President Obama's supporters are making much of how the Bush administration treated 2001 shoe-bomber Richard Reid the same way that the Flight 253 Christmas bomber has been treated: arrest, indictment, and trial in civilian criminal court. In doing so they in fact continue to perpetuate a deep division that dates back to the first days after September 11, 2001, between law enforcement and war strategies.
While plans for military tribunals were established (by Executive Order dated Nov. 13, 2001), a few weeks before Reid was arrested, former U.S. attorney Mike Sullivan, who prosecuted Reid in federal court in Boston, said that how to use tribunals and particular arrangements for them had not been settled. Sullivan said he is "confident" that had Reid landed at Logan Airport in Dec. 2003, there would have been discussion as to where Reid would be sent.
On November 28, 2001, Sen. Patrick Leahy chaired a Senate Judiciary Committee hearing that examined, among other early Bush administration practices, the order to establish military commissions. In his introductory statement Sen. Leahy said:
The President's Military Order of November 13 paves an overly broad path to the use of military commissions to try those suspected of a variety of activities. It is a marked departure from existing practices and raises a wide range of legal and constitutional questions and international implications….
As written, the Military Order does not incorporate basic notions of fairness and due process that are hallmarks of American justice. It does not specify a standard of guilt for convicting suspected terrorists.
It decrees that convictions will not be subject to judicial review, a determination that appears to directly conflict with our international commitments. It allows the Government to tailor rules to fit its proof against individual suspects."
The Vermont Democrat's criticism went well beyond military commissions:
Today and in the days ahead we will have an opportunity to explore the Executive action to charter military tribunals that bypass our civilian justice system, to permit eavesdropping on attorney-client communications without court orders, and the circumstances under which hundreds are being detained without public explanation. Whether any or all of these ideas are popular or unpopular at the moment, as an oversight committee we accept our duty to examine them.
The first military tribunal began proceedings (pdf) in November 2004 -- three years after the original Presidential Executive Order was issued -- and were promptly interrupted by a federal judge who ruled one of the defendants not properly chargeable in a military court. It was not until July 21, 2008 that a military tribunal was allowed to proceed. Several Supreme Court decisions and passage of two federal statutes, The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, delayed matters. (Congress further amended military tribunal procedure, in ways that expanded defendants' rights, in the Military Commissions Act of 2009.)
Reid was arrested Dec. 22, 2001, after his flight landed, and was indicted on January 16, 2002. The conflict between al-Qaeda and America was clearly framed in his Jan. 20, 2003 court plea sentencing hearing when Richard Reid made clear that he was at war with America and the judge rejected same (emphases mine):
JUDGE WILLIAM YOUNG: I didn't hear the last. I admit my actions and then what did you say?
REID: I further admit my allegiance to Osama bin Laden, to Islam, and to the religion of Allah. With regards to what you said about killing innocent people, I will say one thing. Your government has killed 2 million children in Iraq. If you want to think about something, against 2 million, I don't see no comparison…..
So, for this reason, I think I ought not apologize for my actions. I am at war with your country. I'm at war with them not for personal reasons but because they have murdered more than, so many children and they have oppressed my religion and they have oppressed people for no reason except that they say we believe in Allah….
As far as the sentence is concerned, it's in your hand. Only really it is not even in your hand. It's in Allah's hand. I put my trust in Allah totally and I know that he will give victory to his religion. And he will give victory to those who believe and he will destroy those who wish to oppress the people because they believe in Allah.
So you can judge and I leave you to judge. And I don't mind. This is all I have to say. And I bear witness to Muhammad this is Allah's message.
After Reid's delusional diatribe, Judge William Young spoke again, rejecting defendant's war analogy:
YOUNG: Mr. Richard C. Reid, hearken now to the sentence the Court imposes upon you (sentence details omitted).
This is the sentence that is provided for by our statutes. It is a fair and a just sentence. It is a righteous sentence. Let me explain this to you.
We are not afraid of any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before. There is all too much war talk here. And I say that to everyone with the utmost respect.
Here in this court where we deal with individuals as individuals, and care for individuals as individuals, as human beings we reach out for justice.
You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist….
So war talk is way out of line in this court. You're a big fellow. But you're not that big. You're no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders….
It seems to me you hate the one thing that to us is most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not believe as we individually choose.
Here, in this society, the very winds carry freedom. They carry it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are here in this beautiful courtroom. So that everyone can see, truly see that justice is administered fairly, individually, and discretely.
