There are many arguments floating around, including the one I touched on earlier this week, against trying 9/11 suspects in New York.  Let’s examine them.

1) It signals the end of the War on Terror.

As John Yoo writes in the Wall Street Journal, the decision “is in effect a declaration that this nation is no longer at war.”  As Steven Simon writes in the New York Times, though, this is a straw man argument.  Simon notes:

In truth, the White House’s counterterrorism team is composed largely of the same professionals who battled terrorists under President George W. Bush. They are generally in sync with the White House’s insistence on a strategy that uses law enforcement where appropriate and military force in places, like Afghanistan, where conspirators can’t be arrested by federal agents driving Fords.

Contrary to Yoo’s assertion, the Obama Administration’s approach is a “law enforcement/military force” hybrid.  Yoo, after asserting that this track indicates that the U.S. is no longer at war, actually admits that the approach is a hybrid, and then criticizes it for being so, bringing us to the next, more legitimate criticism…

2) The hybrid approach makes no sense.

The Department of Justice has crafted a protocol outlining how legal venues for particular cases will be determined.  Some will be tried by civilian courts, some by military commissions.  As Yoo writes of the this hybrid approach:

Stranger yet, the Obama administration declared last week that it would use these military commissions to try five other al Qaeda operatives held at Guantanamo Bay, including Abu Rahim al-Nashiri, the alleged planner of the 2000 bombing of the USS Cole in Yemen. It should make no difference that this second group attacked a military target overseas. If anything, the deliberate attack on purely civilian targets in New York City represents the greater war crime.

However, from a strategic standpoint, this second criticism is only relevant if a third criticism holds water…

3) Maybe terrorists will be set free.

If criminal prosecutions allow terrorists to more easily avoid prosecution, then Yoo’s above criticism is valid.  The system would actually encourage terrorists to plan and execute attacks on U.S. civilians on U.S. soil rather than on military targets overseas, for they could more easily avoid prosecution for attacks on civilians.  But is this true?  Yoo claims yes, asserting:

For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots.

Actually, the Moussaoui trial disproves Yoo’s case.  Also, as Steven Simon writes, there is “a zero acquittal rate for trying terrorists in New York” so far, and as for Khalid Sheikh Mohamed specifically, KSM has already confessed to his crime.  James J. Benjamin Jr. adds on the New York Times‘ Room for Debate blog:

I recently co-authored a study of the experience of federal courts in adjudicating terrorism cases. The data we collected shows that federal-court terrorism prosecutions have generally yielded just, reliable outcomes that have not undermined our national security.

The list of convictions includes not only the trial of Omar Abdel Rahman in 1995, but also of Ramzi Yousef, Zacarias Moussaoui, Jose Padilla, John Walker Lindh and Richard Reid, to name just a few. Not all cases have been perfect, but the outcomes, by and large, have been accepted around the world and have consigned the convicted terrorists to spend many decades or the rest of their lives in the obscurity of federal prison.

In the years since 9/11 the Justice Department has brought 119 federal court terrorism cases against 289 defendants, with a conviction rate of 91.1 percent. Although it would be naive to suggest that the 9/11 prosecutions will be simple or straightforward, there is good reason to believe that dedicated federal judges, working with prosecutors and defense counsels, can address and overcome the challenges that these prosecutions are certain to present.

The editors of the National Review counter this assertion by noting the “paltry number of cases (less than three dozen, mostly against low-level terrorists, over an eight-year period, despite numerous attacks)” in the 1990’s.  The National Review argument implies that legal obstacles shielded suspects from a wider scope of prosecutions but offers no evidentiary support.

4) Terrorists don’t deserve rights.

