America’s terror courts will continue to exist because they spare U.S. officials from public accountability.
It’s a pity that Kathryn Bigelow, the director of the acclaimed war-on-terror thriller Zero Dark Thirty, didn’t have the opportunity to read Jess Bravin’s meticulously reported account of America’s trial practices for post-September 11 terror suspects, The Terror Courts. If she had, she might have grasped how self-defeating the Bush Administration’s embrace of torture has turned out to be and depicted it as an egregious mistake rather than a necessary evil. Bravin, The Wall Street Journal’s Supreme Court correspondent, broke several of the earliest and most important stories about the Bush Administration’s brutal interrogation and detention program. Here he details how the case of one 9/11 defendant after the next was legally and ethically poisoned by the sadism, amateurism, and zealotry of their questioners. The interrogators and the bureaucrats who authorized their brutality posed as Hollywood tough guys, like those lionized in Bigelow’s film. In fact, as Bravin tells it, by resorting to criminal misconduct they unwittingly weakened America’s efforts to win the war on terror in countless ways for which the country is still paying.
The history of the Guantánamo military commissions, which Bravin has covered since 2001, isn’t an easy one for a writer to tell or a reader to follow. The record is so cluttered with false starts, unexpected turns, multiple detainees with impossible-to-remember names, and complicated legal twists, it might verge on incoherence in the hands of a less dogged narrator. But Bravin brings cohesion and drama to the story, which is a genuine public service. He does this by focusing on the struggle of a wonderful protagonist, military prosecutor and Marine Corps Lieutenant Colonel Stuart Couch, whose moral clarity and professional ethics are repeatedly assaulted by the unconstitutional process in which he finds himself participating. We see much of the story through Couch’s eyes, and as a result, the drama is personal, even emotional.
Couch, a Republican and a devout Christian, had become a JAG in the Marine Corps in 1996, but left in 1999 for private practice and later a stint as assistant district attorney in Beaufort, North Carolina. In August 2001, he returned to the Marines for a temporary assignment. Then 9/11 happened, during which Couch lost a friend, and he re-enlisted permanently with the hope of bringing the perpetrators to justice.
But the system Couch returned to was vastly different from the one he knew. Bravin explains that the small cadre of Bush Administration officials who designed the legal process for Al Qaeda suspects and other detainees were ideological radicals intent upon proving that, as commander in chief, President Bush had absolute executive authority to disregard international law and other legal norms in accordance with the executive branch’s interpretation of “military necessity.” Under this “new paradigm,” suspects would have virtually no legal rights. Instead, as stated in the draft copy for the new military commission system these officials were designing, it was “not practicable” for military commissions to follow “the principles of law and the rules of evidence” that defined American justice. Instead of customary notions of due process, detainees would have no presumption of innocence, no right to proof beyond reasonable doubt, no right to confront or cross-examine their accusers—whose hearsay testimony could be admitted against them—and no right to remain silent. Their own statements, coerced under torture, could be used against them too. The only standard was that evidence must have some “probative value.” Further, members of the military commission that would decide their fate—men and women who would serve as judge and jury—need not be lawyers. “The Bush Administration envisioned creating for the first time a permanent legal structure under the president’s sole command,” Bravin writes.
In creating this radical legal regime, the Bush lawyers—most notoriously John Yoo and David Addington—had purposefully excluded the top military experts, who, upon seeing the details, were flabbergasted. The rules for the new military commissions ran roughshod over the Uniform Code of Military Justice. “We looked at each other in disbelief,” Bravin quotes Major General Thomas Fiscus, the Judge Advocate for the Air Force. Before long, legal scholars such as Laurence Tribe and Neal Katyal criticized the proposed military commissions too, launching the first round in what would become a protracted battle over the constitutionality of Bush’s extralegal experiment.
John Yoo had once described the naval station in Guantánamo Bay, Cuba as the “legal equivalent of outer space.” Bravin depicts Couch’s arrival in this new cosmos as a rude shock. Couch almost instantly notices prisoners being abused, not randomly, but rather as part of a program that, as he recognizes from his own military resistance training, is modeled on some of the world’s worst and most illegal torture methods. Before long, he begins to piece together the secret program that, as he discovers, will ironically undermine his ability to try and convict all but the most low-level detainees.
Couch wanted to prosecute major terrorists, and aimed at first to go after the detainee he concluded had “the most blood on his hands,” a Mauritanian named Mohamadou Ould Slahi. But under U.S. law, Couch knew, prosecutors are barred from introducing evidence produced in ways that “shock the conscience,” in Felix Frankfurter’s phrase. No one would tell Couch exactly what happened to Slahi, so he and an ally conducted an intelligence operation against their own colleagues in order to piece together what the detainee had been subjected to.
