Authors: Aki Peritz,Eric Rosenbach
Find, Fix, Finish (13 page)
Controversial methods in intelligence can additionally generate terrible political fallout. Much like how the use of
la question
stained the honor of the French military for years after Algeria, the CIA program—where KSM became the cause célèbre—spawned multiple investigations and the possibility of prosecutions. In August 2009, the Justice Department appointed a special prosecutor to conduct a preliminary investigation into allegations of abuse by CIA interrogators that first surfaced in a 2004 CIA inspector general report.
76
The decision to open the probe was controversial and opposed by several former directors.
la question
stained the honor of the French military for years after Algeria, the CIA program—where KSM became the cause célèbre—spawned multiple investigations and the possibility of prosecutions. In August 2009, the Justice Department appointed a special prosecutor to conduct a preliminary investigation into allegations of abuse by CIA interrogators that first surfaced in a 2004 CIA inspector general report.
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The decision to open the probe was controversial and opposed by several former directors.
The legal terrain of interrogation is complex, and there is ongoing debate about which laws apply to agents of the US government. In any given context, the actions of US interrogators may be constrained by international treaties such as the Geneva Conventions and the Universal Declaration of Human Rights; US statutes such as the War Crimes Act and the Detainee Treatment Act; judicial doctrine, such as
Hamdan v. Rumsfeld
; or executive orders.
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Government employees who participated in this CTC program were concerned with their actions. The CIA’s inspector general recognized this fear as early as 2004, and wrote in scathing detail:
Hamdan v. Rumsfeld
; or executive orders.
77
Government employees who participated in this CTC program were concerned with their actions. The CIA’s inspector general recognized this fear as early as 2004, and wrote in scathing detail:
A number of Agency officers of various grade levels who are involved with detention and interrogation activities are concerned that they may at some future date
be vulnerable to legal action in the United States or abroad and that the US Government will not stand behind them.
Although the current detention and interrogation Program has been subject to [Department of Justice] legal review and Administration political approval, it
diverges sharply
from previous Agency policy and practice, rules that govern interrogations by US military and law enforcement officers, statements of US policy by the Department of State, and public statements by very senior US officials, including the President, as well as the policies expressed by Members of Congress, other Western governments, international organizations, and human rights groups.
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[Emphasis added.]
As many have found out, political winds can become unfavorable, exposing them to future sanction. These unnamed officers instinctively grasped the long-term consequences:
Officers are concerned that future public revelations of the CTC Program is inevitable and will seriously damage Agency officers’ personal reputations, as well as the reputation and effectiveness of the Agency itself.... The Agency faces potentially serious long-term political and legal challenges as a result of the CTC Detention and Interrogation Program, particularly its use of EITs and the inability of the US Government to decide what it will ultimately do with terrorists detained by the Agency.
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In 2008 one official told a reporter, “I’m worried that the next administration is going to prosecute the guys who got involved, and there won’t be any presidential pardons at the end of it. It would be O.K. if it were [former attorney generals] John Ashcroft or Alberto Gonzales. But it won’t be. It’ll be some poor GS-13 who was just trying to do his job.”
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THE 2004 CIA inspector general’s report proved to be prescient in another way: the US government remains unable to decide what to do with many of the individuals detained by American forces in the global conflict against al-Qaeda.
Some have argued in favor of trying these individuals in military commissions. Military commissions are not regularly constituted military courts; instead, they are ad hoc institutions first used by the US during the Mexican-American War and subsequently in every major war.
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In 1942, the Supreme Court unanimously upheld the constitutionality of military commissions in
Ex Parte Quirin
.
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Specifically, the Court held that a military commission had jurisdiction over eight German saboteurs caught on US soil for violating the laws of war because they failed to wear military uniforms.
81
In 1942, the Supreme Court unanimously upheld the constitutionality of military commissions in
Ex Parte Quirin
.
