I was in Israel when the initial storm rained down over the appalling treatment of Iraqi war prisoners at the Abu Ghraib prison in Baghdad. As shameful as any proud American must feel at the arrant inhumanity and sinister glee the images exude, it was worse to experience the shock while in a foreign country–especially one warmly disposed toward the U.S. To be caught in the searching eyes of one’s friends and struggle for the words to explain that which one cannot himself understand is a tall order.
There are worthy arguments in mitigation. The measure of us as a people lies not only in the unspeakable that was done in our name, but in how it came to light (by the conscience and courage of a member of our armed forces), the promptness of aggressive investigation, the transparency with which we open our faults to the world, and the decisive way the guilty are ultimately rooted out and punished. Yet, while the determination to exact justice for Ghraib in a forceful, public way is all well and good, our concerns are broader than that. Another part of our measure lies in how well we come to terms with that, and what we do to address it.
THE ENEMY & THE AMERICAN WAY
The problem of captured enemy combatants in this new kind of war is immensely serious. Indeed, the whole crossroad of terrorism and law enforcement is complex. For those of us who contend that the criminal-justice system is a poor fit for terrorists, it has never been so thoughtless a matter as “lock them up and throw the key away.” It is imperative that we defeat enemies who mean us existential harm; we cannot simply manage militant Islam as if it were a mere nuisance. But even as our cause is just so must our manner of execution be legitimate. The sanctity and dignity of human life is a bedrock premise of civilized society, expressed at the Founding in the Declaration of Independence itself–as an unalienable right the preservation of which is the very purpose of forming governments. That even captured terrorists and enemies are treated with humanity and due process is no idle concern. It is an obligation. It is an instantiation of what distinguishes us from what we are fighting.
It is worth rehearsing why we are holding enemy combatants in the first place. The argument that terrorists and other opposing militias must be fought as a military enemies rather than criminal elements proceeds on three levels, the first two being straightforward and closely related. First, empirically, the justice system simply does not work. As a practical matter, it is incapable on its own of neutralizing more than a tiny fraction of the hordes that oppose us–and that at prohibitive expense. Second, a military enemy is emboldened and becomes more brazen over time if it is not met with overwhelming responsive force and convinced that devastation will surely be the price of further attacks. By themselves, judicial proceedings that target a relative handful of committed (and some suicidal) jihadists do not dissuade them; they have the opposite effect.
The third point is most often missed, though equally compelling. The reluctance to treat terrorists as criminals, far from being caused by disdain for the rigorous demands of criminal justice, is instead a reflection of abiding reverence for our system’s majesty. I have had the privilege of working with many dedicated prosecutors, agents, judges, and defense lawyers who see it as both a point of honor and an epigrammatic truism that our society best displays its enlightenment by affording even to those who would destroy it all the luminous protections of our Constitution. I was once one of them. Nonetheless, if we are to be honest with ourselves, it is a dangerous delusion.
Islamic militants are significantly different both in make-up and goals from run-of-the-mill citizens and immigrants accused of crimes. They are not in it for the money; they desire neither to beat nor cheat the system, but rather to subvert and overthrow it; and they are not about getting an edge in the here and now–their aspirations, however grandiose they may seem to us, are universalist and eternal, such that their pursuit is, for the terrorist, more vital than living to see them attained. They are a formidable foe–that should be plain enough by now. If the way of life we revere is to be preserved, they have to be completely defeated, just like the Nazis, the Communists, and all tyrannically inclined, would-be hegemons. In sum then, the national-security imperatives that they present are simply absent from the overwhelming run of criminal cases.
