Terrorism vs. Crime

From left: Ali Abd al-Aziz Ali, Waleed bin Attash, Khalid Sheikh Mohammed, Mustafa Ahmad al-Hawsawi and Ramzi Binalshibh. (AP)

From left: Ali Abd al-Aziz Ali, Waleed bin Attash, Khalid Sheikh Mohammed, Mustafa Ahmad al-Hawsawi and Ramzi Binalshibh. (AP)

Responding to Attorney General Eric Holder’s explanation that Khalid Sheik Mohammed is being tried in civilian courts because the 9/11 victims were mostly civilians and because the attacks took place on U.S. soil whereas his compatriots who attacked the U.S.S. Cole would be tried before military tribunals since the attack was on a military target, Tom Maguire quips “[I]f the next batch of terrorists are clever enough to attack an elementary school will they be tried in juvenile court?”

More seriously, he points us to Pat Buchanan‘s column asking “Are We at War — Or Not?”

Is it possible we have done an injustice to this man by keeping him locked up all these years without trial? For that is what this trial implies — that he may not be guilty.

And if we must prove beyond a reasonable doubt that KSM was complicit in mass murder, by what right do we send Predators and Special Forces to kill his al-Qaida comrades wherever we find them? For none of them has been granted a fair trial.

When the Justice Department sets up a task force to wage war on a crime organization like the Mafia or MS-13, no U.S. official has a right to shoot Mafia or gang members on sight. No one has a right to bomb their homes. No one has a right to regard the possible death of their wives and children in an attack as acceptable collateral damage.

Yet that is what we do to al-Qaida, to which KSM belongs.

We conduct those strikes in good conscience because we believe we are at war. But if we are at war, what is KSM doing in a U.S. court?

Buchanan goes on to give several historical examples, some more salient than others.  But his overall point about the dichotomy over how we’re dealing with terrorists vice how we deal with criminals is apt.  He continues:

Were not KSM’s Miranda rights impinged when he was not only not told he could have a lawyer on capture, but that his family would be killed and he would be water-boarded if he refused to talk?

And if all the evidence against the five defendants comes from other than their own testimony under duress, do not their lawyers have a right to know when, where, how and from whom Justice got the evidence to prosecute them? Does KSM have the right to confront all witnesses against him, even if they are al-Qaida turncoats or U.S. spies still transmitting information to U.S. intelligence?

I am not a lawyer but there are ways around some of these issues.  But, for the most part, the Justice Department will be very constrained in what evidence it can present given the need to protect sources and methods.

UPDATE:  CIPA link via Adam Serwer.   Note, too, that my concern isn’t that classified information will go unprotected but that the need to protect classified information will hamstring the prosecution.  Given that we have other, legally sanctioned options, having a civilian show trial strikes me as imprudent.

FILED UNDER: Law and the Courts, Terrorism
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. odograph says:

    I believe it was an error to ever consider non-state actors as anything more than crazed criminals. It empowered them.

  2. Zelsdorf Ragshaft III says:

    Odograph, then by your reasoning they are not guilty by reason of insanity, or is that just your problem? Bin Ladin declared war on the United States. While it may be unorthodox to consider it war with organization, however it is not war to deal with nations which harbor those who commit theses acts. It is just stupid to think theses people are crazy. They are plotting to bring about an outcome. That outcome is the defeat of the United States of America. A conversion to Islam would complete the act. I would be curious to see how the Taliban like authority would deal with gays and atheists.

  3. Leisureguy says:

    The U.S. government has “prosecuted 195 terrorists in civilian courts since the terrorist attacks of Sept. 11, 2001, with a 91 percent conviction.” Only “three terrorists have been tried before military tribunals.”

    That’s from a mailer from the Center for American Progress. I see no reason at all not to try terrorists in American courts. That’s what they’re for, after all, and they do a good job, I think.

  4. odograph says:

    That is a bizarre take, Zelsdorf. I’m saying try them as we do most criminally insane and put them in federal prison for life. That’s where all the criminally insane serial killers are.