82
Specifically, the Court held that a military commission had jurisdiction over eight German saboteurs caught on US soil for violating the laws of war because they failed to wear military uniforms.
In November 2001, President Bush announced that he was authorizing the trial by military commission of noncitizens suspected of terrorism.
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Whereas US federal courts have stringent rules for the admission of evidence—hearsay and evidence gathered unconstitutionally are strictly prohibited—military commission rules drafted by the Bush administration allowed evidence to be admitted provided “the evidence would have probative value to a reasonable person.”
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The Bush administration also exempted military commissions from review by most US courts. Finally, if national security requires, prosecutors were given the right not to inform defendants of evidence against them, as well as the ability to exclude defendants from attending their own trials. Congress further diminished protections for defendants tried by military commissions when it passed the Detainee Treatment Act of 2005. The majority of the act relates to the interrogation of prisoners, but it states that only the Court of Appeals for the District of Columbia can review military commission decisions and hear habeas corpus petitions of military prisoners challenging their detention.
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Whereas US federal courts have stringent rules for the admission of evidence—hearsay and evidence gathered unconstitutionally are strictly prohibited—military commission rules drafted by the Bush administration allowed evidence to be admitted provided “the evidence would have probative value to a reasonable person.”
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The Bush administration also exempted military commissions from review by most US courts. Finally, if national security requires, prosecutors were given the right not to inform defendants of evidence against them, as well as the ability to exclude defendants from attending their own trials. Congress further diminished protections for defendants tried by military commissions when it passed the Detainee Treatment Act of 2005. The majority of the act relates to the interrogation of prisoners, but it states that only the Court of Appeals for the District of Columbia can review military commission decisions and hear habeas corpus petitions of military prisoners challenging their detention.
In 2006, the Supreme Court held in
Hamdan v. Rumsfeld
that certain military commission procedures violate international and domestic law.
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Specifically, the Court ruled that prohibiting a defendant from attending his own trial, admitting testimony obtained through coercion, and denying the defendant access to classified information violate both the Geneva Conventions and the US military’s Uniform Code of Military Justice (UCMJ). Based on these violations, the Court found that the military commissions as they were constituted at the time were unlawful.
Hamdan v. Rumsfeld
that certain military commission procedures violate international and domestic law.
85
Specifically, the Court ruled that prohibiting a defendant from attending his own trial, admitting testimony obtained through coercion, and denying the defendant access to classified information violate both the Geneva Conventions and the US military’s Uniform Code of Military Justice (UCMJ). Based on these violations, the Court found that the military commissions as they were constituted at the time were unlawful.
Reacting to the
Hamdan
decision, Congress passed the Military Commissions Act in 2006 explicitly authorizing trials by military commission for “unlawful enemy combatants,” including members of the Taliban and al-Qaeda. The act strengthened procedural protections for defendants in military commissions. The act also included a double jeopardy prohibition barring a defendant from being tried more than once for the same crime. However, the act further limited the jurisdiction of the civilian court system to hear appeals; beyond reaffirming that only the Court of Appeals for the District of Columbia could hear military commission appeals, it barred all other civilian courts from reviewing detainees’ habeas corpus petitions.
Hamdan
decision, Congress passed the Military Commissions Act in 2006 explicitly authorizing trials by military commission for “unlawful enemy combatants,” including members of the Taliban and al-Qaeda. The act strengthened procedural protections for defendants in military commissions. The act also included a double jeopardy prohibition barring a defendant from being tried more than once for the same crime. However, the act further limited the jurisdiction of the civilian court system to hear appeals; beyond reaffirming that only the Court of Appeals for the District of Columbia could hear military commission appeals, it barred all other civilian courts from reviewing detainees’ habeas corpus petitions.
In 2008, the Supreme Court in
Boumediene v. Bush
struck down as unconstitutional the act’s ban on detainees’ habeas corpus rights.
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The Court ruled that Guantanamo Bay is similar enough to US territory that detainees have a constitutional right to petition for habeas corpus. Justice Kennedy’s majority opinion noted, “Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.”
