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Special Report
Survival First, Lawfare Second: The Perils of Suicide-Pact Legalism
In giving trial rights to terrorists that soldiers fighting lawfully did not enjoy in earlier times we are not helping ourselves.
The June 2010 collapse of the moderate, democratically elected Pakistani government set off a scramble for control of Islam’s atomic arsenal, its estimated 60 – 120 atomic bombs stored at locations kept secret from the United States. Days later American Special Forces captured a senior pro-Taliban official from Pakistan’s Inter-Services Intelligence agency. Secure in the knowledge that official American guidelines limit interrogation to the Army Field Manual, the ISI official laughed in the face of his American captors: “You will see Taliban control all Pakistan’s A-bombs within days.” Lawyers for the Obama Administration confirmed that no “enhanced” techniques could be used to elicit information, absent certainty that the Taliban would either use the bombs, or transfer them to a group that would use them. Thus the “ticking bomb” scenario, oft cited as an exception to the ban against torture, did not apply. A week later the new Taliban government announced it had gained control over the entire atomic arsenal of Pakistan. On September 11, 2010 a nuclear device detonated in Lower Manhattan, killing 500,000 people and leveling the financial district.
President Obama explained the next day why interrogators did not pressure the ISI officer to talk, citing his remarks at CIA headquarters on April 20, 2009:
“I believe that our nation is stronger and more secure when we deploy the full measure of both our power and the power of our values, including the rule of law…
“Al-Qaeda is not constrained by a constitution. Many of our adversaries are not constrained by a belief in freedom of speech, or representation in court, or rule of law. I’m sure that sometimes it seems as if that means we’re operating with one hand tied behind our back, or that those who would argue for a higher standard are naïve. I understand that….
“What makes the United States special, and what makes you special, is precisely the fact that we are willing to uphold our values and our ideals even when it’s hard, not just when it’s easy; even when we are afraid and under threat, not just when it’s expedient to do so.”
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. In the mid-1990s Sheikh Omar Abdul Rahman and nine-co-conspirators were convicted in federal court of plotting to blow up New York City landmarks, and given long sentences. In the bargain, Osama bin Laden learned that he was on a terror watch list, as were other top confederates. The upshot was that a valuable source of clandestine intelligence was compromised, as key al-Qaeda members were warned that they were being watched.
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?”
About the Author
Letter to the Editor View all comments (48) | Leave a comment
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Andrew B| 3.26.10 @ 7:59AM
If our government is to be consistent, it should track down the families of the Nazi saboteurs we executed in World War 2 and, at the very least, offer them a formal apology. Perhaps we should throw in some sort of financial restitution.
If such treatment of enemy combatants is too terrible to contemplate today, surely it is a stain on our national honor.
I wonder if Major Andre or John Wilkes Booth have any living descendents. What can we offer them...
Alan Brooks| 3.26.10 @ 11:14AM
'[...] John Wilkes Booth have any living descendents. What can we offer them...?
Acting contracts for the next two Michael Moore flicks, 'Fahrenheit 1865' and 'Bowling for Columbia'
Liberal Reader| 3.26.10 @ 8:02AM
Ronald Reagan trumpeted America's willingness to give terrorists a fair trial as a sign of this country's great strength. George W. Bush's administration presided over the trials of more than 100 terrorists in federal courts.
Trying criminals is something federal courts do remarkably well. Incarcerating criminals is something federal prisons do remarkably well.
Terrorists are not warriors or soldiers. They wish to be regarded as such, but there are few people -- here or abroad -- who actually consider them to be warriors or soldiers. They are dangerous criminals.
To be sure, terrorism represents a threat to society unlike the threat of its nearest criminal cousin -- organized crime.
The government must be empowered to act more aggressively against potential terrorist acts, before they occur, than it is against other kinds of crime.
For this reason, the metaphor of "war" is probably not all that terrible. It helps us understand that the government is going to need unusual powers with respect to detecting and arresting terrorists, and we need to go against our good American instincts and give the government those powers. I freely admit that people on the left -- including myself -- were to jumpy when it came some of the measure the Bush administration put into place to fight terrorism.