For some this is a purely moral stance.  The crimes that terrorists commit are so heinous that the perpetrators forfeit their rights.  As Tommy Crocker of Opinio Juris writes:

This thought appears in a statement attributed to Sen Lindsey Graham, who sought (and failed) to have Congress forbid federal court trials of 9/11 suspects. He claimed that “terrorists don’t deserve the same constitutional rights as U.S. citizens.” Why not? Any person we seek to punish criminally for heinous acts against U.S. persons, places, or interests “deserves” the protections afforded by a society dedicated to the rule of law. Since Sen. Graham advocates the use of Military Commissions, he is not claiming that terrorists don’t deserve any legal protections—just not robust constitutional ones. If this is correct, then for me it is an entirely new claim that does not depend on issues of military necessity, territoriality, trial pragmatics, or national security. It depends on a judgment that persons accused of terrorism deserve something less than robust criminal procedure protections.

However, as John Dehn of Opinio Juris writes, this might be irrelevant:

Public enemies of the United States have never been afforded the protections of the Bill of Rights. This is not based on their nationality or territorial location. A close reading of Supreme Court precedent clarifies that the political branches exercise war powers in a manner exclusive from the Bill of Rights (except with regard to U.S. domestic populations – where the relationship is less clear). Properly read and placed in context, neither Boumediene nor Milligan conflict with this. Quirin and Yamashita (and many, many other cases) support it. All are completely reconcilable under a proper analysis of relevant precedent, in my humble opinion.

As Andy McCarthy of the National Review notes, the Department of Justice protocol for venue selection suggests that in fact there would be significant differences between the two trial types, one difference being evidentiary standards.  Still, from a national security standpoint, these arguments only matter if by going the civilian court route, we risk setting terrorists free.  Thus, as the past conviction rate for terrorist cases indicates, this argument might also be irrelevant.  The Department of Justice protocol also indicates that the government will not pursue civilian trials unless it is convinced that the trials will result in convictions.

5) Valuable intelligence will become public.

This is the crux of Yoo’s argument.  Civilian trials will be “an intelligence bonanza for Al Qaeda,” he writes, for  defendants will be granted the right to demand all information being used against them.  Yoo writes:

This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the “blind Sheikh”), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.

In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.

Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.

Steven Simon counters:

Our prosecutors are certain that there is enough unclassified evidence to make their case. Moreover, the most prized intelligence is recent, specific and actionable. Al Qaeda today is most concerned with discovering when and where the next drone missile attack will take place in Pakistan, information not likely to be disclosed during a trial about a conspiracy hatched more than a decade ago.

And James J. Benjamin Jr. adds:

The record of the Rahman case indicates that the government did not seek to protect the co-conspirator list through a protective order or through the Classified Information Procedures Act. In fact, in our study, we found no examples of serious security breaches in cases where the act was invoked.

If there were an intractable problem with classified information in terrorism cases, one would expect to have stronger examples than one from almost 15 years ago where, based on the public record, the government did not seek a court order restricting the information.

Still, Andy McCarthy worries about the Classified Information Procedures Act (CIPA):

CIPA does not shield all classified information from the terrorists — just the classified information the judge decides is neither discoverable under the rules nor relevant to the trial. If it is discoverable and/or relevant, the defense gets it.

Nevertheless, the points made by Simon and Benjamin indicate that the reality will be  far from the “intelligence bonanza” of which Yoo warns.

6) Terrorists will use their civilian trials as soap boxes.

This argument is getting a lot of play but is also probably the argument that is most overstated.  Steven Simon notes that there will be no television cameras allowed at these trials.  Also, in addition to allowing defendants to espouse radical Islamist ideology, the trials will “remind us both of the narrow viciousness of the terrorists’ cause and of the enduring strength of our own values.”  Senator Feingold argues that the trials will show “the world that this country stands firmly behind its legal system and the Constitution.”  In contrast, Morris Davis writes in the Wall Street Journal that the Obama administration’s hybrid solution will be perceived as a “double standard” that won’t “play well in Peoria” and “won’t play well in Peshawar or Palembang either.”  He argues, “We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them.”