It is for freedom's seek [sic] that your lawyers are striving so vigorously on your behalf and have filed appeals, will go on in their, their representation of you before other judges. We care about it. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties….
Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow it will be forgotten. But this, however, will long endure. Here, in this courtroom, and courtrooms all across America, the American people will gather to see that justice, individual justice, justice, not war, individual justice is in fact being done.
The very President of the United States through his officers will have to come into courtrooms and lay out evidence on which specific matters can be judged, and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice.
See that flag, Mr. Reid? That's the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will. Custody, Mr. Officer. Stand him down.
REID: That flag will be brought down on the Day of Judgment and you will see in front of your Lord and my Lord and then we will know. (Whereupon the defendant was removed from the courtroom.)
Judge Young's remarks and Reid's answers tell it all. Judge Young, a Reagan appointee, was eloquent and passionate in defending the law enforcement perspective. No better defense has been made since. And surely he is right in expressing contempt for Reid's self-description as a warrior. But in treating terrorists as individual criminals Judge Young misses the sponsorship connection. It is the sponsorship by terror groups avowedly at war with America that makes Reid more than a mere common criminal. And it is the need to glean actionable intelligence from detainees that renders imperative delay in giving the Miranda warnings to arrested detainees that we ultimately try in civilian court.
But there is a message in Reid's "your Lord" and "my Lord" formulation. For Reid and al Qaeda, they are waging a religious war against America and the West. Such wars brook no compromise. Nor do they need specific actions of America -- Reid's citations are delusional -- to justify them; our mere existence suffices.
As for trials improving America's image, prior trials neither protected us on September 11, 2001, nor against terrorist acts committed before. In fact, America and Europe have been putting terrorists on trial for nearly forty years. Yet terror continued, and still continues.
In his 2001 Senate hearing remarks Senator Leahy refuted what has become a misremembered past in which everyone stood together after 9/11, realizing that America was at war. As early as in the debate over the USA Patriot Act, which an a fortnight after 9/11, Senator Leahy, plus others such as Wisconsin Democrat Russ Feingold, vigorously challenged Bush administration policies as endangering civil liberties. The storied national unity captured when 535 members of Congress sang "God Bless America" the afternoon of 9/11 lasted a matter of days.
The rest of President Obama's term will offer an empirical test of the wisdom of choosing to try bombers like Reid in civilian rather than military court, and of subordinating the gathering of actionable intelligence from detainees to prosecuting them as criminals. The arguments pro and con were perfectly opposed in the 2003 exchange between an eloquent judge and a fanatical defendant.
The Reid case resulted in lifetime incarceration. But we did not get whatever intelligence Reid might have provided, either. And pursuing some cases in civilian court makes it harder to argue for military trials in others. Our legal system looks backward, to specific facts establishing guilt for specific wrongful acts committed. Intelligence looks forward, to possible future harm.
President Obama's decision to try the Christmas bomber will deprive us of usable actionable intelligence or, if a quick plea deal is reached, force us to pay a negotiated price for information, in the form of a more lenient sentence. It is an odd calculus that forfeits the chance to get information upon first capture, when a detainee is most vulnerable and his knowledge fresh, in favor of getting it later, paid for when what if offered is less valuable. We are letting terrorists use our legal system as a weapon against us. We will now pay for information we could have had for free.
Putting intelligence gathering over punishing criminal acts was a Bush hallmark, though resisted fiercely by Congressional and court opposition. Putting Khalid Sheikh Muhammad and his fellow 9/11 conspirators on trial in federal court anywhere, let alone in New York City, was unthinkable. Not so for Team Obama.
The moving show of unity on the steps of Capitol Hill was real, but sharply limited in scope: it supported the proposition that something be done about the terror attacks and those who launched them. But what should be done, and how to do so were subjects on which full agreement was rarely reached. The fissure runs not purely along party lines, but nonetheless most of those favoring a law enforcement approach are Democrats, and most favoring a war approach are Republican. Divisions of this intensity and magnitude, dating back to the war's infancy, are not ended by persuasive argument. They are ended when one or more catalytic events take place that transform the political landscape.
In the seven years, four months, nine days that followed September 11, 2001 America was not successfully attacked from abroad. Time will tell if the Obama years match the Bush record. Should they do so, then the law enforcement model will prevail. Should America get hit again from overseas, the law enforcement model will be discredited, and the war model will regain currency in Washington.
Which model prevails will strongly influence future elections, those ever being determined, in the famous quip of English Prime Minster Harold Macmillan to a young reporter, by "events, dear boy, events."