But when we catch a man with a bomb in his shorts, and the criminal conspiracy is exposed, there is not better place for that man than federal court, facing criminal charges. Let him have his lawyer. Remember, extending him rights is FOR US, not for him, and such an extension shows the world our strength, like Reagan said it does.
Jeff| 3.26.10 @ 3:29PM
Liberal Reader,
Your response is nothing but liberal rhetoric. Regan may in fact have said that - he was a politician - the difference is that he would never would have done it. Answer this question: what would you do if you were called to jury duty for the trial for KSM and Osama Bin Laden issued the fatwa as noted by the author, that the Jury and their families be killed. Would you have the fortitude to risk your life and the lives of your family members or would you find a way to get out of jury duty so that someone else would have to make that awful decision? The loyal readers of this site know what you would do! Do us all a favor and put your head where it belongs, a place where it will do the most good for the American people - in the sand! By the way, Al-Qaeda doesn't kill by just putting a bullet in your head, they like to torture you fist so that they can watch you suffer.
Alan Brooks| 3.28.10 @ 1:07AM
"[snip] nothing but liberal rhetoric."
Liberal Reader is merely gullible; pure rhetoric isn't rhetoric if it is sincere.
The great flaw of liberalism is also the main flaw of utopian conservatism: naivite'.
John Wohlstetter| 3.31.10 @ 11:20AM
Liberal Reader -
Giving due process rights to common criminals is indeed, as you put it, something we do for US. But giving more legal rights to unlawful combatants in this war than we gave lawful combatants in prior wars is doing something for THEM. What incentive does anyone have now to fight lawfully against Americans, if they face no legal penalty for fighting unlawfully?
JW
Melvin| 3.26.10 @ 8:18AM
You know as an Marine Infantryman, I did not want to place an additional burden upon those Marines that I was responsible for with legal bull squeeze that changes with whomever is sitting on the throne in Washington D.C.
On the battlefield time is not a luxury to thumb through annals of law books, or call the local JAG if it was OK to shoot back as someone who was shooting at us.
At a Grunt's leve,l we hope to hell that all this legal crap is settled by the suits long before they send us into combat an not while the shooting is in progress.
It is easy for attorney's in their Armani's diligently debating in nice climate controlled court rooms for a more humane way in dealing with the bad guys. This legal bloatavating is not conducive to the moral and welfare of our fighting forces in keeping us from getting ate alive by RPGs.
When my platoon went into combat during the first Gulf War we were explained the laws of war, and how we were to conduct ourselves in combat and meeting with the enemy.
These were simple, easy to follow and didn't get Marines killed needlessly because they hesitated for fear of being prosecuted by the very government that place in into harms way to begin with.
When our fighting men and women are in the midst of a heated exchange of gunfire with the enemy is so much to ask for, that government bureaucrats please, !S T A Y T H E H E L L O U T O F T H E W A Y!
Alan Brooks| 3.26.10 @ 11:08AM
And notice, when someone's close relation or friend gets murdered, all of a sudden a defense attorney isn't necessarily a good guy anymore.
Like, even when a liberal gets mugged...
Tim| 3.26.10 @ 2:52PM
If someone breaks into my house in the dead of night, I sure as hell hope my call for help is answered by a man like Melvin.
Margie| 3.27.10 @ 5:02PM
I second that emotion.
Hamish Stewart| 3.26.10 @ 10:08AM
It is unfortunate that in your interesting article you should have repeated the canard about Churchill having known about the German intention to bomb Coventry. This claim has been absolutely refuted by all reputable historians of the Second World War including all the specialists in the use of Ultra during that war. I suggest you read the appropriate volume of the Offocial british History of Intelligence in the Second World War.
John Wohlstetter| 3.31.10 @ 11:31AM
Mr. Stewart -
My source for the Coventry story is "The Ultra Secret" by F.W. Winterbotham (1974), written by the intel officer who first revealed the Ultra story, in which he had been part in WW-II.
JW
Tim| 3.26.10 @ 2:50PM
We have armies because there comes a time where talk and fair play no longer make sense.
Some of you are fine with subverting the constitution for the sake of universal healthcare, but outraged over "enhanced interrogation.
