Justice and the Enemy Page 15

  On the other side, the government was able to produce substantial evidence, including his purchase of the truck used in the bombing, his giving a cell phone to the suicide bombers, his being in the company of the Al Qaeda cells that executed the attacks, and his having in his apartment a detonator that the F.B.I. claimed was “exactly like those used in the bombings.” 57

  The fear of conservatives that Ghailani’s trial would be turned into an anti-American circus was not realized, but neither were the hopes of those on the left that the trial would draw harsh criticism of the Bush administration’s detention and interrogation policies. Indeed, Judge Kaplan rejected a defense request that he dismiss the indictment because of the allegations that Mr. Ghailani had been treated harshly, and he also ruled that the long delays in bringing him into court had not violated his right to a speedy trial.

  Subsequent reports from the jurors revealed that as they deliberated, one of their number (inevitably described as the “rogue juror” of legend) held out to acquit on all charges. On November 16, the jury asked the judge whether Ghailani needed to know the specific objectives of the conspiracy to be convicted. The next morning, the judge told them, “Yes” and later that day the jury reached a decision—one that the “rogue” amongst them was prepared to accept. It was shocking.

  When the charges for the murder of the 284 embassy victims were read out one by one, the jury foreman announced the verdict to each: “Not Guilty . . . Not Guilty . . . Not Guilty.” Ghailani was convicted of only one charge out of 285: conspiring to destroy the U.S. government buildings in which those victims died.

  Judge Kaplan praised the jury as “people who are not beholden to any government, including this one.” But the verdict was dismaying, especially to the families of all those murdered—to them justice had clearly been denied. The Department of Justice made the best of the situation: “We respect the jury’s verdict and are pleased that Ahmed Ghailani now faces a minimum of twenty years in prison and a potential life sentence.” 58 But the case was a serious setback to Eric Holder’s hopes of using the civilian courts to try terrorists.

  During the trial, Judge Kaplan had noted that Ghailani’s “status as an ‘enemy combatant’ would probably permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were not found guilty in this case.” This raised a vital question: would federal trials really showcase American justice if the government insisted on its right to imprison indefinitely even those who had been acquitted? 59

  In January 2011 Judge Kaplan announced that he had gone for the maximum sentence—life, thus rejecting the defense’s plea for leniency because of the jury’s verdict and because of Ghailani’s alleged mistreatment during his interrogation. Kaplan said that whatever Ghailani had suffered “pales in comparison to the suffering and the horror he and his confederates caused.” He dismissed the defense’s claim that Ghailani was an innocent abroad who had no idea of the consequences of his actions; the judge said that he knew and intended that people would be killed in the attack. “This crime was so horrible,” said Kaplan. “It was a coldblooded killing and maiming of innocent people on an enormous scale.” The defense immediately said they would appeal the sentence.

  There will be no consensus on the Ghailani trial and verdict. The most vitriolic reaction came from the Center for Constitutional Rights (CCR), which issued a statement that began, “CCR questions the ability of anyone who is Muslim to receive a truly fair trial in any American judicial forum post 9/11.... If anyone is unsatisfied with Ghailani’s acquittal on 284 counts, they should blame the C.I.A. agents who tortured him.” 60

  These were shocking words; according to CCR, the whole panoply of American justice, whether civilian or military, should be dismissed because of the racism of the system. This was worse than nonsense—it was a deliberate anti-American smear from a powerful left wing organization that always claims the high ground in defending America’s great legal traditions. o

  In Commentary magazine, John Podhoretz decried the “astounding and vicious vulgarity” of CCR’s comments. CCR was, said Podhoretz, an “evil organization. In the guise of protecting civil liberties, it uses the American legal system to attack the American political system and the American way of life. Its approach is to offer aggressively self-righteous defenses of the morally indefensible—i.e. the logic that says a waterboard is worse than a killing—in a classic bait-and-switch according to which any form of state action against anyone is unacceptable unless that person happens to be a cop, a soldier, or an official of the U.S. government, in which case he is guilty until proven innocent.” 61