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Boumediene v. Bush
struck down as unconstitutional the act’s ban on detainees’ habeas corpus rights.
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The Court ruled that Guantanamo Bay is similar enough to US territory that detainees have a constitutional right to petition for habeas corpus. Justice Kennedy’s majority opinion noted, “Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.”
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During this time, KSM was brought before a military commission. He refused legal representation and, along with Ramzi bin al-Shibh, Mustafa al-Hawsawi, Walid bin Attash, and Ammar al-Baluchi, attempted to plead guilty and request the death penalty.
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Despite his hopes, death by execution was not in the cards at this juncture for KSM and his comrades, as the military commissions were suspended pending indefinite review by the incoming Obama administration.
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Despite his hopes, death by execution was not in the cards at this juncture for KSM and his comrades, as the military commissions were suspended pending indefinite review by the incoming Obama administration.
During the 2008 presidential campaign, President Obama sharply criticized the military commission system and declared that, if elected, he would “reject the Military Commissions Act.”
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“By any measure,” then-Senator Obama said in June 2008, “our system of trying detainees has been an enormous failure.” In the days immediately following his inauguration, President Obama followed up on his pledge by issuing Executive Order 13492, directing the secretary of defense to immediately take steps to halt all referrals to military commissions and to stay all pending proceedings.
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“By any measure,” then-Senator Obama said in June 2008, “our system of trying detainees has been an enormous failure.” In the days immediately following his inauguration, President Obama followed up on his pledge by issuing Executive Order 13492, directing the secretary of defense to immediately take steps to halt all referrals to military commissions and to stay all pending proceedings.
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Nevertheless, the Obama administration’s Guantanamo review panel believed certain individuals could not be tried in civilian court.
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During mid-2009, an interagency task force of attorneys determined which detainees were to be tried in a new military commissions system.
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President Obama noted, “Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered.”
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Lawyers worked under the presumption that detainees would be tried in civilian court unless they found a compelling reason not to permit a civilian trial. The president tasked Attorney General Eric Holder with making a final determination of which system each detainee would see during his day in court.
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During mid-2009, an interagency task force of attorneys determined which detainees were to be tried in a new military commissions system.
92
President Obama noted, “Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered.”
93
Lawyers worked under the presumption that detainees would be tried in civilian court unless they found a compelling reason not to permit a civilian trial. The president tasked Attorney General Eric Holder with making a final determination of which system each detainee would see during his day in court.
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In late 2009, the attorney general announced that KSM and four others accused of planning the 9/11 attacks would be tried in civilian court in New York City. He added that five other detainees accused of planning the October 2000 attack on the USS
Cole
would receive trials by military commission. One of the rationales offered publicly for using different trial systems for the two groups of detainees was that the USS
Cole
was a military target, thereby making the attack a crime subject to military trial. As noted by former top Justice Department officials Jack Goldsmith and James Comey, this rationale failed to acknowledge that the Pentagon itself, targeted on 9/11, could be considered a military target. Goldsmith and Comey speculated that the true reason for using different trial systems for the two groups of suspects is that the limited evidence against the
Cole
suspects admissible in federal court was much weaker.
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Both decisions proved controversial.
Cole
would receive trials by military commission. One of the rationales offered publicly for using different trial systems for the two groups of detainees was that the USS
Cole
was a military target, thereby making the attack a crime subject to military trial. As noted by former top Justice Department officials Jack Goldsmith and James Comey, this rationale failed to acknowledge that the Pentagon itself, targeted on 9/11, could be considered a military target. Goldsmith and Comey speculated that the true reason for using different trial systems for the two groups of suspects is that the limited evidence against the
Cole
suspects admissible in federal court was much weaker.
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Both decisions proved controversial.
Intense national political pressure, questions about cost and security, and parochial concerns derailed the civilian trial in New York. The list of prominent lawmakers who opposed putting KSM on trial in New York included the governor of New York, the mayor of New York City, and several senators from both sides of the aisle.
