers quickly consulted counterparts in Egypt, Saudi Arabia, Israel and other countries to compile a “catalog” of techniques said to be effective against Arab and Muslim prisoners. They added other methods drawn from those that American troops were trained to withstand in case of capture.
Mr. Krongard even recalls receiving a proposal for help with questioning Qaeda suspects from an American dentist who said he “could create pain no human being could withstand.”
The agency rejected such ideas as ludicrous. But administration lawyers approved a list of harsh methods that have drawn widespread condemnation.
In an April lecture, Philip D. Zelikow, the former adviser to Ms. Rice, said it was a grave mistake to delegate to attorneys decisions on the moral question of how prisoners should be treated.
Mr. Zelikow, who reviewed the C.I.A. detention program as the executive director of the Sept. 11 commission, said the “cool, carefully considered, methodical, prolonged and repeated subjection of captives to physical torment, and the accompanying psychological terror, is immoral.”
Many of the techniques that have come in for such criticism were based on those used in the military’s Survival, Evasion, Resistance and Escape training, or SERE, in which for decades American service members were given a sample of the brutal treatment they might face if captured.
Because the training was developed during the cold war, the techniques later adopted by the C.I.A. and Special Operations officers in Iraq were based, at least in part, on how the Soviet Union and its allies were believed to treat prisoners. Such techniques included prolonged use of stress positions, exposure to heat and cold, sleep deprivation and even waterboarding.
A report on detainee abuse by the Defense Department’s inspector general, completed in August but declassified and released May 18, gives new details of how the military training was “reverse engineered” for use by American interrogators. It says that as early as 2002, some SERE trainers and some military intelligence officers vehemently objected to the use of the techniques, but their protests were ignored.
Senator Carl Levin, a Michigan Democrat and chairman of the Senate Armed Services Committee, said he found the report “very troubling” and intended to hold hearings on how the SERE training methods became the basis for interrogation. “They were put to a purpose that was never intended,” Mr. Levin said.
Mr. Kleinman, the former Air Force interrogator who took part in the “Educing Information” study, said the mistakes of the past five years “have made interrogation synonymous in many people’s minds with torture.” But he said the group wanted to redirect the debate toward the future of interrogation.
“Our intention is not to point fingers at anyone,” he said. “We’re just saying we have to bring interrogation up to the level of professionalism in other intelligence disciplines.”
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