Thursday, November 26, 2009

Former Attorney General in Paris for Speech on the Subject of “Balancing Democracy, Justice, and Security”

In a public speech at The American University of Paris on November 21, former Attorney General Michael B. Mukasey spoke out on the issues of “Balancing Democracy, Justice, and Security”.

General Mukasey’s thoughts were particularly relevant and timely given the recent shootings at Fort Hood, Texas [see my post on the left's (demented) double standards and Ann Coulter's post], and the decision by current Attorney General, Eric Holder, to try Khalid Sheikh Mohammed and several co-conspirators in a New York civilian court (sorry for the lower case problems throughout the text of the speech).

My remarks here initially were advertised as involving balancing democracy, justice, and security, and a couple of months ago that presentation would have been rather optimistic and bordered on the bland. My view at that time was that by and large there was not a whole lot of balancing necessary in the sense that our security could be maintained without giving up much if anything in the way of democracy and justice.

I still believe that. But one of the unyielding facts that go with democracy is that elections have consequences, and in the past several weeks the consequences of our elections in 2008 appear to have been dramatic.

When the administration in which I served left office, there was in place after some delay a set of regulations for trying detainees captured on foreign soil and charged with war crimes before military tribunals. A substantial part of the delay had been caused by litigation initially over the president’s authority to establish such tribunals in the first place, and then over their lawfulness at all, in cases that before, say, 2002, would not have been litigated in federal cours at all. But the cases were litigated, and the Supreme Court held that even the authorization for the use of force after September 11, 2001 and the detainee treatment act in which Congress at least implicitly recognized authority to try war crimes before military commissions were not specific enough, and so Congress obliged with the military commissions act of 2006 which, as the title would suggest, explicitly authorized such commissions.

As I said, the procedures were in place and all was in readiness when we were told a week ago Friday – somehow in Washington lots of things that don’t go down easily tend to get announced on a Friday – that the Attorney General had decided on his own authority to bring Khalid Sheikh Mohammed, the self-proclaimed mastermind of the September 11, 2001 atrocity and the man who, again by his own boast and videotape evidence, was the person who beheaded Wall Street Journal reporter Daniel Pearl – we are to bring him, and Ramzi Bin Al Shibh, the operations director of 9/11, and others involved in planning and carrying out the attack, to the United States for trial in a civilian court.

As I mentioned, we were about to try these men for war crimes in a military tribunal, where they would have had counsel cleared to see and handle classified and otherwise confidential information, where a courtroom had been constructed unlike any in the United States with technology specifically directed at handling classified documents and other information transferred from anywhere on the globe in secure fashion.

The detention facility at Guantanamo, which i have visited, compares favorably with medium security prisons in the United States, which i have also visited, principally because it is remote and inherently secure, and thus there is no need for the kinds of restrictive conditions imposed on the kinds of dangerous prisoners we have in this case in maximum security facilities in the United States. In fact, during my visit to Guantanamo I was able to see the high value detainees, who are under 24-hour video surveillance, but was not able to see Khalid Sheikh Mohammed himself because he was out visiting with a delegation from the International Red Cross. I did manage to see his cell, however, and am happy to report to you that at least until he is actually sent to this country he has for his private use an elliptical machine that is the same make and model as the one I used to have to wait my turn for in the gym of the building i lived in as Attorney General. I doubt he will have it that good once he gets here, but then of course the lawsuits over his prison conditions that are certain to be filed once he arrives might even achieve that.

Some of you may recall that Khalid Sheikh Mohammed said on more than one occasion when he appeared before the military commission that was to try him that he wanted to plead guilty, and some have suggested that if he does that in a civilian court the trial might not take all that long. Two responses to that: first, his initial response to being captured was that he would see his captors with his lawyer in New York, so this is someone who intends to and will use the system in any way he can to create as large a spectacle as he can, whatever system he is in. The military commissions regimen did not allow for the kind of theatrics that are available in a civilian proceeding, so he offered to plead guilty and use the process of capital sentence as his stage.

Now he has a far different and a far bigger stage, and there is no reason to believe he will refrain from using it, particularly when one benefit might well be access to classified information that must be disclosed in discovery that takes place in civilian trials or that comes out in open court, whether as part of the government’s direct proof or as part of a defendant’s examination of witnesses in order either to discover such evidence or make it appear to a jury that the government is trying to hide something.

The argument has been made that the Classified Information Procedures Act – or CIPA — that applies in civilian courts would allow the government to protect classified information by providing summaries and the like, along with the claim that no ground is lost here because the procedures in military tribunals are “based on” CIPA. Several problems with those arguments:

First, CIPA was written for very different circumstances from the ones that face us now. It was enacted in 1980 to combat the threat of what is called graymail in espionage prosecutions, where defendants essentially threaten to disclose classified information in open court. It does not provide special protection for intelligence sources and methods, and even if an attempt were made to use it to that end, it would fall short because in any event a defendant is entitled under the rules in criminal cases to what is relevant and can help in his defense, and if a defendant chooses to represent himself, that is a constitutional right that cannot be interfered with without risk of reversal.