  Other commentators argued that the Ghailani case showed the innate superiority of the criminal courts. Diane Marie Amann, professor of law at the University of California, argued that traditional and unquestionably legitimate methods of criminal adjudication had succeeded. Ghailani “was not tried before a novel military commission sitting at some unreachable site, but rather before a jury convened in an open courtroom in America’s largest city.” The judge had handled the torture claims with care, refusing to dismiss the prosecution “on account of outrageous government misconduct” but excluding “illegally obtained information.” The trial, she concluded, “confirmed the capacity of federal criminal courts to protect both individual rights and public safety.” 62

  These points can all be argued, but the fact remains that the Ghailani jury came perilously close to acquitting him altogether, which would have been a catastrophe for the U.S. government, let alone the families of the victims. Either the government would have had to let him go, which would have been a political humiliation at home and abroad with immense strategic consequences; or they would have had to detain him despite the verdict of innocence. Quite apart from the damage that would have done to America’s reputation, such an action would have raised the question that Senator Grassley had asked of Eric Holder a year before: If prisoners are going to remain incarcerated even if declared innocent, what is the point of putting them on trial at all? Indeed, would this not completely undermine the concept of a fair trial in the civilian court system, not only for accused terrorists but for all defendants? Remember Justice Jackson’s stricture that prosecutors should never put a suspect on trial unless they understand he could walk free. That same warning applies to military commissions as to federal courts.

  Michael Hayden, the former C.I.A. director, said after the verdict that “the first priority must be intelligence gathering.... Intelligence should not be placed in a law enforcement model. To adopt this policy would be at our own peril.” Hayden thought the choice should be either to hold detainees indefinitely as enemy combatants or, if that was deemed unethical, then to try them before military commissions. 63

  Similarly, former attorney general Michael Mukasey argued that “to take someone who helped to kill 285 people and to convict him of conspiring to destroy government property is a cruel travesty.... A different outcome could have been expected at Guantanamo because of the different rules that pertain there.... There is no question that valuable information was gotten from him that led to evidence that could have been used against him in a military commission.” 64

  But that is not certain. Indeed, in his order rejecting the witness whom he described as “fruit of the poisonous tree,” Judge Kaplan pointed to restrictions against the use of evidence obtained by “enhanced interrogations” in military trials, and suggested that a military court would have done the same.

  Weighing such uncertainties, Benjamin Wittes concluded, “It is easy to assert that things would have been different in a commission but there is scant support for that in either the rules of the commissions themselves or in the constitutional law that lies beneath them.” 65

  The tendency to think that only a federal trial can deliver real justice is widespread but not, in the case of the United States in 2011, justified. The safeguards that have been built into the military commissions a
nd successive judgments of the Supreme Court since 2001 guaranteed that defendants had ultimate rights of appeal almost identical to those convicted in federal court. Al Qaeda defendants were all presumed innocent, their guilt had to be proved beyond reasonable doubt, and each had the right of appeal all the way to the Supreme Court. Apart from the differences in the composition of the jury, the biggest remaining distinctions between the two systems were that the military commissions would allow hearsay evidence to be produced, and classified information would be more strictly protected.

  There are strong arguments for both federal and military trials. One C.I.A. officer, himself involved in the interrogation of Al Qaeda detainees, said to me, “Certainly Al Qaeda required a military response. But in the United States, criminal tools were the only ones we should have used. The two battlefields are different.... We are winning this campaign, slowly degrading Al Qaeda, its affiliates, and its now-debunked message. One of its main goals is to be seen as an opponent on a military field with us. By trying them in military tribunals, we play up to this self-image. I’d like to see them portrayed not as terrorists, which glorifies them, but as common murderers, which they hate (and against which they have little defense). Some view criminal proceedings as weak; I view them as exactly the opposite, our treating a common criminal with only the merit he deserves.” 66

  By complete contrast, one senior military lawyer, a judge advocate general who prosecuted detainees at Guantanamo in 2010, insisted to me that “Terrorists such as Khalid Sheikh Mohammed should be tried by professional warriors precisely because they are fanatics who illegally presume to be warriors. The laws of war have been developed over time to minimize the disastrous effects of war on civilization.

