Our Constitution and laws did nothing to protect us on September 11, 2001. International law did nothing either. Rather, intelligence, behavioral profiling at airport security, locked cockpit doors, F-16s on patrol overhead, could have protected us. Excessive legal constraints have already cost us dearly: In late 2001 a Predator drone had Taliban spiritual leader Mullah Omar in its gun-sights. But by the time administration lawyers finished debating what was legally permissible the high-value target was off-screen. How many lives would have been saved had Mullah Omar been taken out then? By how much would Taliban operations have been degraded, deprived of their charismatic leader?
The Obama administration has followed Bush policy in several cases. Most notably, after the Karachi capture of Mullah Omar's top military commander, Mullah Bandar, the Pakistanis, who know not Miranda from Miss Manners, interrogated him.
But two recent decisions starkly diverge from the war focus of the Bush years. By instantly tossing the Christmas Flight 253 bomber into the criminal justice system, before ascertaining whether he acted alone or in concert with Islamist groups, the opportunity to probe the bomber's knowledge of Yemeni terrorist connections was cut off by the Miranda warnings and intervention of defense counsel. The defendant's testimony is now only be obtainable via a plea agreement, in which event the Obama administration will have sacrificed full punishment for a would-be mass murderer, to gain intelligence it could have gained by pursuing trial in a military tribunal, where pre-trial interrogation can be much more thorough.
The mere 50 minutes' interrogation given the Flight 253 bomber before he was Mirandized is a travesty -- the decision was taken without the knowledge of any senior intelligence or homeland security official, let alone the White House. Intelligence 101 requires serial interrogation based upon assembling prior knowledge, comparison with other sources for verification, with interrogators working to gain full trust of an isolated detainee given no right to remain silent. Worse, defendant's intelligence is evanescent and thus likely actionable only for a short time. Five precious weeks were lost before the defendant resumed talking.
Far worse, the administration may still hold a criminal trial for the 9/11 plotters at the same time that it plans to try other top terrorists by military tribunal. Team Obama's defenders, such as Senate Judiciary Chairman Patrick Leahy, hail the decision as giving America a chance to showcase how its criminal justice system can try (and convict) terrorists with full due process, and thus presumably garner some international goodwill as an added benefit.
We have seen this movie before. The perpetrators of the 1993 World Trade Center bombing were tried and convicted and given long sentences. In the bargain, Osama bin Laden learned that he was on a terror watch list, as were other top confederates, and he learned that his phone was being monitored. Al-Qaeda made adjustments accordingly, and a valuable source of intelligence was lost, with key al-Qaeda members put on notice to be careful how they communicated.
Whatever goodwill we may have earned did us no good in 1998 when al-Qaeda bombed our Kenyan and Tanzanian embassy building, nor during the 2000 bombing of the USS Cole in Aden harbor, let alone on September 11, 2001, when the worst terror attack ever carried out on American soil finally forced America to strike back.
A 9/11 criminal court trial could easily be to be the 21st century's first O.J. trial. Forgotten is how one of the conspirators in the first World Trade Center bombing, Sayed al-Nosair, was acquitted in the 1990 shooting of Jewish militant Rabbi Meir Kahane despite conclusive evidence. Forgotten is that the 20th hijacker trial of Zacharias Moussaoui nearly ended in disaster. A Clinton appointee judge nearly dismissed the case. After a guilty plea by defendant, a jury declined to impose the death penalty, due to one juror who concealed a core conviction against capital punishment.
Fortunately for America's fortunes in the Civil War and World War II, past Presidents put security first and legalism second -- "lawfare" as a tactic did not come into vogue until recent years. Not that everything earlier leaders did was justified, but certain things are defensible, in light of history. The late Chief Justice William Rehnquist, in his magisterial account of wartime suspension of civil liberties, All the Laws But One (1998), detailed the ups and downs in the seesaw battle of national security and civil liberties. The cliché that the two are completely compatible, publicly subscribed to by politicians across the political spectrum, gives way to the complex interplay of wartime conflict.
Justifying his April 1861 suspension of the writ of habeas corpus -- despite the Constitution's reservation, per Article I, section 9, clause 2 of that power to Congress, and then only in cases of rebellion or invasion, when public safety requires it -- President Lincoln asked in a July 4, 1861 message to a special session of Congress: "Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?"