Also, CIPA provides no mechanism for a judge to make an independent ex parte assessment of the reliability of intelligence sources and methods that underlie otherwise admissible evidence. Presumption even as to classified information under CIPA is that it be disclosed if discoverable or relevant, with the determination made by a civilian judge; the presumption in military tribunals is precisely the opposite. [Part Two] In any event, not all sensitive information is classified. Lists of co-conspirators, for example, which tell our adversaries who we know about and who we don’t – can be quite useful to them, as such a list was to Osama Bin Laden in 1995 when his name appeared on one and he left the Sudan, and if we try to classify broadly, the criticism will be raised, as it is frequently, that the government over-classifies information.

Wholly apart from that, the requirement under CIPA is that all issues of classified information be resolved before the trial, including appeals if necessary. So the government basically would have to disclose before trial what classified information it intends to introduce, whether by summary or otherwise, and then litigate the propriety of the classification and the adequacy of any summary.

How long will such a trial take over all? The indictment containing the charge has not yet been filed in district court. After it is, there will be pretrial motions to suppress evidence based on failure to comply with rules that apply in a civilian court – Miranda, technical Fourth Amendment requirements pertaining to searches and seizures, and the like – delay in the bringing and trial of charges, perhaps a motion for change of venue on the ground that a fair jury cannot be empaneled in New York, and the like.

Those pretrial proceedings, including the CIPA proceedings I mentioned earlier — are likely to consume years. How do we know? Consider a simple case like the one against the lawyer who represented the so-called blind sheikh, Omar Abdel Rahman, who was the spiritual guide in the first World Trade Center bombing and tried to inspire other such events. That lawyer, Lynne Stewart, was charged with violating prison rules by carrying messages to and from the sheikh when he was in jail, including messages dealing with the waging of holy war by his followers. The offense started in 1999; the charges were filed in 2002; the trial started in mid-2004 and took eight months; the sentencing did not take place until 2006, and the appeal was decided last week, with the conviction affirmed but with the case remanded to the district court for resentencing because the sentence was too lenient. Another appeal is sure to follow, with eventual application for review to the Supreme Court. Even if that is denied, that denial would only begin the process of petitioning for habeas corpus relief if there is a claimed denial of constitutional rights.

And what does that mean for Khalid Sheikh Mohammed? His trial would be infinitely more complicated. Unlike the Stewart case, or even past terrorism cases tried in civilian courts, the case against him and his co-defendants was not investigated in the same way that conventional cases, even conventional terrorism cases, if one can imagine such a concept, are investigated. He and his cohorts were captured abroad by military personnel who did not administer Miranda warnings and who had no reason to believe that whatever information and evidence they gathered would have to be processed the way evidence is processed for presentation in court. This was not CSI: Kandahar, or Pakistan.

We have to remember also that included within the Sixth Amendment right to a lawyer, under applicable Supreme Court jurisprudence, is the right to self-representation. So a defendant like KSM could choose to represent himself and turn the proceedings into a forum for presenting his views and grievances. How do we know that might happen? Look at the sentencing of Zacarias Moussaoui. The trial proceeding itself took about a year, with Moussaoui at times exercising his right to self-representation and delivering tirades in court; the entire case took about four years from start to finish, and that was in a case where the defendant pleaded guilty.

I haven’t gone into issues of physical security for the participants in such a trial, from the judge to the jurors to the physical facilities that house the defendants and serve as the venue for the trial. You can well imagine those; we have seen those before; I have seen those before.

And it is more than simply the physical security of those people and places immediately involved in the proceedings themselves. I said a while ago that Khalid Sheikh Mohammed would use the proceedings as a stage, as the occasion for a spectacle to serve the purpose of the ideology he stands for. That tendency obviously isn’t unique to him, or to Zacarias Moussaoui, and it needn’t be confined to a courtroom. The terrorists who shot and killed and burned in Mumbai were interested in holding the stage and the world’s attention. That was proved beyond any conceivable doubt in the recent disclosure of cell phone conversations that took place between those carrying out the destruction and those supervising them, where one is told “you have the most important target; the media are showing pictures of the Taj.” that is a reference, if you recall, to the Taj Mahal hotel in Mumbai where much of the destruction was carried out.

An attack like that, or an attack on subways or malls, whether in New York or anywhere else in the United States, becomes that much more inviting an event if the trial itself is brought within easy reach of the media.

And where are these people to be confined, assuming some penalty other than death is meted out to any of them? We are assured by the Attorney General that Special Administrative Measures – so-called SAMs — will apply to them so that they will be kept in solitary confinement. What we are not told is that these Special Administrative Measures were supposed to apply to Richard Reid – you recall him, the fellow who tried while he was a passenger on an airplane to set fire to explosives in his shoe, the so-called shoe bomber, who probably would have succeeded had he not spent too much time walking around the wet streets of London on a rainy day – those measures were supposed to apply to him, but he brought a proceeding at the maximum security facility where he is confined, claiming that these measures interfered with his right to pray with others, and the Justice Department, under the current administration, did not contest the issue and simply agreed to lift them.