    (We have a high bar for legal “insanity” in this country, and it is not at all the same as actual insanity. For what it’s worth, I’d be fine with broadening legal insanity, as long as we have prisons for the criminally insane. Those prison should actually be harder to get out of than the regular sort of prison. Choosing an insanity defense should be risky.)

  5. odograph says:

    BTW, when a nation protects the criminally insane, then obviously the nation is a state actor, and can become object of war. No problem.

  6. Anderson says:

    Tom Maguire quips “[I]f the next batch of terrorists are clever enough to attack an elementary school will they be tried in juvenile court?”

    Maguire is a hack. That’s not even funny, let alone relevant. How many elementary-school-age kids died on 9/11? Quite a few, I think.

    Buchanan is also a hack. Were al-Qaeda holed up in Paris, we would not use Predator drones; we would demand that the French detain and extradite him. But they’re in what is a de facto lawless zone, over which Pakistan claims sovereignty de jure but does not exercise it in practice. The only party with a right to complain about our Predator attacks is Pakistan, and they haven’t done so, for many reasons.

    Since there’s no sovereign, and since military force is the only way to apprehend these people, that’s what we do.

    The oft-used analogy to pirates is persuasive to a point, but in the 1700s, detaining and trying a boatload of pirates wasn’t always a practical option, hence summary executions etc. Where there is no obstacle in the modern age to returning KSM or Osama to the U.S. for trial, that should be done.

    As for holding KSM, I agree he was held too long (thanks, Bush), but there is no legal obstacle to holding a terrorist suspect for security debriefing irrespective of trial. I can’t imagine the Supreme Court would marshal one single vote for any problem with that. KSM may have a Bivens action vs. those who tortured him, but the correct response would be a civil suit by the 9/11 families to recover every penny he (or his estate) might be awarded.

  7. PD Shaw says:

    The Congress declared war in its Authorization to Use Military Force, and was interpreted as such by the Supreme Court. All this stuff about war or not war is a bunch of navel-gazing, unless we want to retract the AUMF or declare victory.

    The whiplash that I’m experiencing is that after years and years of anti-Bush rhetoric that the traditional military tribunals were a good fit for the WOT (as opposed to the modified military tribunals sought by Bush), the goal posts have been moved.

  8. Anderson says:

    The Congress declared war in its Authorization to Use Military Force

    No, the Congress authorized the use of military force in its AUMF. The SCOTUS has found this functionally equivalent to war for many purposes, but the AUMF does not retroactively cloak the deeds of 9/11 with the respectability of “warfare.”

    If 9/11 was an act of war, then the Pentagon attack was certainly legitimate, and the WTC attacks might be as legitimate as were Dresden or Nagasaki. Isn’t an attack on the U.S. financial center a “legitimate” target? If the Soviets had targeted lower Manhattan in a nuclear strike, would that have been a war crime?

  9. djhopscotch says:

    If 9/11 was an act of war, then the Pentagon attack was certainly legitimate, and the WTC attacks might be as legitimate as were Dresden or Nagasaki. Isn’t an attack on the U.S. financial center a “legitimate” target? If the Soviets had targeted lower Manhattan in a nuclear strike, would that have been a war crime?

    What nation do the terrorist represent?

  10. Dave Schuler says:

    FWIW, eight of the victims of 9/11 were of elementary school age.

  11. Anderson says:

    What nation do the terrorist represent?

    The Islamic Emirate of Bogustan.

  12. Dave Schuler says:

    I’m not sure there’s any way to discuss the issue of crime vs. war in an intelligent way without coming to terms with the issue of ungoverned territories in a Westphalian context. Are the governments of Afghanistan or Pakistan governments at all?

    Can private citizens wage war?

  13. Leisureguy says:

    If this is truly a “war,” then I look forward to the ceremony of surrender and the treaty that ends the war. Wonder who will show up for the other side?

  14. PD Shaw says:

    Anderson, you make a distinction without a difference. Congress specifically authorized use of war powers against those responsible for 9/11 and those who aided them. According to the SCOTUS that means the government can use all of the power available under the laws of war, such as indefinite detentions, subject to the international treaties governing the conduct of war.