As a result, while we don’t like to admit this, when we bring them into our criminal-justice system, we have to cut corners–and hope that no one, least of all ourselves, will discern that with the corners we are cutting important principles. Innocence is not so readily presumed when juries–often having been screened for their attitudes about the death penalty–see intense courtroom security around palpably incarcerated defendants. The legally required showing of cause for a search warrant is apt to be loosely construed when agents, prosecutors, and judges know denial of the warrant may mean a massive bombing plot is allowed to proceed. Key government intelligence that is relevant and potentially helpful to the defense–the kind of probative information that would be disclosed in a heartbeat in a normal criminal case–may be redacted, diluted, or outright denied to a terrorist’s counsel, for to disseminate it, especially in wartime, is to educate the enemy at the cost of civilian and military lives.
Since we obdurately declare we are according alleged terrorists the same quality of justice that we would give to the alleged tax cheat, we necessarily cannot carry all of this off without ratcheting down justice for the tax cheat–and everyone else accused of crime. Civilian justice is a contained, zero-sum arrangement. Principles and precedents we create in terrorism cases generally get applied across the board. This, ineluctably, effects a diminution in the rights and remedies of the vast majority of defendants–for the most part, American citizens who in our system are liberally afforded those benefits precisely because we presume them innocent. It sounds nice to say we treat terrorists just like we treat everyone else, but if we really are doing that, everyone else is being treated worse, and that is not the system we aspire to.
Worse still, this state of affairs incongruously redounds to the benefit of the terrorist. Initially, this is because his central aim is to undermine our system, so in a very concrete way he succeeds whenever justice is diminished. Later, as government countermeasures come to appear more oppressive, it is because civil society comes increasingly to blame the government rather than the terrorists. In fact, the terrorists–the lightening rod for all of this–often come perversely to be portrayed, and to some extent perceived, as symbols of embattled libertarian principles, the very ones it is their utopian mission to eradicate. The malignant campaign against the Patriot Act is an example of this dynamic.
A SILVER LINING
For me, the best escape from this downward spiral is forthrightly to concede that the existing civilian judicial system generally does not work for terrorists. By stretching precariously to assimilate them while accommodating national security, the system succeeds only in warping itself. Does that mean indefinite detentions and military tribunals, all at the say-so of executive-branch decision makers forever insulated from judicial review? Well, if the only choice is between that and compromising the judicial system to wage Pyrrhic battles that help the enemy defeat us, that is no choice at all–we must proceed with the detentions and tribunals, withstanding the heat from the pie-in-the-sky libertarians.
But is that our only choice? I don’t think it is, and that is the silver lining potentially to be drawn from the dark cloud of Ghraib.
As we now know, the military’s reaction to this shameful episode has been swift and determined. Upon being alerted, the chain of command instantly and intensively began investigations. Those responsible, who have blighted our reputation and grievously endangered every American captured in combat, will obviously be severely punished. The cataclysm here, of course, is the media’s decision to release the photographs. This has given the scandal outsized dimension and allowed a small cabal of sadists to sully the entirety of our armed forces and the whole of our nation. The media can say all they want that the people have a right to know. The people, however, have known about the abuse allegations for weeks, and it has never been true that the right to know means the right to see every gruesome detail. Indeed, in a criminal trial, in the so-called “search for the truth,” shocking evidence is routinely withheld from juries, not because it is irrelevant but because of its powerful tendency to prejudice reasoned, dispassionate fact-finding–to feed the very type of hysteria that now abounds.
All that, though, is academic. The images are out and we must move forward. Moreover, the world in which we must go forward is not limited to Iraq. We have for many months been holding captured unlawful combatant terrorists at Guantanamo Bay, as well as three other such combatants (including two American citizens) in United States military brigs.
As counsel for some of the combatants argued late last month in the Supreme Court, when the executive branch asserts that it should be permitted to detain indefinitely without judicial review, it is essentially saying, “Trust us.” Trust us that we have captured the right people, that we are treating them humanely, and that we don’t intend to keep them in limbo for a second longer than is necessary to elicit intelligence and prevent them from rejoining the battle against our troops. No, it’s not fair that the barbarity of a few should be of such profound consequence, but anyone who thinks that “trust us” carries the same assurances today as it did two weeks ago is hallucinating.