Lincoln later imprisoned Union antiwar "Copperhead" leader Cornelius Vallandigham in 1863. This undercut the Copperhead push for a compromise peace that would have permanently sundered the Union. Vallandigham was convicted in one day, by a military commission applying martial law to a civilian. Lincoln defended this action by stating, "Must I shoot a simpleminded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?" In March 1863 Congress passed the Habeas Corpus Act, ratifying Lincoln's decisions while adding limited protections for those detained.
Perhaps the capstone case in the Civil War and its immediate aftermath was the military commission treason trial of Indiana Copperhead Lambdin Milligan. In Ex Parte Milligan (1866) the Supreme Court granted a writ of habeas corpus to free Milligan from military prison, on the grounds that as a civilian he could not be tried in a military court in a non-combat zone, given functioning civil courts there. The Supreme Court has not to date fully accepted former President Bush's stance that today's combat zone includes the entire United States.
World War II saw the landmark Korematsu v. United States (1944) addressing the internment of 112,000 Japanese-Americans denied individual trials, in detention camps away from the West coast's concentration of war industry and military facilities. Sporadic Japanese raids on targets in California, Oregon and Alaska had heightened official anxiety.
Fred Korematsu's conviction was overturned in 1983, and compensation paid survivors and families. Few defend the decision today. Noteworthy in Korematsu is dissenting Justice Frank Murphy's footnote detailing how England in World War II created 112 alien tribunals to hear 74,000 individual cases involving German and Austrian nationals residing in England, detaining only 10,000. Murphy's reference implies that the United States could have held individual hearings too.
Most of the foregoing episodes are well known. But consider a little-known tale from World War II, told in A Man Called Intrepid, the 1976 book about Sir William Stephenson, the secret envoy between President Franklin Roosevelt and British Prime Minister Winston Churchill, and thus privy to many a dark secret.
In the spring of 1941 a desperate drama unfolded, beginning with the May 21 breakout of the German battleship Bismarck into the North Atlantic, leaving all shipping at risk. Churchill alerted FDR, warning that the super-ship and the heavy cruiser Prinz Eugen, both spotted off the coast of Norway, "could alter the whole course of the war."
The Brits sent a veritable fleet plus several squadrons of airplanes to go after Bismarck. But they were to obtain the help of America, too -- without which the ship might have made it safely to a port in occupied France and taken shelter under air cover. On May 22 Bismarck engaged two British battleships, damaging Prince of Wales and sinking the best Brit ship afloat, the celebrated Hood, with a direct magazine hit; the ship sunk in three minutes with all but three of 1,400 hands. FDR remarked, when told: "The Hood sunk? It's the end of 'Rule Britannia.'" The huge warship slipped her pursuers and was not located for 30 hours. It was spotted by a Coast Guard cutter, nearing France; a PBY Catalina reconnaissance plane then took off from Scotland with a mixed British-US Navy crew and fixed Bismarck's position. On May 27 the great ship was sunk off France's Atlantic coast.
America was legally a neutral, yet directly aided a combat operation. Members of the plane that fixed the ship's position, sealing its fate, were American, operating under direct authorization from the President of the United States. Reconnaissance information was communicated to the British, enabling their ships to corner and sink the Bismarck. Germany did not go to war, officially, with America until after Pearl Harbor, which was bombed December 7, 1941. More than months before we were at war with Germany we committed what normally is considered an act of war.
FDR understood the implications, asked adviser Robert Sherwood on May 24: "Suppose the Bismarck does show up in the Caribbean? We have some submarines down there. Suppose we order them to attack her and attempt to sink her? Do you think the people would demand to have me impeached?"
Commanders in chief must make messy choices of the kind that make lawyers, by their training, temperamentally inclined to decline legally risky courses of action. Thus in 1940 Churchill had advance warning from code-breakers that the Germans were going to bomb Coventry. Lacking a cover story to explain how, without code breaking, England could have learned of the raid Churchill remained silent, and hundreds of innocent civilians perished. The benefit of continuing to use Enigma code to strategic advantage was too great, and in Churchill's war calculus justified the wrenching sacrifice. Thus Churchill's famous dictum, "In war truth is so precious she should always be attended by a bodyguard of lies."
Historian Arthur Herman, writing on Guantanamo detention in Commentary, recounts senior policy advice offered during an episode regarding sending a terrorist to foreign soil for interrogation, the practice called "rendition" invented during the Clinton administration:
According to Richard Clarke's memoir, Against All Enemies, Vice President Al Gore cheered them on. Clarke tells the story of Gore coming to a 1993 NSC meeting where the idea of "extraordinary rendition" was proposed. While White House Counsel Lloyd Cutler had his doubts, Gore had none. "That's a no brainer," Clarke says Gore declared, "Of course it's a violation of international law. The guy is a terrorist. Go grab his ass."