  15. Anderson says:

    PD, we’re talking past each other I think. How does your point relate to whether KSM, for instance, (1) is amenable to trial in district court and (2) is entitled to POW protection or other Geneva protections?

    … Dave frames the problem correctly, I think. Pakistan’s government exercises sovereignty over much of that country, but not it seems over the NW Province.

    One could argue that Pakistan really simply is not willing to do its duty re: the Qaeda members in its borders, much like the Taliban after 9/11; but for various reasons, we find it preferable to distinguish the two cases.

    Consider if residents of Montana were raiding across the border into Canada, and the U.S. professed itself powerless to restrain said residents. Canada would be entitled to use military force in Montana against those residents, and those residents would not be “at war” with Canada, however much they might like to dress up and play soldier.

  16. Ugh says:

    I don’t know why everyone assumes they’re going to plead not guilty. They want to be martyrs, easiest way right now it to plead guilty to a capial offense and then waive all rights to an appeal.

  17. Anderson says:

    I don’t know why everyone assumes they’re going to plead not guilty. They want to be martyrs, easiest way right now it to plead guilty to a capial offense and then waive all rights to an appeal.

    Lawfare, baby, lawfare!

    … I could see them going Ugh’s way — that is exactly what KSM tried to do at the Gitmo commission — but they might also decide that they want the chance to mouth off.

  18. Ugh says:

    but they might also decide that they want the chance to mouth off.

    Maybe, but as I’m sure you know this isn’t state court, there won’t be any cameras a-la the OJ trial, and court reporter drawings are pretty lame. Moussaoui tried to turn his trial into a spectacle, but without video (or audio) he failed.

    I think KSM and his co-horts will plead guilty in the hopes that the U.S. executes them so they can consider themselves martyrs. The Obama administration might even be counting on it. And what a coup it would be for them too (the only question being whether Obama should commute the sentence to life without parole to deny them their perceived martyr status).

  19. PD Shaw says:

    Anderson, I merely pointed out that we are at war and it’s a waste of breath to talk about we’re not really at war unless Congress is going to do what it did to Clinton in Somalia and trigger the war powers resolution.

    whether KSM, for instance, (1) is amenable to trial in district court

    I think he’s amenable; prudence would dictate use of the military tribunals that the SCOTUS said were more than appropriate for most prosecutions under the AUMF and the concerns raised about classified information, use of hearsay, access to information from foreign lands, etc. The U.S. used military tribunals to convict Osama bin Laden’s driver; it’ almost certainly makes more sense to treat KSM as the war criminal he is.

  20. Anderson says:

    I don’t think Obama could commute their sentences and get re-elected, even if life in Supermax is a fate worse than death.

    Agreed they wouldn’t get to use the court as a soapbox, but they may not realize that, or believe the appointed counsel who tell them that.

    … Again, PD, I hear “war criminal,” but I do not understand how non-state actors can be “war criminals.” Particularly for actions preceding the AUMF.

  21. Leisureguy says:

    Really: Those who believe that this is a “war”: Who on the other side is authorized to surrender? Who can sign a treaty to end the war? Who is in charge of the other side?

    It’s not a war. It’s a bunch of criminals running around using terrorism to try to frighten nations—and the US seems to be terribly frightened, to the extent that many (especially in the GOP, I must note, though some Democrats as well) are afraid even to have more terrorists in prison here. (They ignore the terrorists already imprisoned.)

  22. PD Shaw says:

    A few comments on the Westphalia issue:

    We have within our legal traditions the notion that individuals can “levy war,” which, when done by a citizen or one otherwise owing an aliegance, is called treason. These concepts arose in England pre-Peace of Westphalia, and are adopted to a time in which war was more frequently initiated by private actors, not states. The offense was adjudged by the charachter and intent of the act. AFAIK non-citizens were simply executed or deported.

    Jefferson took the country to war against the Barbary pirates, which were essentially just a bunch of tribes under de jure, but not de facto, control of the Ottoman Empire. Hamilton’s defense of Jefferson is what I consider the defining explanation of the Constitution’s war provistions: a declaration of war is not needed when a state of war already exists.