Overall, the arguments against civilian trials are relatively weak.  Morris Davis’ claims will most likely be proven incorrect.  The hybrid system will have a positive propaganda effect.  The Obama administration will shield classified and/or sensitive information from public exposure.  The Department of Justice protocol will prevent risky cases from making it to civilian courts.  And in fact, this last point reveals the propagandistic nature of this decision.  The hybrid approach will allow the U.S. to proclaim its adherence to the rule of law while actually only allowing selected cases into the sphere of criminal prosecution.

David Brooks on the NewsHour this past Friday proffered an all too familiar argument.  Speaking about the decision to try 9/11 suspects in civilian courts in New York, Brooks said:

This trial will become another act of propaganda. The future trials will become other acts of propaganda. And I think we have to understand that terrorism works through propaganda, not through simply killing. And, therefore, controlling the propaganda effects of an act of terrorism seems to me part of the process we should adapt.

Or as the editors of National Review Online wrote:

It is difficult to quantify how dangerously foolish this course is. As they demonstrated in offering to plead guilty while bragging about their atrocities, KSM and his cohorts don’t want a trial so much as they want a soapbox to press their grievances against the United States and the West. With no real defense to the charges, they will endeavor to put America on trial…

Though perhaps the trials will present a strategic opportunity for this very reason.  As a recent paper in the Middle East Policy Council Journal stated:

To date, the U.S. government has largely sidestepped direct debate about the validity of the al-Qaeda narrative. Instead, the United States should move to challenge and destroy it. This narrative is highly compelling and widely believed in large parts of the Muslim world. It motivates many to join or support the movement. As long as it has traction in Muslim societies, al-Qaeda will have fertile ground to find recruits, money and haven.

The United States should contest this narrative because it is both dangerous and flimsy, resting on claims that are usually debatable and often patently false. As such, it is highly vulnerable to attack. Moreover, al-Qaeda will endure as long as its narrative remains intact. And its narrative will remain as long as it goes uncriticized.

Some argue that a debate over al-Qaeda’s narrative would happen on al-Qaeda’s terms and could never be won. But the greater danger lies in ducking the debate. Even implausible arguments are believed if they are not answered. Accordingly, al-Qaeda’s arguments will be accepted by many if they are not refuted.

A conversation in the comments section of one of last week’s posts deserves its own post.  The conversation was geared toward answering this question:  If the International Court of Justice (ICJ) rules some act illegal, is the act definitively illegal?  Commenter Dan and I took opposing sides, him answering no, me answering yes.

My position was that UN Charter signatories are bound by UN Charter Art. 93 to be an “ipso facto part[y] to the Statute of the International Court of Justice” and by Art. 94 “to comply with the decision of the International Court of Justice in any case to which it is a party.”  I noted that per the ICJ Statute Art. 36, the ICJ can rule only on matters regarding international agreements.  Also, per ICJ Statute Art. 36(6), if there is a disagreement about whether the ICJ has jurisdiction over a certain case, the ICJ makes the final determination.

Dan introduced several arguments centered around this question: What is the relationship between international law and municipal law?  He argued that there were controversies over competing jurisdictions and that my argument glossed over these complexities.  He offered as evidence three U.S. Supreme Court cases: Sanchez-Llamas v. Oregon, Medellin v. Texas, and Breard v. Greene.  In each of these cases, the Supreme Court’s decision conflicted with the ICJ’s decision.

I think the mistake both of us made is this: the original question about the definitiveness of ICJ rulings was about the ICJ’s advisory opinion about Israel’s West Bank barrier.  However, neither of us looked at the specific relationship between Israeli law and international law.  And as John O’Brien wrote in International Law, “The manner in which international law is regarded will depend on the constitution of the particular country.”