Drew| 3.26.10 @ 3:27PM
Are you seriously arguing that because there was ONE U.S. serviceman onboard an RAF reconnaisance plane, (that helped the Royal Navy sink the Bismarck in 1941)- that we should junk the whole concept of Habeus Corpus?
You know - Habeus Corpus - probably the single most important legal doctrine to arise in the past thousand years or so, at least when it came to promoting a just balance between the rights of individuals and the power of the state.
What the hell are you smoking?
Nick| 3.26.10 @ 7:09PM
Hey, it's Drew, everybody! The Molech worshiping "progressive" troll.
John Wohlstetter| 3.31.10 @ 11:12AM
Ken -
Thanks much for your comments. I am glad you liked my article. I think that Pres. Obama got his worldview not as a child in Indonesia, then a place of moderate Islamic presence. Rather, it came from his radical connections in school & then in Chicago.
JW
John Wohlstetter| 3.31.10 @ 11:17AM
Drew -
One person is all it takes re FDR role from a legal standpoint. Re Habeas corpus, I regard, for reasons noted in my article, the Supreme Court's ruling as based upon a bending of the concept of sovereignty. The dissenters in the 2008 case cited a 1950 case, Johnson v. Eisentrager, that should have been controlling precedent in the case decided in 2008.
JW
Nick| 3.26.10 @ 7:23PM
I get frustrated whenever I read a column like this.
I am reminded of a story we are all familiar with, but of which not many know the details. The trial of Maj. Andre. I didn't know anything about it until a few years ago. I encourage you to look it up.
Maj. Andre was the cheif intelligence officer for the C. in C. of the British forces. He was caught, out of uniform, with the plans for West Point, given to him by Benedict Arnold. This was a violation of the Laws of War, drawn up by the Continental Congress.
Maj. Andre was caught, interrogated, held, charged, tried, convicted, and executed in TEN DAYS!
Gen. Washington even tried to trade Andre for Arnold during this time, but failed. Maj. Andre was an Officer and a Gentleman, not a lowlife terrorist, and he was still hanged in public.
This is what should've happened to all unlawful combatants, especially Saddam.
If it was good enough for the Father of Our Country, it's good enough for me.
Margie| 3.27.10 @ 3:29PM
Washington was a righteous man. I share in the longing for righteousness in the hearts of our leaders like you do. I think that's why we are told to pray for our leaders in the Bible. To me, with the present crop of leaders and their blatant Socialistic and really, Fascistic policies and methods of "leading" us, it is easier said than done, but pray we must. I pray they have a change of heart (and mind) and turn for their ways.
That said, I fully agree with your post. If it was good enough for General Washington, it's good enough for me.
Margie| 3.27.10 @ 3:37PM
* s/b turn from, not for, their ways!
John Wohlstetter| 3.31.10 @ 11:28AM
Nick (& Margie) -
Major Andre was not a terrorist member of a group seeking WMD to use against us. The Father of our Country lived at a time when gunpowder was the biggest threat from weapons we faced. Intel we gleaned from detainees told us more about al-qQeda than we had ever known before, yielding almost all the useful intel about the group's inner workings that we now have.
I refer you again to the quotation in my article from Federalist 41, on wars and the Constitution, from James Madison, Father of the Constitution.
JW
Nick| 4.4.10 @ 1:00AM
Mr. Wohlstetter,
Thank you for your reply.
It is the facts of your article that frustrate me, not the article itself. How our courts can be used in this way boggles my mind.
My point was, yes, Maj. Andre was not a terrorist. He was an Officer and a Gentleman. He was the head of British intelligence. Gen. Washington was a big believer in intelligence and spycraft. He knew the importance of Andre's capture.
But, Maj. Andre broke the Laws of War. He became an unlawful combatant the minute he put on civilian clothes. He was hanged like a criminal, even though he requested to be shot. like a soldier should.
Even though Andre was a treasure trove of intel. He was the equivalent of capturing Ayman al-Zawahiri, al Qeada's #2. Gen. Washington was even willing to trade Andre for Arnold.
Also, in preparation for Operation Overlord, the British took all the German spies they had captured, and told them they would be tried the next morning and shot, if they did not agree to help them deceive German intelligence.
Why didn't we at least do that?