    During the Jacksonian era, Americans used to go up to Canada to engage in sabatouge and other activities intended to undermine British rule of Canada. The British threatened war and invasion if the U.S. didn’t keep its citizens under control. I think Britain was well within it’s rights to go to war with the United States, or at least conduct raids into the U.S. much as it did to Mexico in pursuit of Poncho Villa later.

  23. odograph says:

    I see a clear distinction. People captured on the Afghan battlefield are POWs, people “renditioned” from Germany in the middle of the night were (supposed to be) terrorists, and criminals.

  24. G.A.Phillips says:

    lol, good golly there are a lot of lawful neutral rules lawyers posting these days….

    A criminal don’t fly ******* jumbo jets full of people into skyscrapers full of people, in the name of their god’s holy war,they are war criminals, so are the peaces of **** who fight under their banner, also the ones who give them support.

  25. Ugh says:

    So, G.A.Phillips, presumably you’re a self-described “peaces of ****” for supporting them?

  26. PD Shaw says:

    Anderson, I don’t believe the date of the AUMF is determinative of when a state of war began. Al-Qaeda declared war on the U.S. several years earlier, attacked the U.S. Cole, the U.S. responded, etc. A state of war exists IMHO whether or not recognized by both sides.

    In any event, I am pretty sure one of the war crimes is engaging in a plan to wage aggressive war. The so-called crimes against the peace were the basis of a number of sentences at Nuremburg.

  27. Anderson says:

    To see whether I understand you, PD: could Timothy McVeigh have been prosecuted as a war criminal? If not, why not?

  28. odograph says:

    Either you aren’t old enough GA, or the memory is starting to go. Bombers and threatening bombers hijacked planes and when caught were tried as criminals since the beginning. (This was especially popular in the 60’s and 70’s, with Cuba as a destination.) The guys who bombed, as opposed to airplane crashed, the twin towers were tried as criminals as well.

  29. Radical Islamists are not playing by our rules. I doubt that most of them are familiar with the Treaty of Westphalia and those that are would laugh at it as binding upon them.

    They are fighting for what they consider to be the Ummah which wouldn’t be recognizable under any Westphalian taxonomy but is as real, if not more real, to them than national boundaries are to many transnational progressives.

    The game has changed. Substantially. And yet, some speak as though the Marquis of Queensbury rules were still in effect. The old paradigm has been shattered and it will be some time before a new, acceptable equilibrium is reached.

    I don’t have many answers, but I do believe that our legal system is not able to effectively deal with terrorism and a lot of bad cases are going to lead to a lot of bad laws — and not just the cases or laws in front of us now. Conversely, there are some legitimate concerns about just throwing all of this over to the military, not the least of which in my mind is essentially abdicating civilian control over them if they are allowed to decide what is appropriate.

  30. Anderson says:

    I do believe that our legal system is not able to effectively deal with terrorism

    Why not? Whose legal system should be imitate?

  31. Leisureguy says:

    @Charles Austin: Our legal system is not able to deal effectively with terrorism? Why not? What about the 195 terrorists that have already gone through the legal system (with a 91% conviction rate)? Doesn’t that indicate that the legal system can handle terrorists just fine? (Provided the idiots who ordered torture are restrained—the FBI always thought that was stupid.)

    What’s amazing to me in the wake of the Maj Hasan incident is that some people don’t even think courts can handle the crime of murder—people like Wolf Blitzer who immediately call for (in effect) a lynch mob: “Hang ’em high!”

    Of course the lynch mob is an old American tradition, but not one of which I am particularly proud as an American.

  32. Dave Schuler says:

    As a small aside (and because I know that PD Shaw is reading Walter Russell Mead’s book), this discussion reveals some of the fault lines in American political thought rather nicely. Jeffersonians in general are concerned about what Jacksonians would think of us meaningless theoretical discussions or legal niceties. charles austin, above, exemplifies the Jacksonian position rather nicely.