Israel has no written constitution, but I believe an examination of Israeli court cases actually demonstrates the validity of Dan’s overall point.  In a 1956 Israeli Supreme Court ruling about a case involving the General Armistice Agreement signed by Israel and Jordan on the island of Rhodes, the court decided:

The Rhodes agreement is a Treaty between Israel and another State.  Whatever its force and validity according to international law, it is not law which the Israel courts will or can enforce.  The rights which it grants and the duties which it imposes are the rights and duties of the States which concluded the Treaty and its implementation is a matter for them alone to secure by those special means which are usual to ensure the implementation of international treaties.  Such a Treaty is not given to the jurisdiction of the courts of this country except and to the extent that it, or the rights and duties which flow from it, have been embodied in the law of the land and have acquired the force of binding law.  In such circumstances, it must be pointed out, the Court would then have reference not to the Treaty as such but to the law which alone gives it validity for domestic purposes.

Thus, in the Israeli Supreme Court cases involving the separation barrier, the court based its ruling on only Israeli, and not international, law.

This international-municipal law relationship is similar, though not identical to that in the U.S.  In the 1888 Whitney v. Robertson ruling, the U.S. Supreme Court determined:

By the Constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. . . . [I]f the two are inconsistent, the one last in date will control the other. . . .

Perhaps this brings us to another question.  As John O’Brien also wrote:

One noticeable feature sine 1945 has been that, in those situations where there has been the collapse of an entire political system, those drawing up the new constitution have often made express reference to international law in the hope of confining any future government to internationally agreed norms.

Has this been successful?  Are there implications for the billiard ball model?

The NewsHour with Jim Lehrer reported last night about the 10th anniversary of East Timor’s independence.  Following Portuguese decolonization of Portuguese Timor in 1974, East Timor declared independence, and was subsequently invaded by Indonesia.  East Timor battled Indonesia for independence for the next two decades, eventually winning in the late 1990’s.  One particular line of the NewsHour report illustrates perfectly the link between law and security strategy:

East Timor has not pursued war crimes tribunals against Indonesia, calculating that it needs to keep the peace with its much larger neighbor… But local activists warn that having no international judicial process keeps East Timor vulnerable to renewed violence, the process of healing from the trauma of occupation incomplete.

For East Timor, a war crimes tribunal would be a weapon of both domestic stabilization and international provocation.  However, East Timor cannot have one without the other.  Many Timorese view foregoing war crimes tribunals as foregoing justice.  Timorese leaders fear the Indonesian government would take the opposite stance.  Thus, foregoing war crimes tribunals, though it risks domestic instability, is a strategic decision geared toward mitigating international tension.

How the Fort Hood crime is prosecuted depends on how the word ‘terrorism’ is defined.  However, as Slate notes:

There’s no precise, internationally accepted definition of terrorism or who qualifies as a terrorist. One 1988 study identified 109 definitions for terrorism, and it’s a safe bet there are now many more. The U.S. Code contains several classifications of varying scope. Perhaps the most wide-ranging is the one the government uses to exclude possible immigrants, wherein a terrorist is anyone who uses an “explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger … the safety or one or more individuals or to cause substantial damage to property.” That is, anyone who’s committed an armed crime for a reason other than money. In a criminal context, the definitions are narrower. To garner a domestic-terrorism charge, the assailant must intend “to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping.” As for international terrorism, the actions must furthermore either occur outside the United States or “transcend national boundaries in terms of the means by which they are accomplished.”

…The “coercion” standard as set forth in the U.S. Code and suggested by the United Nations don’t make it clear whether the shooting spree qualifies as terrorism. Alleged gunman Maj. Nidal Malik Hasan was reportedly opposed to the wars in Iraq and Afghanistan and called the war on terror a “war on Islam.” Of course, these details don’t necessarily indicate that Hasan intended to influence government policy. The U.S. Code provision against the “intimidation” of a civilian population might cover the shooting spree since there were civilians at Fort Hood. But it’s possible he just snapped, in which case it would be difficult to demonstrate that he “intended” anything at all. As for charging Hasan with international terrorism, many news sources have reported that Hasan was in contact with Anwar al-Awlaki, an American-born Muslim cleric now living in Yemen who is said to support al-Qaida. If al-Awlaki somehow encouraged Hasan, or helped him plan the shooting, prosecutors could argue that the incident “transcends national boundaries.”