Couch learned that although the FBI had gotten information from Slahi through less coercive, legal interrogation methods, the Defense Department had grown envious of the bureau and impatient for more information of its own, and empowered a former Chicago policeman serving with the Defense Intelligence Agency to use “enhanced interrogation.” Slahi, Couch learned, was horribly mistreated. Effeminate and childless, he was subjected to bizarre sexual gambits involving photos of vaginas and fondling of his genitals. When these methods, death threats, and physical abuse didn’t produce results, the military interrogator told him that his mother would be shipped to Guantánamo and gang raped if he did not talk. He was also subjected to a false kidnapping and threatened with worse torture.
Eventually, Slahi confessed incriminating details to his interrogators, but because of the abusive methods through which they were learned, Couch believed the confession was unreliable and inadmissible. Indeed, he no longer believed he could press charges against Slahi at all. As a Christian and a U.S. military officer, Couch underwent a crisis of conscience. He consulted with his most trusted advisers, read the Convention Against Torture, and then informed his superiors he couldn’t prosecute the case. “What makes you think you’re better than the rest of us around here?” his commander asked him, angrily. “That’s not the issue at all. That’s not the point,” Couch retorted. A week later he sent his boss a memo to be shared with higher-ups, suggesting that the interrogators ought to be prosecuted, and concluding, “I…refuse to participate in this prosecution in any manner.”
After Slahi, Couch was ordered to ask no more questions about detainee treatment. But he persisted, often despite complete obfuscation from both his superiors and other agencies, most particularly the CIA. Despite his superior’s effort to keep the interrogation file from him, Couch discovered that a second important detainee held by the military in Guantánamo, Mohammed al-Qahtani, believed to be the missing twentieth Al Qaeda hijacker, was also so shockingly abused that charges had to be dropped.
Eventually, Susan Crawford, the top military legal authority at Guantánamo, acknowledged publicly that Qahtani had been tortured and therefore couldn’t stand trial. Similarly, a strong case against a Saudi detainee named al-Darbi also was jeopardized by government misconduct. When details of his abuse by U.S. military interrogators in Afghanistan surfaced, authorities decided to prosecute the interrogators instead. Yet another case foundered because it potentially exposed illegal surveillance methods.
Meanwhile, many other cases lacked evidence, or even crimes. In the inverse of ordinary criminal cases, which start with a crime and lead to a suspect, most of the Guantánamo cases started with suspects and required prosecutors like Couch to conjure the criminal charges. One expert acknowledged that of the more than 500 detainees, at most only 6 percent comprised serious criminal cases.
Bravin does a masterful job documenting the flaws in the military commission system and describing the petty bureaucrats who tried to cover them up. He is not soft on the detainees, and in fact reveals a number of new details showing how deeply and dangerously some were involved in Al Qaeda. Salim Hamdan, for instance, whose prosecution was widely ridiculed because of his lowly status as Bin Laden’s driver, was, as Bravin describes it, quite close with Bin Laden personally and was transporting a number of revealing documents as well as a passel of (inoperable) surface-to-air missiles when he was apprehended.
It’s impossible to read this book, though, without coming away dumbfounded anew by the extent to which the Bush Administration contributed to its own legal difficulties by resorting to shortcuts, abuse, and legal overreaching. Woven into Couch’s narrative are the various constitutional challenges to the military commission system, including the major upsets for the Bush Administration rendered by the Supreme Court in the Rasul and Hamdan cases, which restored habeas corpus and other basic legal rights to the detainees. These are not easy stories to tell, but Bravin sketches them ably, bringing to life not just the arguments on both sides, but the personalities and the motivations of the main players from Bush to Obama.
As a first-term senator, and on the campaign trail in 2008, Barack Obama made clear that he completely grasped and opposed the unconstitutional interrogation and detention system devised by the Bush Administration for terror suspects. In his much-praised The Audacity of Hope, Obama criticized Bush for treating fundamental rights as “niceties that only got in the way.” In 2007, Bravin recounts, Obama blew away several of his closest legal advisers—revered figures in the legal academy like Laurence Tribe, Martha Minow, Geoffrey Stone, and Cass Sunstein—by, seemingly off the top of his head, ticking off great historical lapses in America’s fidelity to its legal principles and outlining his thoughts for a proposed speech on constitutional matters, including the treatment of terror suspects.
Tellingly perhaps, Obama dropped his plan to give the speech. When Obama touched on the subject more offhandedly during the campaign, he continued to criticize his predecessor and promised to restore the rule of law, saying for instance in 2007 that “the days of compromising our values are over.” Upon taking office, he also famously vowed to close the prison in Guantánamo Bay within his first year, and to “reject the Military Commissions Act.” But as Bravin details, Obama’s promise to close Guantánamo was stymied by his inability or unwillingness to spend the necessary political capital to defeat Republicans in Congress who successfully—and ludicrously—framed Gitmo’s closure as an existential threat to American security.