    I haven’t seen representatives of the Wilsonian (exemplified by neon-conservatives) or Hamiltonian (realist optimists like George H. W. Bush) streams so far in this discussion.

  33. 9/11 was on a different scale, and whatever happens next, whenever it happens may well drawf that.

    Anderson, I thought I was rather clear in saying that there isn’t any system we can imitate that will suffice and offering a few reasons why.

    Leisureguy, I don’t think the type of international, post-Westphalian enemy we face is readily amenable to our system of justice, much less such grand ideas as the Geneva Convention, but your mileage may vary. I certainly haven’t argued for any lynch mobs and have said nothing about Major Hasan being processed according to anything but the UCMJ. Please do not try and associate me with such actions.

    Our justice system may arguably be the best available, but let’s not believe it is perfect or capable of dealing with anything and everything that may arise.

  34. Dr. Schuler, I’ll take that as a compliment. 🙂

  35. G.A.Phillips says:

    So, G.A.Phillips, presumably you’re a self-described “peaces of ****” for supporting them?

    I have never supported the jihadists. You know like Iran, true believer sypathizers who funnel them money, and snivleing little liberals who undermine the war against them for poltical gain.

  36. Leisureguy says:

    @charles austin: Right, you certainly were NOT calling for a lynching—I was still steaming about Wolf Blitzer (and others) who want to skip the legalities.

    Although 9/11 was certainly huge, people involved in that crime still can be tried in court. I can’t see any reason why not, at least. Why can’t it be tried in court?

  37. odograph says:

    Radical Islamists are not playing by our rules. I doubt that most of them are familiar with the Treaty of Westphalia and those that are would laugh at it as binding upon them.

    Sure, but consider this thought experiment … what would they want to be called?

    Do they want to be classed as the criminally insane, along with pedophiles and other deviants, or do they want to be thought of as a coherent army?

    This what I meant in my first post about empowering them. GWB made Al Queda an army, and not a deviant’s mailing list.

  38. odograph, you have strange ideas about George W. Bush and his authority and power. Calling Al Qaeda an army doesn’t make them one, especially one subject to the Geneva Conventions.

  39. PD Shaw says:

    To see whether I understand you, PD: could Timothy McVeigh have been prosecuted as a war criminal? If not, why not?

    My personal view is that McVeigh cannot be charged as a war criminal by the U.S. because he was a U.S. citizen and even if one were to argue that he was levying war against the U.S., he could only be tried for treason under the specific Constitutional protections he was guaranteed.

    I know I probably confused things by mentioning 14th century English law, but I did so just to point out the concept of war by private parties is not new or unique. I wouldn’t suggest that it is necessarily consistent with the U.S. Constitution.

  40. Leisureguy says:

    @charles austin: Just curious: is there any reason the US should not observe the Geneva Conventions on humane treatment of prisoners for ALL prisoners held by the military, whether the prisoners are military or civilian?

  41. Dave Schuler says:

    Dr. Schuler, I’ll take that as a compliment. 🙂

    It was intended as one.

    I think that all of the traditional American schools of political thought have their strengths as each has its weaknesses. It is the combination that gives our system its durability. E pluribus unum.

  42. Leisureguy, short answer: yes, though you must be careful about using that as a blanket excuse to accuse me of all sorts of sins that may or may not be appropriate. I don’t have time for a long answer now. Sorry.

  43. Leisureguy says:

    Point taken. I suppose we disagree: I advocate humane treatment for prisoners. Probably not a popular position among conservatives (those who are not prisoners, that is).

  44. odograph says:

    What I said was historically true, wasn’t it? No room for wiggle: George Bush was the first President to classify terrorists as foreign combatants.

  45. G.A.Phillips says:

    Either you aren’t old enough GA, or the memory is starting to go. Bombers and threatening bombers hijacked planes and when caught were tried as criminals since the beginning. (This was especially popular in the 60’s and 70’s, with Cuba as a destination.) The guys who bombed, as opposed to airplane crashed, the twin towers were tried as criminals as well.

    I remember,I don’t see the similarities, Al Qaeda is worldwide jihadist movement that declared war upon us and has been fighting it against us like war criminals on a global front.

