[Reformatted per below. Thanks to the folks who sent in better-formatted versions (Emacs macros must be pretty popular); Paul's seemed the most readable. --Declan] --- Subject: Re: FC: UCLA's Mark Kleiman on military tribunals, political tactics Date: Sun, 6 Jan 2002 12:33:51 -0800 From: Paul Schreiber <shrubat_private> To: "Declan McCullagh" <declanat_private> Declan, I've rewrapped the text, making it easier to read. I've guessed at where the paragraphs end. What I got from you looked like this: > Several of you, noticing my silence so far on the military tribunals > issue, > > have written wondering whether I was sick or had merely gone soft on > Bush. [snip] [This has been forwarded around a bit. Mark Kleiman teaches public policy at UCLA (http://www.sppsr.ucla.edu/faculty/kleiman.htm) and was the Director of Policy and Management Analysis for the Criminal Division at the DOJ. --Declan] --- From: "Kleiman, Mark" <kleimanat_private> Subject: Military tribunals Date: Tue, 11 Dec 2001 Friends: Several of you, noticing my silence so far on the military tribunals issue, have written wondering whether I was sick or had merely gone soft on Bush. In fact, I was waiting to have dinner with my old friend Ruth Wedgewood, now of Yale Law School and SAIS, who's an expert on the law of war and other relevant topics. However, the dinner, scheduled for tonight, has been moved back a couple of days. So here goes. (Anyway, waiting to write until I actually knew something would have felt like cheating.) So far, what I've read seems to have failed to separate two quite different issues: the first-order question of how captured al-Qaeda operatives and allies should be handled (and how precisely to define who counts as an operative or ally) and the second-order question of who gets to decide that first-order question. [Since the first-order question is itself largely procedural, having to do with the constitution of a court and its rules of evidence and standards of proof, we have one procedural question stacked on another.] The discussion has also largely omitted any consideration of the various goals to be sought, and the means-ends relationships between alternativeprocedural formats on the one hand and the goals on the other. The discussion as also, I think, entirely missed the whole point of the exercise from the Administration's viewpoint; once again, the press has been snookered into cooperating. First things first: What are we trying to do? (1) Win a war, which means putting the opposing force in a position where it lacks the will or the means to inflict further damage on us. (Call that the military objective.) (2) Discourage other individuals from joining al-Qaeda to attack the US; discourage other groups from attacking the US; discourage other governments from helping al-Qaeda or other groups attack the US. (The deterrent objective.) (3) Ensure that individuals who have committed crimes can't do it again. (The objective of incapacitation.) (4) Punish individuals who have committed crimes (the retributive objective), to make ourselves feel good, to vindicate the rights of those victimized, or because we owe it to the criminals. [That last one is according to Kant, who must have been smoking something; the first one isn't really much of a reason; but the one in the middle - the state acting as the kin group acts in a society that recognizes the feud - strikes me as important and under-appreciated. Not punishing the criminal validates the victimization, which both adds insult to injury and identifies the victim, and similarly situated persons, as people who can be injured with impunity. That's part of the justification for hate-crimes laws.] The law of war, as I understand it, makes a distinction between soldiers on the one hand and saboteurs and spies on the other. Soldiers, who fight in uniform and answer up a chain of command, are entitled if captured to be held in prisoner-of-war camps with various rights protected. In principle, they are being held, not punished. Spies and saboteurs, who fight surreptitiously, are liable if caught to be summarily executed, like Nathan Hale and Major Andre. (Soldiers who fight "unlawfully" -- i.e., commit war crimes -- are also subject to punishment; I'm vague on the procedural difference between the drumhead court-martial that deals with a spy and the war-crimes trial of a soldier.) Al-Qaeda has committed acts of war against the United States, but it isn't an army; its operatives don't wear uniforms and don't have superiors accountable for their actions. If sneaking into an enemy camp, not in uniform, to plant a bomb is an act of sabotage that can be punished summarily, then I can't see why hijacking a plane to fly it into a civilian building is any different. Even if it can't be shown that Bin Laden personally gave the orders for September 11 or any of the previous outrages, he was undoubtedly the leader of the organization that carried them out. Again, it's hard to see why he, and the rest of the al-Qaeda leadership, shouldn't be subject to the same