As for Obama’s vow on the military commissions, Bravin notes that his language was trickier than casual observers might have grasped. Yes, Obama said he would reject the Military Commissions Act—but that did not mean he would reject military commissions per se. In fact, he soon deferred to Robert Gates, the holdover secretary of defense from the Bush years, who was unwilling to concede the Pentagon’s turf in this area. In an attempt to placate the Pentagon and his political advisers, who saw the whole subject as a loser, while still acting on his understanding that the Constitution had been defiled, Obama chose a muddled path forward. He would demand no accountability for past abuses. When “feasible” he would support criminal trials for terror suspects, and when not he would, once again, despite all the years of turmoil and illegitimacy, continue to support military commissions.
Although the Obama Administration reformed the military commission process considerably, adding such procedural protections as the right of appeal, Obama’s continuation of this seemingly permanent alternative legal universe is one of the great disappointments of his presidency. Bravin points out that despite the various reforms, the commissions remain a system apart, in which only non-U.S. citizens can be tried. This, he argues, is a fundamental break with past practice, under which the eligibility for military justice was established on the basis of the allegation, rather than by birthplace or identity of the defendant. The Geneva Conventions require that enemy prisoners be tried under the same standards as defendants belonging to the capturing nation. The continuation of a separate legal universe threatens to create a dubious system of “victor’s justice,” and to undermine the most fundamental promise of America’s legal system, as chiseled into the Supreme Court’s front pediment, of equal justice under the law.
Bravin’s criticism of this seemingly permanent, second-class legal system for “others” is hard to quibble with. His reporting and storytelling expose the shadowy history of this shameful legal experiment to much-needed, harsh light. But The Terror Courts would be an even better book if the author had stepped back and analyzed further why this illegitimate legal regime has proven so difficult to abolish. It may be that as a newspaper reporter, trained to eschew opinion in favor of fact, Bravin is uncomfortable drawing political conclusions. As a result, readers must turn elsewhere, such as to Georgetown Law Professor David D. Cole’s brilliant article, “Military Commissions and the Paradigm of Prevention” in Guantánamo and Beyond, a collection of essays forthcoming from Cambridge University Press, to really make sense out of the whole sorry tale. What Cole explains is that the military commissions continue to exist in large part because they serve a key political purpose: They were designed to allow the government to cover up its own misconduct. By altering the rules of evidence to allow coerced testimony, and by invoking the shield of national security to hide criminal conduct from public view, the military commissions continue to spare U.S. officials from being held accountable for torture and other detainee abuse. Or, as Cole puts it:
In the end, the impetus behind military commissions is the hope—in my view unsupported—that the commissions may permit easier convictions of individuals, and may allow prosecutors to avoid confronting the consequences of the United States’ systemic reliance on torture and cruel, inhuman, and degrading tactics in its interrogations of detainees. In this respect, the commissions are best understood not as a legitimate forum for trying war crimes, but as an avenue for short-circuiting legal processes that might hold us accountable for our wrongs.
As Bravin recounts, the irony is that despite the enormous effort made to construct an alternative legal system in which the abuse of prisoners would not prevent their prosecution, the objections of a few conscientious individuals like Couch have tied the system up in knots anyway.
Until Obama, and the public, demand some sort of full airing of the torture program, its victims will continue to be stuck in perpetual legal limbo. The military commissions can’t be shut down unless the detainees are given conventionally legitimate legal trials—either in civilian courts governed by Article III of the Constitution, or courts martial under the Uniform Code of Military Justice. But for this to happen, the detainees’ past treatment would have to be accounted for in the full light of day.
This reality was showcased in the only instance so far of a detainee taken from Guantánamo to face trial in a federal district court—the case of Ahmed Khalfan Ghailani, a Tanzanian indicted in connection with the 1998 Al Qaeda bombing of the American embassy in Dar es Salaam. In 2010, Ghailani was tried and acquitted of all but one of the 285 counts of murder and other charges he faced in a federal court in New York. In that case, the government stipulated that no statement Ghailani had given the CIA, which held and interrogated him in a secret prison for several years, could be used against him, because it was presumed to have been extracted through illegal means. As the result of his conviction on a single conspiracy charge, Ghailani was sentenced to life in prison, a serious sentence that arguably proved that the federal courts are capable of meting out tough justice to terrorists. But instead of drawing this conclusion, conservatives were incensed that Ghailani was acquitted on the other 284 counts—and that the CIA’s dark secrets came so close to surfacing. Rather than risking a fair trial again, Republicans demanded that future trials of 9/11 co-conspirators take place only in Guantánamo, before the designated military commissions. As the Ghailani case showed, America’s refusal to face its own past illegal conduct is the main reason that the “terror courts” exist at present, and will continue to persist into the foreseeable future.
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