    We can go on and on, I believe calling them or trying them as mere criminals is naive.

  46. PD Shaw says:

    Dave, I would say the Wilsonian and Hamiltonian have been alluded to here.

    The Hamiltonian position in the Constitutional debates was to draw a distinction between declaring war to bring the country afresh into hostilities and self-defense in response to hostilities. The bombing of the Cole provided the same justification as the war against the Barbary Pirates. I would note that the 9/11 Comm’n probably has a good number of Hamiltonians on it and they were particularly critical of Clinton’s failure to respond to the attack on the Cole (and by extension Bush II when he took office).

    The Wilsonian position appears well represented by those who believe trying KSM in civilian court is an important demonstration of America’s values.

  47. G.A.Phillips says:

    I advocate humane treatment for prisoners. Probably not a popular position among conservatives (those who are not prisoners, that is).

    I advocate humane treatment for babies inside or outside of the womb. Not a popular position among liberals (those who have been born already, that is)

  48. odograph says:

    GA how do you answer the “what do they want to be called” question? Or how do you call them a “movement” without empowering that movement?

    The day after 9/11 the world saw this as a crime. We gave that up, when we accepted Bin Laden’s framework. That was stupid.

    The right framing would have been to make war on Afghanistan because they protected the mad criminal ringleader Bin Laden.

  49. G.A.Phillips says:

    The day after 9/11 the world saw this as a crime.

    Ameracains saw it as an act of war. The right framing would have been to attack every country that supports these kind of views and allows them safe haven unless or until they surrendered all of these bastards and changed their ways.

    You do remember all of the countries or should I say crazed Islamic slave states who celebrated this as a great victory?

    first we give them a chance to comply, then we don’t **** around. just like we did in the beginning with the Talaban and Saddam.

  50. odograph says:

    I remember Egypt and Saudi Arabia making statements condeming the act. Did any nation actually support it? Link?

  51. odograph says:

    This is a back-thread and probably no one will read it anymore … but this is a pretty important point, that we did have the world on our side:

    INTERNATIONAL REACTIONS FOR 9/11

    Even leaders of countries that did not tend to get along terribly well with the American government expressed their sorrow and dismay. The Cuban foreign minister offered airspace and airports to American planes. Chinese and Iranian officials sent their condolences. And the Palestinian leader Yasser Arafat, visibly dismayed, told reporters in Gaza that the attacks were “unbelievable, unbelievable, unbelievable.” “We completely condemn this very dangerous attack,” he said, “and I convey my condolences to the American people, to the American president and to the American administration.”

    I still think that treating the act as a crime (and when they supported it, Afghanistan as a state enemy) was appropriate. That would have leveraged world support going forward.

    There’s a great word – realpolitik – a criminal designation would have been technically correct and been amorally pragmatic as well.

    … unless what we wanted was wider war, which leads in a worrying direction. That is, the Bush administration knew they were broadening the attacks to make more enemies, and that is what they wanted.

  52. Papilo Agojo says:

    Does the US government anti-terrorism campaign focuses only on the middle east specifically Afghanistan?

    If that’s the real score then the “US campaign against global terrorism” is nothing!

    Please don’t fool the world!

    Why the US government ignores the report about the alleged engagement of Fedex representative who provided material support to communist gurillas in 2001?

    Is it because Fedex, an American business icon, is the one involved?

    The US government is unfare not only to Filipino people but to the families of Amercan soldiers killed by Philippine communist guerillas prominently Col. Nick Rowe!

    Does the US government still remember that?

    Paging the families of American soldiers killed in the Philippines by communist guerrillas! Come out and ask Pres. Obama about it! You still have the right to ask for justice!

    That Fedex representative grossly violated the laws of the Philippines. Fedex management through its country manager was well aware of that and despite such no sanction was applied they allowed their representative to continue using Fedex name – meaning Fedex management closed their eyes while their Philippine representative was violating their Code of Business Conduct and Ethics.

    Clearly, the Fedex management was bullied by its local representative who happens to be a “big fish in small pond” guy in the Philippines.