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Mayor Michael Bloomberg said on television, “There are places that would be less expensive for the taxpayers and less disruptive for New York City. For example, military bases away from central cities where it is easier to provide security at much less cost.”
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NYPD commissioner Ray Kelly raised the prospect that a trial would require the installation of some 2,000 checkpoints.
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Finally, the question remained, If KSM were acquitted, what would happen? Would he be released a free man on the streets of the United States?
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Mayor Michael Bloomberg said on television, “There are places that would be less expensive for the taxpayers and less disruptive for New York City. For example, military bases away from central cities where it is easier to provide security at much less cost.”
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NYPD commissioner Ray Kelly raised the prospect that a trial would require the installation of some 2,000 checkpoints.
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Finally, the question remained, If KSM were acquitted, what would happen? Would he be released a free man on the streets of the United States?
Since many US allies view the military commissions system—even with procedural protections in place—as less than completely legitimate, trying detainees by military commission had the adverse effect of decreasing the likelihood that other countries would cooperate by providing critical legal assistance. In 2009, when federal prosecutors began to build a criminal case against KSM for a civilian trial, they found far greater cooperation from US allies; Germany, France, and Great Britain volunteered evidence and witnesses for the trial.
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Furthermore, military commissions have not yet been successfully employed on a broad scale to try suspected terrorists and other enemy combatants. For instance, only a handful of people have been convicted by the US through military commission trials. In contrast, hundreds have been convicted in federal court of terrorism-related crimes. To add injury to insult, sentences handed down by military commissions tend to be lighter than civilian ones.
At the time of this writing, efforts to identify a suitable location for KSM’s trial in either civilian or military court remain ongoing.
SOME OF
the changes to the Military Commissions Act desired by the Obama administration were codified into law in the Military Commissions Act of 2009, passed as part of the National Defense Authorization Act of 2010. The new law established that statements obtained through torture or cruel, inhuman, or degrading treatment are to be excluded from evidence.
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Defendants are granted the right to attend their complete trials and examine all evidence presented against them. Furthermore, military lawyers were required to disclose any exculpatory evidence to the defense.
the changes to the Military Commissions Act desired by the Obama administration were codified into law in the Military Commissions Act of 2009, passed as part of the National Defense Authorization Act of 2010. The new law established that statements obtained through torture or cruel, inhuman, or degrading treatment are to be excluded from evidence.
100
Defendants are granted the right to attend their complete trials and examine all evidence presented against them. Furthermore, military lawyers were required to disclose any exculpatory evidence to the defense.
Although they acknowledged that the amendments offered significant improvements, civil liberties groups remained unsatisfied with the changes. The American Civil Liberties Union still asserts that the military commissions system represents a “second class system of justice,” and that the commissions are “not only illegal but unnecessary.”
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SO, WHAT
to make of the brutalized, sociopathic 9/11 mastermind, languishing in legal limbo in an island prison complex that probably should have been shuttered years ago? Finishing al-Qaeda leaders by taking them alive exposes the contradictions and compromises of the ad hoc post-9 /11 US system. The usual linear progression of capture, interrogation, court trial, conviction, and incarceration, which worked to successfully and legitimately disarm terrorists such as Ramzi Yousef, shoe bomber Richard Reid, Timothy McVeigh, and others, has been compromised by some of the short-term actions taken by the US government.
to make of the brutalized, sociopathic 9/11 mastermind, languishing in legal limbo in an island prison complex that probably should have been shuttered years ago? Finishing al-Qaeda leaders by taking them alive exposes the contradictions and compromises of the ad hoc post-9 /11 US system. The usual linear progression of capture, interrogation, court trial, conviction, and incarceration, which worked to successfully and legitimately disarm terrorists such as Ramzi Yousef, shoe bomber Richard Reid, Timothy McVeigh, and others, has been compromised by some of the short-term actions taken by the US government.
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