Read the whole thing here.

The New York Times earlier this week on Major Nidal Malik Hasan:

In recent years, he had grown more and more vocal about his opposition to the wars in Iraq and Afghanistan and tortured over reconciling his military duties with his religion. He tried to get out of the Army, relatives said, and apparently believed it to be impossible, though experts say he was probably given inadequate advice…

But because the Army had paid for his education, and probably because the Army was in great need of mental health professionals and was trying to recruit Arab-Americans, he was advised that his chances of getting out were miniscule, relatives said.

“They told him that he would be allowed out only if Rumsfeld himself O.K.’d it,” said a cousin, Nader Hasan, referring to Donald H. Rumsfeld, then the secretary of defense. Relatives said they were unclear whether Major Hasan sought assistance from a private lawyer; then, about two years ago, his cousin Nader Hasan said, he resigned himself to staying in the Army through the end of his commitment.

An Army spokesman said on Sunday that he did not know the length of Major Hasan’s commitment. But for medical officers, it is typically seven years after graduation from military medical school, which would have meant at least into 2010 for Major Hasan.

Private lawyers who represent soldiers said it was difficult but not impossible to obtain an early discharge from the Army.

According to U.S. law, Hasan would be ineligible for conscientious objector status.  Per  the 1971 U.S. Supreme Court case, Gillette v. U.S., conscientious objectors must object to all wars, not just certain wars, even if those objections are religious in nature.  The Gillette ruling affirmed the constitutionality of the 1967 Military Service Act, which states that no person shall be forced into “service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.”

Hasan urged reform.  The Washington Post reported yesterday that he once gave a PowerPoint presentation entitled “The Koranic World View As It Relates to Muslims in the U.S. Military,” the last slide of which concluded, “Department of Defense should allow Muslims [sic] Soldiers the option of being released as ‘Conscientious objectors’ to increase troop morale and decrease adverse events.”

Is there a point there?  Should the Military Service Act be brought into our conversation about this issue?  Is there a better way to establish the contours of conscientious objector status that might make strategic sense?

Since the Israeli West Bank barrier went up in 2002, comparisons to the Berlin Wall have not been hard to find.  Yesterday’s historic anniversary naturally invites a revisitation to the analogy.

Legality is actually one of the most potent differences between the two cases.  The Berlin Wall didn’t violate international law.  In fact, the East Germans built it a bit removed from the border to ensure it didn’t encroach on West German territory.  Contrastingly, the Israeli barrier is illegal.  The International Court of Justice (ICJ) ruled so in 2004.  The UN General Assembly voted 150 to 6 in favor of the ruling.  As the ICJ advisory opinion states:

The Court notes that the route of the wall as fixed by the Israeli Government includes within the “Closed Area” (i.e. the part of the West Bank lying between the Green Line and the wall) some 80 per cent of the settlers living in the Occupied Palestinian Territory, and has been traced in such a way as to include within that area the great majority of the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem).  The information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, of the Fourth Geneva Convention which provides:  “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”  The Security Council has taken the view that such policy and practices “have no legal validity” and constitute a “flagrant violation” of the Convention.  The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.

In other words, the Israelis were not as cautious about respecting their international legal obligations as the East Germans.  In the Berlin Wall case, adherence to international law was deemed a strategic necessity.  In the West Bank barrier case, ignoring law is deemed a strategic necessity.  As Jonah Goldberg wrote in 2004:

…tailoring [Israel's] foreign policy to look good to the UN is a truly pointless endeavor. After all, it followed the UN’s advice in its withdrawal from Lebanon and look at the trouble that got them.

Second, building the wall on the so-called “green line” would in effect reward terrorism by essentially agreeing to the 1967 borders without a negotiation. Israel would surely make that retreat as a reward for peace, but it can’t as a reward for violence.