treatment as their operatives. If, having captured them, we then take him out and shoot them, I for one will be in a mood to celebrate. The Taliban fighting forces, by contrast, are an army, and the Taliban regime was a de facto government, though one we (properly, I think) refused to recognize. Allowing al-Qaeda to operate from Afghani territory was an evil thing to do, and quite plausibly constituted war crime. (And the way they ruled Afghanistan arguably constituted a crime against humanity.) But that doesn't seem to me to justify treating Omar, if captured, the way we would be justified in treating Bin Laden. He's more like Milosevich, or the German and Japanese officials tried after World War II. [And we may want to be a little careful about establishing as a legal principle that a government official who as a matter of policy facilitates a terrorist act can be held criminally responsible; it's not that I wouldn't personally like to see Jesse Helms executed by the government of Angola for his assistance to Jonas Savimbi's (continuing) campaign of mass murder, or Oliver North on trial in Nicaragua for his contribution to Contra terrorism, but how about officials of governments that abetted ANC terrorism in South Africa?] When it comes to Taliban soldiers (whether Afghanistani or foreign) captured in the fighting, they would seem to be entitled to POW treatment unless they personally committed or ordered war crimes. After all, we didn't treat German or Japanese soldiers in World War II as criminals, even though we hanged their leaders. However, according to newspaper accounts, the Northern Alliance does not subscribe to this theory, and Taliban volunteers (as opposed, supposedly, to conscripts) and especially foreigners in Taliban service, are being treated as criminals. The question of what to do with the al-Qaeda leadership if we catch them is made simpler by being overseas, in a combat zone, where military law is obviously the relevant law. It's made more complicated by the distance between the acts of sabotage and the people being captured and punished for it. The summary nature of the military trial of spy or saboteur is justified by the fact of his being caught more or less red-handed. Even if we're prepared to say -- as I think I am -- that every cook and driver and computer technician at al-Qaeda headquarters was part of a bandit gang and ought to hang, figuring out who was actually a member of al-Qaeda isn't going to be completely straightforward. (Note that this would mean treating al-Qaeda membership more severely than we treated SS membership; if we wanted to make finer distinctions of degrees of culpability within al-Qaeda, that would make the decision-making process even harder.) In any case, from an American Constitutional perspective, none of this matters very much. It's clearly a military issue, and it has nothing to do with the rights of people who live here, as citizens or otherwise. Now take the case of Mr. Moussauoi, or the al-Qaeda operatives who apparently tried to hijack a fifth plane on September 11. They're much more like the classic saboteurs contemplated by the law of war. So why shouldn't they get the same drumhead court-martial and the same swift death? Arguably, they should: that's the precedent of the Nazi saboteurs. A military tribunal is likely to punish more swiftly, more certainly, and more harshly than a civilian court; those differences might, in a particular case, serve military, deterrent, incapacitative, or retributive purposes. Those advantages (from the viewpoint of a prosecutor) arise from virtually every element of a military trial. Such a trial can admit evidence derived from warrantless wiretaps and other searches, and evidence derived from "extraordinary means of interrogation" (i.e., torture). It can also admit secret evidence, and deny the defense the ability to force the prosecution to reveal how that evidence was gathered. This prevents both the revelation of information that might serve an enemy and the practice of "graymail," where a defendant uses the threat of such revelation as leverage in plea negotiations. It can admit hearsay. It is staffed by military officers, not civilian judges and jurors. In addition to the fact that the members of such a court have just been fighting the organization of which the defendants are members, they know that their careers can be advanced or damaged by the decisions they make. (My favorite howler in the debate so far is the argument that having terrorists tried by military courts is perfectly fair, because after all we're willing to have our own soldiers tried by the very same courts: as if being tried by one's enemies were exactly the same as being tried by one's comrades-in-arms.) Moreover, the rules of military justice explicitly allow what is called "command influence," i.e. the lobbying of the judges by their superior officers, which would obviously be improper as applied to civilian judges or jurors. There's no time-consuming jury selection process. And the appeals process is truncated (to zero, according to the Executive Order). Now on the assumption that all defendants are guilty and deserve the maximum sentence, these are all advantages. On any other assumption, we might want to look at them more skeptically. Some people have been heard to deny that our President has a subtle sense of humor, but Swift himself couldn't have topped the wonderful circularity of saying that these procedures are fine for deciding whether to punish people for terrorist acts, because they will only apply to terrorists. Take the hearsay rule, for example. Assume we have an intelligence report dated September 9th in which Agent X reports that Informant Y told him that al-Qaeda member Z told Informant Y that Bin Laden had ordered a major operation for September 11th. As a matter of ordinary reasoning from evidence, this is a smoking gun. As a matter of law, it's utterly inadmissible, even putting the sources-and-methods question aside: just one more instance in which the rules of evidence embody very faulty epistemology. On the other hand, the hearsay rule is also what keeps out mere unsubstantiated gossip; I once sat in a European courtroom in which a police intelligence analyst was allowed to testify that information in the intelligence files (not produced, or further identified) showed the defendant to have engaged in a pattern of behavior consistent with money-laundering, and on that basis the defendant was duly convicted. Again, if we're dealing with "smoking gun" cases, none of this bothers me very much. If someone whose photo was taken at an al-Qaeda training camp gets caught with a suitcase full of dynamite at an airport security checkpoint, the risk of a miscarriage of justice is slight. But the sweep of the legal principles of aiding and abetting, and of conspiracy, is immense. As long as you and I have entered into a common purpose which is against the law, I can be held fully responsible for anything you do in furtherance of that purpose, whether I agreed to it or not, and whether or not I ever did anything at all, let alone anything unlawful, to further that purpose. That means that lots of people whose connection is much less clear than Mr. Moussaoui may find themselves facing capital punishment with diminished procedural rights. Investigators are not shy about using threats to extract information from witnesses: threats of what will happen to them unless they talk, and threats of what will happen to people they care about. This has a way of making people remember what they know, and also what they don't know. Military tribunals will make those threats that much more effective. Now the terror phenomenon genuinely raises questions about some important substantive elements of American criminal jurisprudence. For example, it is not a crime to state the opinion that the world would be a much better place without John Smith in it, or that John Smith deserves to die, or that it's God's will that John Smith should die and whoever kills him will receive great reward in the Hereafter, unless those statements are made in the presence of a mob likely to make an imminent attack on Smith or are directed to some particular individual or individuals (in which cases it counts as "inciting"). So the people who published the fatwa against Salman Rushdie weren't committing any crime. Perhaps that's wrong; it certainly makes me uncomfortable. On the other hand, a law making it a crime to assert that any particular law should be broken would clearly go too far. There's a mullah in New Jersey (I can't recall his name) who for several years has been preaching jihad against the United States. A civilian court probably couldn't be convinced that he's a co-conspirator in the September 11 horrors without some direct nexus, but perhaps a military court could be so convinced. I, for one, would be delighted to have him bumped off, legally or otherwise, (assuming, of course, what I don't know, that the press reports about what he's been saying are accurate). [I add in haste that I urge none of you to act on that thought.] But the notion of making that substantive change in criminal law through a procedural back door makes me very, very nervous. On the other hand, the front-door approach could be even worse: there has already been a serious Congressional move to make it a crime to distribute information intended to facilitate the violation of the drug laws, which arguably would criminalize telling heroin addicts how to avoid getting AIDS by using clean needles. An advantage of instituting military tribunals restricted to accused terrorists is that it would cabin off changes that might otherwise spread to the whole of our criminal law. Now the Executive Order setting up the tribunals would seem to exclude the case of the New Jersey mullah, because the person involved is a permanent resident. A fortiori, it wouldn't apply to citizens. But who says so? Just the President. If he has the power, by decree, to authorize aliens in the United States to be tried before military tribunals today, what keeps him, or