Perhaps wisest of all among Supreme Court Justices as to national security matters was Robert Jackson, whose tenure encompassed the Second World War and the Korean War. Dissenting in a 1949 free speech case, Terminiello v. Chicago, Justice Robert H. Jackson wrote these oft-quoted words:
The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
Jackson had offered such practical wisdom in Korematsu, dissenting from the Court's upholding of wartime detention of Japanese Americans, explaining why the Court would have been better advised to stay out of the internment case entirely:
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as 'the tendency of a principle to expand itself to the limit of its logic.' A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.
Like Lincoln and FDR, the Framers understood the limits of Constitutions. In Federalist 41 James Madison--whose leading role at the 1787 Philadelphia Grand Convention made him "Father of the Constitution" -- set limits to its reach:
The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.
Writing in Federalist 36, Alexander Hamilton proclaimed:
And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security.
Hamilton proved to have been an optimist. In a series of rulings from 2004 to 2008 the Supreme Court conferred rights upon unlawful combatants greater than those given lawful combatants in prior conflicts. In World War II America held 400,000 German prisoners of war -- the vast majority lawful combatants, by standards of the day -- and no habeas corpus writ was granted. In Hamdan v. Rumsfeld (2006) the Supreme Court, in tossing out the Military Commissions Act, treated the war with al-Qaeda as one local in scope, despite bombs bursting all over the globe, so that it could apply Common Article 3 to terror detainees. (The Court's rationale, that because al-Qaeda is a stateless party the conflict is local, was a crashing non sequitur that could only be sustained in a parallel universe of Alice-in-Wonderland legalism where, per Humpty Dumpty: "When I use a word, it means just what I choose it to mean -- neither more or less.")
In Boumediene v. Bush (2008) the Court applied habeas corpus to Guantanamo Bay by stretching the definition of sovereignty beyond legal authority to pure physical control; such reasoning would hold Lebanon, whose government hasn't controlled its full territory for more than three decades, as not legally sovereign. (Lakhdar Boumediene, the Algerian detainee who won that case, was released to French custody in May 2009.) It may be said of the Supreme Court's performance since September 11, 2001 what Lincoln acidly noted in his 1862 Executive Order No. 1:
The judicial machinery seemed as if it had been designed, not to sustain the Government, but to embarrass and betray it.
In insinuating itself so deeply into wartime captivity and thus extending the judicial power to areas hitherto deemed the province of the legislative and executive branches the Supreme Court has partially disarmed us by constraining how elected branches conduct the war, and extended judicial power into areas historically -- rightly -- reserved for the other branches. It is in wartime above all that Americans are entitled to expect that decisions potentially affecting the outcome of the war be taken by those elected and thus accountable, rather than appointed judges insulated by life tenure.
Nor have the lower courts, and even military courts, been exempt from suicide-pact rulings. In November 2001 -- while the fires were still smoldering at ground zero -- the Foreign Intelligence Surveillance Court ruled that the USA Patriot Act, passed weeks before and designed to tear down the "wall" that compartmentalized intelligence gathering and domestic law enforcement, did not do so. Instead the Court reinstated the wall. One year later the Foreign Intelligence Court of Review reversed, holding that the Act had in fact done exactly what its language said: tear the wall down, which drafters blamed for much of the confusion in tracking terrorists prior to 9/11.
In August 2004 an al-Qaeda detainee rose during his combat status review hearing and asked to address the tribunal. He began by stating that he would describe his role in the 9/11 attacks. The presiding judge cut him off and said his evidence would not be heard. After conferring with his two bench mates, the judge reversed himself. Too late: the defendant said that he had since lost his train of thought.
In January 2007 a federal judge ruled that a Baghdad call between insurgents, whom our forces wanted to tap in search of three soldiers taken hostage, required a warrant for interception per the Foreign Intelligence Surveillance Act. The judge so ruled because the call, routed over the Internet through the United States, was thus a domestic intercept. Had the identical call been routed through international links only, the judge would have ruled no warrant was needed. The decisions that routed the call through the states were taken serendipitously in milliseconds, via "hot potato" routing by a series of digital computers. Months later, Congress did correct this interpretative absurdity, as not intended by the drafters of the original law.