  “Men such as KSM who are openly contemptuous of the laws of war must be anathemized while at the same time those laws are maintained. Far from enjoying exalted status as warriors at a military commission, KSM and his co-conspirators will be tried by professional warriors and found wanting.”

  There is a simple truth. Military and federal courts are both needed. Michael Walzer, the philosopher whom I quoted earlier on torture, made the wise point that the anguished debate over whether 9/11 was an act of war or a crime was foolish. It was not one or the other—it was both.

  “The struggle with Al Qaeda is police work wherever police work is possible—in West European countries, for example, which constitute a zone of peace, where Islamist terrorists are rightly regarded as criminals. . . . In Afghanistan in 2001, however, the struggle with Al Qaeda required a war—because the Taliban regime provided Al Qaeda with all the benefits of sovereignty. That war is still going on.... For Al Qaeda and for the United States, Pakistan is not a zone of peace.... Even if we acted in accordance with the crime paradigm, we have enemies who are committed to the war paradigm. And that requires that we be committed to it, too, some of the time.” 67

  There was an irony to such continuing discussion at the beginning of President Obama’s third year in office. The Bush administration had sought to capture, detain, and interrogate terrorist suspects—harshly sometimes—and then send them to military trial. The Obama administration had condemned such policies but it had failed to devise an alternative framework that was politically viable. However, the administration was proving, in one sense, more ruthless than its predecessor. Rather than chasing and detaining Al Qaeda suspects for the intelligence they could offer, it was killing more and more of them outright by targeting them with high-altitude drones over Pakistan, Afghanistan, and other countries. Which is the more moral solution? That is now the question.

  Chapter 7

  VERDICTS

  IN 2010 THE OBAMA ADMINISTRATION ORDERED the targeted killing, by unmanned Predator drone aircraft, of a U.S. citizen, Anwar al-Awlaki, then residing in Yemen. This one man—and the decision to try and kill him—showed most graphically how the continuing war against Al Qaeda and other terrorist groups had changed. (The Bush administration was not known ever to have targeted an American citizen for killing. 1 But then it had never confronted a major Al Qaeda operational leader who was a U.S. citizen.)

  President Obama had quietly changed U.S. priorities in what was no longer called the global War on Terror. Guantanamo, rendition, and enhanced interrogation had earned the opprobrium of much of the world, including the U.S.’s European allies—though official European protests were often hypocritical: allied governments knew how serious the threats to them from jihadists (some their own citizens) remained and how much they depended on American reach and intelligence.

  President Obama announced in January 2009 that he would close Guantanamo within a year. (The Bush administration had also diminished its role—only two new detainees had been sent there since September 2006.) Bagram, in Afghanistan, was still open for the detention of men caught in Afghanistan and Pakistan. But efforts to capture major Al Qaeda figures almost ceased. Instead, Obama killed them; he made targeting by drones, Unmanned Aerial Vehicles (UAVs), the centerpiece of U.S. counterterrorism operations. There were not many alternatives— large numbers of Al Qaeda had moved into the tribal areas of Pakistan, where the United States had almost no access on the ground.

  The UAVs, originally observation birds, hover at ten thousand feet. Controlled from afar—often from within the United States—they are equipped with remarkable long-range cameras and other sensors, which can detect even the movement of specific individuals two miles below. Operated by the C.I.A. and the U.S. military, they were used first for surveillance over Afghanistan and Pakistan.