his successor, from changing that decree next year to include permanent residents, and the year after to include citizens? Does the name "Theramenes" ring a bell? [No, I guess it doesn't. (Classicists please skip to the next paragraph.) The story is originally in Xenophon, and is retold beautifully in Mary Renault's Last of the Wine. When the oligarchs took power from the democrats in Athens during the Peloponnesian War, a council of thirty (known toitsenemies, and to history, as the Thirty Tyrants) was established. One of its more moderate members was Theramenes, who was widely respected even by the democratic party. Theramenes supported the restriction of the franchise to a list of three thousand men. He also agreed to a proposal of Critias, the hard-line leader, that the right of trial by the assembly, formerly guaranteed to all Athenian citizens, should be restricted to that same list. Eventually, Critias went too far in repressing the democrats, and Theramenes objected. Critias then had him arrested in a council meeting. When Theramenes demanded a trial by the Assembly, Critias ... but you've guessed it by now ...crossed his name off the list of voters, and had him executed forthwith.] So I'm not very concerned about trying al-Qaeda folks before military tribunals, but the notion of doing so by decree strikes me as an extremely bad idea. Moreover, it isn't necessary if the goal is simply to take captured terrorists out of circulation. As Ruth Wedgewood has pointed out, any captured enemy warrior, even a lawful one, can be held without trial as a prisoner of war until the war is over. (Which in this case might be the Twelfth of Never.) A tribunal adds only two things to that: a determination of guilt, so that the person can be treated as a criminal rather than a soldier (but unlawful warriors aren't entitled to POW protections anyway) and the possibility of execution. Retribution can wait. So the justification for holding trials now before military tribunals, rather than holding prisoners until al-Qaeda is no longer a fighting force, must depend on the value of quick executions to deterrence or to the military objective of breaking the will of the enemy. To have a military court sentence someone to prison whom we could have held as a prisoner without a trial seems pointless. But that, I think, is the real point here. The purpose of the executive order wasn't to actually have military trials; note that Zacharias Moussaoui is to be tried in a civilian court. Its purpose, which it has beautifully served, is to start a debate about military tribunals, as a way of making Democrats, liberals, and academics, who stubbornly insisted on supporting the Administration's anti-Qaeda policies, take a stand against them, thus allowing the Bush team to question their patriotism. That's why the order was so sloppily drafted that even its supporters have to defend it for what it should have said rather than what it says (e.g., by arguing that the provision decreeing that there shall be no appeal from the verdict of the tribunals doesn't mean it). That's why there was no consultation on Capitol Hill; and of course Sen. Leahy immediately fell into the trap, making a Constitutionally quite reasonable complaint about not being consulted which the Bushies immediately spun as personal pique interfering with national security. And that's why John Ashcroft made that McCarthyite speech about how anyone who criticized the Administration was supporting terrorism. The Washington Post promptly spanked Ashcroft in an editorial, which of course he didn't mind at all. The Post pointed out that this wasn't an outburst, but part of a prepared text, and therefore must be taken to represent Ashcroft's considered views. The Post didn't point out that all such testimony must be cleared by the White House. The voice is the voice of Ashcroft, but the hands are the hands of Karl Rove. Let's not forget, this stuff worked for the Republicans all during the Cold War. It won't be nearly as easy or as successful this time, because the factual basis is so utterly absent. It was in fact the case that liberals were somewhat more likely than conservatives to see some good in leftist regimes and movements that were also friendly with the bad guys, and considerable evil in rightist regimes and movements that were on our side against the Bear. But aside from Noam Chomsky and others who have simply let their anti-Americanism become a habit, there's no one on the left who really has much in the way of sympathy for al-Qaeda, and no important Democratic politician who has any at all. In opposing al-Qaeda, we really have overwhelming national unity, with no partisan or ideological division. That's why it was so clever of the Bushies to invent military tribunals as a wedge issue to drive the civil libertarians back into opposition. It won't work well. But it will work some. There! I haven't gone soft after all. Aren't you relieved? ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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