Ghraib, however, is also an opportunity. It is a chance for the executive branch and Congress to craft some reasonable, well-deliberated safeguards that publicly reaffirm our national commitment to due process of law without materially harming our security or imperiling our armed forces–and to do so before a far worse solution may be imposed by the courts, which institutionally are not well equipped for the task. And by “due process,” I refer not to airy longings for cosmic justice but the strict sense of the term: the process that is due–in this case, to hostile combatants who, for the most part, are foreigners (and thus not endowed with Bill of Rights protections) and terrorists (and thus “unlawful combatants” not entitled to the full protections of the Geneva Conventions). This is a project that would require dedicated and comprehensive thought, but a few ideas come ready to hand.
CUSTOMIZED COURT
For example, the libertarian opposition homes in principally on the current lack of judicial review of detentions. Like most contentions that are long on lofty rhetoric but short on clear-eyed analysis, this argument misses at least two critical points, both relating to death–which, one might have thought, would by definition be anathema to the libertarians.
First, as long as we are in active hostilities, searching judicial proceedings to probe the detentions would not only interrupt interrogations to gather new intelligence but also inform the enemy of our current state of information; further, they would discourage our allies from sharing strategic and tactical intelligence with us for fear that it might be revealed in court. All of these factors would inevitably cause combat casualties to American and allied forces that would not otherwise have happened. Second, our forces are frequently in a position where the options on the battlefield include killing and capturing. The prospect of adversarial judicial proceedings would incentivize our forces to choose killing over the merciful alternative of capture-and-detention, necessarily resulting in more widespread loss of life than would otherwise have happened.
These potential harms, however, do not have to mean there is no place for judicial review. I believe we should create a special national-security court–much like the court established by the Foreign Intelligence Surveillance Act (FISA) that now hears government applications for national-security wiretaps and searches. This court, which like the FISA court would be drawn from the talented national pool of experienced federal judges, would develop an expertise in issues peculiar to this realm: classified information, the Geneva Conventions, the laws and customs of war, etc., and would have jurisdiction over matters related to the detentions and any resulting trials of alleged unlawful combatants.
The Justice Department could similarly form a specialized unit (much like the Terrorism and Violent Crime Section and the Office of Intelligence and Policy Review, which already exist) to be the liaison with the Defense Department as well as the government’s representative before the national-security court. That unit could then report to the Court the fact that an alleged unlawful combatant had been captured and was being detained, and certify both that hostilities were ongoing and that it was in the national-security interest of the United States that the combatant be held. For the first three years, that certification would be unreviewable. As we have seen from the Guantanamo experience, this would be enough time for many of these cases simply to go away–the military has already released and repatriated scores of combatants.
After that point, the court could require the government to make a more informative representation, under seal, of the basis for continuing to hold a particular combatant. Such a proffer, which could be ex parte to the extent necessary to protect classified information, would include a certification that hostilities were still ongoing and a rational basis for concluding both that the prisoner was an enemy combatant and that it remained in the national interest to detain him. After three years, this should not be difficult to do–the military will have done an initial screening at the time of capture (as it does now in any event), it would have had months to interrogate, and it would have developed a rationale for holding this prisoner while it was otherwise winnowing down the number of detainees.
The detainee might have access to counsel at this point and an option (but not a requirement) to present, by affidavit, any competing claim that he was not an unlawful combatant. This could serve as a basis for the court, if appropriate, to ask the government to provide additional, responsive information. As long as hostilities continued in the pertinent theater of combat, however, the court would be required to accept the government’s representation. That representation, though, would be a matter of record and thus preserved for important future purposes, such as: the combatant’s defense, judicial monitoring as the case proceeds, and congressional oversight of the executive branch’s exercise of this detention power. The government, moreover, would be required to notify the court as soon as hostilities had ended in a particular combat theater, and could be made to report back to the court every six months if hostilities were still underway and it was still in the national interest to hold the detainee. Once hostilities were over in the pertinent theater, the government could then be compelled in the national-security court either to prove, at an adversarial proceeding, that continued detention was warranted or to file charges against the detainee.