And all of this – the burden, the risk, the delay – are supposedly being undertaken to serve the rule of law and to show that we are not afraid, as the Attorney General has said, and because civilian targets were his and civilians killed, as he testified this week, and [Part Three] to prove, as the chairman of the Judiciary Committee has said, that we are a law abiding people.

Let’s take a clue from Orwell again and look at that use of language.

Serve the rule of law? What about the military commissions act? It certainly doesn’t serve the rule of that law which Congress put in place precisely to deal with cases like this.

Show that we are not afraid? A military commission is not an exercise in fear, and a civilian trial is not a display of bravado. Both are legal proceedings – the one suited to war crimes like the ones at issue here and the other suited to conventional prosecutions.

And then we come to the showing-we-are-a-law-abiding-people part. Of course, when there was no other forum we have tried terrorists in civilian courts before, including Omar Abdel Rahman, the blind sheikh; Ramzi Youssef, the mastermind of the first World Trade Center bombing and planner of a series of airliner bombings that would have happened if he had not been caught when some of the explosives detonated by accident in his apartment in Manila; and the perpetrators of the embassy bombings. So if the world was not impressed with that then one wonders whether one more trial is needed to make the point. Of course, we know the terrorists were not impressed, or whether they were impressed or not they certainly were not deterred – their response was September 11, 2001.

As difficult and problematic as that situation is, we have had yet another incident that regrettably was driven off the front pages by the Attorney General’s announcement, and that was the massacre at Fort Hood apparently perpetrated by an army major, a psychiatrist who had ministered to soldiers at Walter Reed before being sent to Fort Hood, who subscribed to a militant Islamist faith that led him to use what were supposed to be professional lectures to advocate attacks on United States troops, to cast accusations against them and their mission, who communicated by e-mail with an known Al Qaeda recruiter, a cleric who praised suicide bombing and fanatical opposition to this country and all it stands for, and who just before he began his deadly assault shouted Allahu Akhbar – Allah is great – a phrase with which we became depressingly familiar on September 11, 2001 and afterward.

How did we get here?

In 1946 George Orwell wrote a remarkable essay called Politics and the English Language, which I used to require each of my law clerks to read before they took up their duties. He wrote that essay just after World War II when the nature of Soviet communism was becoming clear to anyone who had the will to see and hear, and his thesis was simply that language influences our thoughts and our politics, and vice-versa, and that when we permit sloppiness and benign abstractions to infiltrate our language, sooner or later they will infiltrate our politics as well, and that when we try to justify things that cannot be justified, or to refuse to face things that must be faced, we will resort to language meant to conceal what we are saying from others but that winds up concealing it from ourselves.

And so we have in place an administration that absorbs the following facts: the first World Trade Center bombing in 1993, the attacks on our military facilities at Khobar Towers in Saudi Arabia that killed 19 U.S. servicemen, the attack on the USS Cole that killed 17 more, the nearly simultaneous bombing of our embassies in Kenya and Tanzania that killed hundreds, and of course the atrocious attack on September 11, 2001, that killed nearly three thousand people in our own country – it absorbs those facts, as well as the formal declaration by Osama Bin Laden and others who share his beliefs that they are at war with the United States, and refuses to use the term war to describe the struggle we are in, and refuses to use the word terrorism to describe what it is we are up against.

And so, we have phrases that are substituted for stark reality and appear to be meant to conceal it. Instead of a war, we are told about “foreign contingency operations,” and instead of terrorism, the person in charge of Homeland Security refers to “man-caused disasters.”

And that kind of linguistic anesthesia makes it a lot easier for the Attorney General to make the announcement he did.

And the response of the administration to the shooting at Fort Hood was that we must not jump to conclusions.

Just as we had in place protocols for trying defendants before military commissions, so too we have in place protocols that permit the FBI to gather intelligence and to open investigations. However, those protocols do not permit the opening of investigations based on First Amendment activity alone, and a great deal of what Major Hasan did before the Fort Hood shootings was First Amendment protected activity.

That may well be something we have to rethink, whether there is a difference between an investigation undertaken for the purpose of gathering intelligence and an investigation undertaken for criminal purposes may provide a basis for distinction.

But before we do any of that, we are going to have to take the advice of, as coincidence would have it, given our venue, a French philosopher – Blaise Pascal – who taught that the first rule of morality is to think clearly. We are going to have to face the fact that what we are engaged in is a war with an ideology and people who follow it in the name of religion. That is what we are going to have to oppose, and without apology, and without believing that we have something to prove to the world that makes it necessary to abase ourselves or make ourselves less safe.

We are in a city where the United States actually was born – because it was the Treaty of Paris that finally ended hostilities between us and Great Britain. This is a highly appropriate place for us to think about what the United States must do to make sure that it continues to survive.

Thank you.