Which brings us back to the 9/11 trial. If held in New York, what might be in store for a 9/11-terror trial next to Ground Zero? How about a Muslim militant getting on the jury by concealing his radical beliefs, voting for acquittal? How about an anti-death penalty juror preventing imposition of capital punishment? How about a juror enraged by "torture" at Guantanamo? How about Osama bin Laden issuing a fatwa (religious decree) calling for killing jurors who vote to convict KSM, and their families as well? Are we ready for twelve jurors, should they convict, being put into the Witness Protection program?
What if the judge excludes crucial evidence allegedly obtained via enhanced interrogation techniques that President Obama has called torture? And what of contamination of the trial by President Obama's statement that defendants will be convicted and executed? What if, to win a conviction with vast American prestige at stake, the prosecution accedes to judicial rulings applying the Sixth Amendment Confrontation Clause that require disclosure of potentially sensitive material?
A civilian jury pool will include people profoundly anti-death penalty, viscerally anti-Guantanamo, plus those sympathetic to militant Islam. Muslim jurors cannot legally be excluded from selection. A hung jury means a retrial. Going back to a military tribunal would look like bait-and-switch. Will serial juries hang the case? It takes one juror of twelve to hang a verdict, while it takes twelve jurors to hang a defendant. And what if, due to evidence excluded, jurors reluctantly acquit?
An acquittal will seem to many like a verdict of innocence. That there is no such verdict in American law is a mystery to many Americans. Will Muslims worldwide know better? Will al-Jazeera tell them? O.J. was found liable in a civil wrongful death case after having been acquitted in the criminal case. Jurors can think someone probably guilty, and acquit in a criminal case, while other jurors can later decide that there probably was a crime. The two verdicts are consistent under American law. Try to sell that to deeply suspicious Muslim youth around the globe.
Neither acquittal nor a hung jury would legally prevent us from continuing to hold defendant as an unlawful combatant. But global political pressure will prove intense, with acquittal or a hung jury treated as a finding of innocence. Legal niceties will fall by the wayside. Even our European allies, beset by restive Muslim populations, will press us to give in. And jidahi worldwide will be hugely energized.
The administration is committing the classic fallacy of mirror-imaging how others will interpret events. Audiences in a Cairo café, in a Karachi madrassa, in "Londonistan" include countless people who think that 9/11 was an inside job, carried out by the government as 4,000 Jews stayed home from work. To believe that they will accept a verdict of guilty -- even if the trial runs smoothly -- is a leap of blind faith.
What will likely transpire is a reverse Eichmann trial. Nazi war criminal Adolf Eichmann was tried in 1961 before an audience of Americans and Europeans -- hardly anyone else had television then. Even in America and Europe, most people relied on newspapers; the main visual was movie newsreels shown in theaters. Outside the West, virtually no one then had access to television. Eichmann had been instrumental in carrying out Hitler's genocidal design that led to the Holocaust. He was a faceless, bloodless bureaucrat.
KSM's plans killed 3,000 on 9/11, not six million -- he aspired to the latter, but failed to achieve his goal. Unlike Eichmann, he may prove charismatic to millions worldwide. If his courtroom oratory is suppressed, Muslims will see a kangaroo court, the niceties of American legal process notwithstanding. Reporters today will obsess on whether full due process rights have been granted. Every ruling adverse to defendants will risk media challenge, thus pressuring the trial judge to resolve close calls in favor of the defense, as in ordinary criminal trials. In short, a public-relations catastrophe may well air 24/7 in today's global media circus tent. And this will occur not long after the end of a war, but during an ongoing conflict.
There are, to be sure, some trials better sent to civilian courts. Complex financial terror network cases need the expertise that top federal prosecutors bring. But detainees captured on the field of battle are better suited for military courts. As this article goes to press it looks as if KSM will not be tried in a New York courtroom after all, and that a deal may be in the works on future trials. But the lawfare mindset that created this mess remains deeply seated in the Obama administration.
A lawfare mindset does not ask whether we should try terror detainees at all. As unlawful combatants they have no such legal entitlement. Even the administration concedes it can hold detainees after an acquittal (unlikely though in real life that may be). In giving trial rights to terrorists that soldiers fighting lawfully did not enjoy in earlier times we are not helping ourselves. To believe that jihadists would leave the battlefield if we give everyone due process strains credulity -- doing so before 9/11 did not stop 9/11.