Though an argument can also be made that ignoring the law makes things like this more likely:

(h/t to the FPA Israel blog)

In the 16th century, Niccolo Machiavelli wrote:

You must understand, therefore, that there are two ways of fighting: by law or by force.  The first way is natural to men, and the second to beasts.  But as the first way often proves inadequate one must needs have recourse to the second.  So a prince must understand how to make a nice use of the beast and the man.

This notion of using law as a strategic tool is not the thing for which Machiavelli is most remembered.  However, the idea has recently resurfaced.  “Lawfare replaces warfare and the duel is with words rather than swords,” wrote John Carlson and Neville Yeomans in the 1970’s.  “Small nations hope to use the rules to protect their own interests, while large nations attempt to utilize the rules to control other nations,” wrote Chinese strategists Qiao Liang and Wang Xiangsui in 1999.

And the man normally credited with thrusting this notion to the forefront of Western security strategy is Air Force Major General Charles Dunlap.  In a 2001 essay, he asked:

Is lawfare turning warfare into unfair?  In other words, is international law undercutting the ability of the U.S. to conduct effective military interventions?  Is it becoming a vehicle to exploit American values in ways that actually increase risks to civilians?  In short, is law becoming more of the problem in modern war instead of part of the solution?

Dunlap’s answer was yes.  He argued that “the rule of law is being hijacked into just another way of fighting (lawfare), to the detriment of humanitarian values as as the law itself.”  His proposed solution, though, was to revise and strengthen the law of armed conflict (LOAC).  He wrote:

We also must have a better linkage between those knowledgeable of military affairs and those civilian specialists expert in LOAC.  Only productive cooperation can achieve the critical mass necessary to sustain international law as a guiding element in military interventions.  We should encourage other nations to develop a robust cadre of uniformed lawyers ready to provide insightful advice to commanders in the field.  Finally, we must not allow thoughtless, ill-informed, and politically motivated accusations to trivialize LOAC’s fundamental principles.  If it does, LOAC will lose its credibility with the very people - and the very nation - it most needs to make certain it is observed and, more importantly, preserved.

Donald Rumsfeld, as Defense Secretary, seized on this lawfare notion, but argued the opposite solution.  Contrary to Dunlap’s proposal of strengthening the law, Rumsfeld advocated dislodging the U.S. from its international legal obligations.  However, his proposal fell flat, in part over State Department and Justice Department objections.  As Jack Goldsmith wrote in this book:

The Department of State argued that any effort by the United States to oppose the increasingly powerful institutions of international justice would seem like a defensive admission of the very war crimes charges it wanted to avoid.  The effort would also smack of hypocrisy, the State Department emphasized, since the United States aggressively used human rights institutions - including universal jurisdiction lawsuits - to check human rights abuses by other nations.  The Department of Justice also opposed any anti-universal jurisdiction campaign on the ground that it would jeopardize its ability to bring its own universal jurisdiction prosecutions against foreign leaders and terrorists.

In other words, law could not be divorced from security strategy.  Dunlap’s further assessments of the wars in Iraq and Afghanistan underscore this point.  He said in 2005 of the Abu Ghraib abuses that they “had the same effect as a traditional defeat.  The reality is Americans have died and will continue to die as an indirect result of this.  It energized the enemy, it eroded the Coalition, it achieved all those kinds of things that you would want if you were going to oppose it through a battlefield defeat.”  He wrote in 2007 of an International Security Assistance Force (ISAF) spokesman’s statement that ISAF would not attack Afghan military targets if they knew civilians were nearby, “this statement does not reflect the law, and in fact could put even more of the truly innocent at risk.”

What role does international and domestic law truly play in the world order?  What are the political and strategic consequences of violating the law?  How can international law be improved to better ensure global security?  How has international law and its role evolved throughout history?

This blog will examine these questions.