  Drones had been developed into missile platforms under the Bush administration but Bush used them relatively rarely as attack weapons until the last months of his presidency. He feared civilian casualties and the resultant accusations of war crimes by those who, in the United States and around the world, had demonized him and his administration. 2

  Barack Obama faced no such problem either in his 2008 campaign or when he became president in January 2009. The worldwide admiration (sometimes adulation) for the new president was so strong that his war plans were not dismissed as evil or risible. In the case of drones, this was remarkable because while improper interrogation is an abuse of a person’s rights, an attack by drones is, in a phrase used in Vietnam, “termination with extreme prejudice.” The widespread public acquiescence (in both the U.S. and Europe) to aerial killing by President Obama was a powerful demonstration of the way in which political and “moral” judgments can be driven by perceptions of personality and politics.

  Throughout 2009 and 2010 a growing number of Taliban and Al Qaeda suspects in Afghanistan, Pakistan, Somalia, and Yemen were targeted. In September and October 2010, there were more drone attacks in the tribal areas of Pakistan than in all of 2008, President Bush’s last year in office. This particular spike was reported to be an attempt to disrupt Islamist plans to repeat in Europe the horrifically successful terrorist attack on Mumbai at the end of November 2008. On that occasion a small group of young men from the Pakistani terrorist group Lashkar-e-Taiba, armed with automatic rifles and grenades, were able to terrorize the city as they carried out a string of murders in hotels, cafés, a railway station, and other targets. True to the vicious anti-Semitism of Islamism, they also sought out an almost unknown Jewish hostel in the city and murdered the young couple in charge of it. Their “success” in causing hundreds of deaths and incalculable economic damage showed how much havoc lightly-armed terrorists can create.

  At the end of 2010 there were intelligence indications of similar attacks on European cities being planned in the border areas of Pakistan and Afghanistan. German security forces were placed in a state of emergency after intelligence suggested a jihadist attack on the Reichstag in Berlin. 3 U.S. defense of its allies increased. On October 4, 2010, drones struck a mosque in Mir Ali, a town in North Waziristan, and eight German Muslims were reported killed. There were now so many Germans training as terrorists that there were whole “German Taliban villages” in Waziristan.

  Br
itish Islamists were also targeted. Britain’s laxity in dealing with radical Islamists had, as we have seen, earned the capital the name Londonistan amongst security services. Many of the most violent British jihadists had families in Pakistan and trained there. p Indeed, Prime Minister Gordon Brown said that three quarters of Islamist terrorist plots in Britain originated in Pakistan. 4

  American human rights organizations such as the ACLU and the Center for Constitutional Rights, already dismayed by Obama’s failure to disengage America totally from Bush’s military missions, began a campaign to delegitimize targeted attacks. They and others on the left characterized the use of drones as the cowardly, secretive C.I.A. committing illegal assassination, “unlawful killing,” from the skies.

  International law allows countries to target individuals or groups that threaten them. In the case of the United States, specific authority for such targeting derives from Congress’s original Authorization for the Use of Military Force of September 18, 2001. Any act of self-defense must, of course, meet the basic legal requirements of necessity and proportionality and that raises questions of “collateral damage,” the number of innocent civilians killed in a targeted attack upon a terrorist. International legal standards on proportionality are deliberately vague; the customary rule is only that the harms expected from any attack must not be “excessive” in relation to the expected benefits. The law requires that commanders act in good faith, not according to some magic formula.

  When the Iraq war began in 2003 the U.S. had only a few dozen, relatively simple drones. By 2011 there were over seven thousand and they were far more advanced. Some had a wingspan of forty-eight feet and needed runways to take off, while others could be carried by a soldier in his backpack and launched by hand. There has also been great progress in sensor technology, which has dramatically increased the U.S.’s ability to track and target enemy forces. The Pentagon is now experimenting with drones the size of small birds, even insects like dragonflies. Such technical wizardry seems extraordinary but, according to Dr. P. W. Singer, a senior fellow at the Brookings Institution and an expert on robotics in warfare, the drones of 2011 were still like Model-T Fords. Robotics, he argued, would in the next few years have a revolutionary effect on war and society. 5