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Ken (Old Texican)| 3.27.10 @ 7:26AM
John C.
Excellent article, and an extremely well constructed argument. Thank you for the effort that went into it.
I lived and worked all over the middle east, and my responsibilities required a LOT of interface with the rulers and their "aristocracies" for lack of a better term.
I think I have a pretty good first hand understanding of how they think...and act...in their own "Uhma" (sp?) and out of it in Europe and America.
Their world views are absolutely "Klingon" to ours to use Tom Clancy's term.
First, they have that little "shrug" palms up, when they state from the heart..."I am merely a slave to Allah".
Second, everything ...everything ...is hierarchical in interpersonal relationships. (You are above me, or below me.)
Heh, I managed to remain "above" them, in the sense that my men and I could accomplish stuff they simply were incapable of doing for themselves.
Third, historically, their civilization has grown in such absolutely destitute circumstances, that simply picking up trash along the side of the street, can result in one's hand being chopped off for theft.
(That trash might be someone's evening cook-fire fuel.)
.....just a few of the reasons that make me conclude that they do the muslim equivalent of ROTFLMAO when we even discuss...constitutional rights or protections...for captured "warriors".
Sir, the harsh question that must be asked:
Is Mr. Obama possessed of those world-views/interpersonal views from his earliest days in that culture?
Thoughts?
Nick| 3.27.10 @ 8:51AM
Ken,
Is that why there is garbage in the streets of their towns? I've been wondering about that for almost 20 years!
I was in Saudi and Iraq for Operations Desert Shield and Storm. Every time we drove through some town out in the desert, it had garbage piled up on the outskirts, and trash in the streets.
Jubayl and Dhahran were clean by comparison. If you don't count all the sand in the roads.
Thanks for solving that mystery!
Margie| 3.27.10 @ 5:01PM
Ken,
I learn so much from your posts and I so appreciate you for who you are, and what you've done. You really bring a lot of wisdom to us here.
My thoughts on your question about Obama and his outlook are that yes I think he possesses Muslim views from his youth, though I know not how deeply. But since the Bible says that, "for out of the abundance of the heart the mouth speaks" (Lk. 6:45) and since he said he would stand with his Muslim brothers, (he did say that, didn't he?) and since he has been clear that he bows to leaders who are not our friends (Saudi Kings and Communist Chinese leaders), yet has no problem snubbing our friend and ally, (Israel's Bibi Netanyahu), what are we to think?
When he says blatantly that he believes that our Constitution is OBSOLETE and sets forth to destroy it by replacing our free market system with takeovers and Socialized medicine in order to do the Marxist redistribution of the wealth of our citizens, what are we to think?
He cannot be defended by any right thinking human being.
The only question I have left is: what's next?
Ken (Old Texican)| 3.27.10 @ 8:06PM
Margie, thank you.
To answer your really pretty "zeroed in" question, let me answer this way.
We have read and heard about "obstructed elections" in November. Heck, I have expressed the same fears.
I think we must seriously consider "October surprises" from the communists, (pardon the shorthand).
I am thinking about a "September Surprise" for them....ie: the national sit-down strike by productive people you have read me write about.
Yeah, it would cause a hardship for each of us. Might screw up our respective credit ratings etc.
I am going to sit down with my employees next week and poll them on how long they could "defer paychecks" before it really bites.
See, that way we interrupt the "cash flow" to the gubmint, reminding them not to screw with the elections.
Can you imagine if 50 million one-month withholding deposits on W-2s across the country...delayed...or simply foregone ...happened?
heh 1/10th of the gubmint's cash.....just doesn't show up.
I will post this again Monday, to see if we can get some traction on the idea.
Best regards
Ken (Old Texican)| 3.27.10 @ 9:20AM
Nick,
I think the larger cities may have (finally) "authorized" specific persons to collect trash.
Also another thought. A "slave" doesn't even see trash, and poor "TRASH" don't even see the rusted out cars in front of their house.
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Active Duty| 4.7.10 @ 11:54AM
Solution:
Close Gitmo...Release all terrorists...Drop them off in the desert...Have CIA operative or Marine Recon call in potential terrorist targets...send drone and eliminate targets
We do this everyday. Judge, Jury, Executioner