Thomas Jefferson famously called the cast of the 1787 Constitutional Convention "an assembly of demi-gods." But they were not Gods. And our Constitution is not a Quranic literal recitation of the Word of God. It is not a Bible. It is a broad charter of government that, as Madison noted, cannot cover every exigent circumstance. As Chief Justice John Marshall put it in McCullough v. Maryland (1819), such would "partake of the prolixity of a legal code…Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated."
In the face of WMD threats, a President must put survival first. The Roman maxim Inter arma silent leges ("In war the laws are silent") may be too strong for today's society. But suicide-pact legalism can sacrifice life and liberty in the name of sacralizing the Constitution and the pronouncements of the Supreme Court.
The latter is especially troubling, because the Supreme Court is not, as popular myth holds, the final arbiter of matters constitutional or otherwise. Its interpretations of (or encrustations upon) the Constitution can be reversed per Article V's amending process. Its interpretational "judicial gloss" superimposed upon federal statutes can be reversed by Congress passing a new law. And as Presidents Lincoln showed, in wartime its rulings can be disregarded, if as Commander-in-Chief the President perceives a grave risk to national security.
Yet despite such checks on the Court's power, in practice they are often ineffective. Since the first ten Amendments were ratified as the Bill of Rights in 1791 there have been but 17 more Amendments that have won ratification, only three since 1961. Congress does occasionally override the Supreme Court. It did so when, after the Court invalidated sections of the Detainee Treatment Act of 2005, Congress passed the Military Commissions Act of 2006. But the Court threw out key parts of that statute too, and Congress then threw in the towel.
Thus a willful Court often can get its way, judges being accountable officially to no one due to the sinecure of life tenure given "good behavior." As Chief Justice Charles Evans Hughes quipped in 1907: "We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution."
America's legal tradition merits respect, but survival trumps law, or there is no society to argue over what the law is or what it should be. What we call "law" is in effect a body of unilateral constraints that bind us but not our enemies; ditto for international law and "our values." We may legitimately decide to so constrain ourselves, but often we do so at increased risk that our enemies will take advantage of such latitude to inflict grievous harm upon us. Giving unlawful combatants more rights today than lawful combatants enjoyed historically is unnecessary and unwise.
In the event, after a WMD strike martial law will apply without question. Only its duration, administrative caprice and scope are uncertain. Let one terrorist nuke detonate in an American city, killing hundreds of thousands (let alone several, killing millions), and then ask Americans whether any tool should have been spared in the sacred names of our laws, Constitution and values, lest we violate the "human dignity" of senior al-Qaeda captives. Charles Evans Hughes also said: "[The] war power of the national government is the power to wage war successfully."
The terrorists have only three ways they can beat us: our technology, our media and our laws. They wish to use our technology, our fishbowl global media and our suicide-pact legal system as forms of judo against us. Civil libertarians are using privacy lawfare to turn us against our security technology. We need not acquiesce in this. We must take any and all measures to deny Islamists possession of nuclear weapons or other forms of WMD. We must use targeted security technology. We must use global media to actively counter efforts to turn opinion against us -- such as when Taliban use human shields, and then claim that we are responsible for civilian casualties after we strike. And above all, we should deny those who would destroy our civilization access to our legal system to use as a weapon against us.
Massachusetts Senator Scott Brown put it perfectly in his January 19 special election victory speech:
And let me say this, with respect to those who wish to harm us, I believe that our Constitution and laws exist to protect this nation -- they do not grant rights and privileges to enemies in wartime. In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.
No country ever won a war because it had the best legal system. Nor has any country ever won a war because it engaged in full disclosure of sins real or imagined. Despite controversial acts during the Civil War, Abraham Lincoln is honored as our greatest President. FDR remains widely revered despite imperfect Constitutional fealty. Few would say that America's historic wartime sins matched the mass atrocities perpetrated by our adversaries. No reasonable person today would assert that America's post-2001 sins come close to matching the atavism of al-Qaeda and the Taliban. War choices are usually among greater and lesser evils.
Put simply, via suicide-pact "lawfare" cases, lawyers and judges can lose a war; they cannot win one.
President Obama should immediately take steps to put protect our war effort from destructive lawfare lawyering: place top terror trials in military commissions, and place intelligence needs before prosecuting terrorists. If the federal courts continue to insinuate themselves into war cases, setting aside executive and legislative programs, Congress should deprive civilian courts of jurisdiction in battlefield cases. If the Supreme Court orders that such cases be tried in civilian courts, Congress should refuse to fund them , and we can then hold terrorists as unlawful combatants.