A NEW JUDICIAL PARADIGM
This, among other things, would serve to blunt the resonant criticism that detainees could be held forever because the “War on Terror” may last, as Justice O’Connor surmised, for as much as 25 or 50 years. While that may be true of the “War on Terror,” it is obviously not true of its component parts, such as the war against the Taliban. Combat in Afghanistan is still ongoing, but it is plainly winding down and with it the necessity to hold captured Taliban combatants. This, undoubtedly, is why the Defense Department has already released so many Guantanamo detainees. The proceedings described above would provide an oversight role for the independent judiciary without interfering in the conduct of the war; set a reasonable hurdle for the government to surmount if it is deemed necessary to hold combatants after hostilities have ended in the theater where they were captured (for example, by showing that there is a basis to believe a captured Taliban combatant is a member of al Qaeda and likely to join the continuing battle in another theater if freed); and prescribe a finite end-point at which it would be time to charge or release.
Thought must also be given to what trials of alleged combatants before the national-security court should look like. I would anticipate that they would more resemble military tribunals than civilian trials, but they would be neither–they would part of the new paradigm. First, they would not be a unilateral executive-branch production; they would be held before an Article III court, albeit a specialized one. This would not only ensure development of the needed judicial expertise but would result in the government having to adapt to but a single body of jurisprudence rather than varying constructions by hundreds of federal judges all over America. It would also foster the salutary effects of legitimately disconnecting unlawful combatants from the justice system that applies to ordinary Americans accused of crimes.
Governing law for such a court would no doubt spur much debate, seeking to strike a due-process standard that balances national-security imperatives against what is essential to ensure the fairness and integrity of judicial proceedings. In my conception, the defendants would be detained until trials and any appeals (to a special national-security appellate court and, ultimately, the U.S. Supreme Court) were concluded. There would be non-jury trials before a national-security judge (or, in capital cases, perhaps a panel of three or five judges). Proceedings would be presumptively public but could be closed when necessary to avoid disclosure of sensitive information. The statute of limitations for terrorist crimes would be eliminated (as it is for murder in many jurisdictions) so that trials could be delayed as necessary to avoid holding them during combat in the pertinent theater.
Indictments would be drawn far more narrowly than they typically are in civilian courts–for the more broadly charges are pled, the more due process implicates discovery. The biggest dilemma civilian trials have posed in the national-security context is the intelligence trove our generous discovery rules provide for the edification of terrorist organizations. A major reason for having a special court would be to plug that hole.
Along those lines, I would also tighten the government’s so-called Brady obligation (i.e., its duty to disclose exculpatory evidence) to something far closer to Brady’s original purpose than the elastic concept it has become in modern practice. Brady, as first promulgated, was a due-process rule that required the government to reveal to the defense any material evidence in its possession that actually demonstrated the defendant was not guilty. In the ensuing decades, the doctrine has been enlarged to embrace much that is neither exculpatory, admissible, nor particularly germane but that might be thought helpful to the defense presentation. That may be a healthy development in the civilian system, in which we willfully prefer the guilty to go free than a single innocent to be wrongfully convicted. It has no place in matters of national security. Thus, I would require the government, in cases before the national-security court, to disclose only (a) the evidence it intends to introduce at trial to prove the charges, and (b) any material, admissible evidence in its possession that actually indicates the defendant is not guilty of the charges.
Many other critical matters would have to be discussed. Most defendants, for example, would not be entitled to the protection of the Fifth Amendment’s self-incrimination clause, and I would not afford it to them to the same degree it protects those to whom it rightfully applies. It is an ingrained principle of civilized societies that persons should not be compelled to be witnesses against themselves, and I would thus not require accused terrorists to testify. It is, however, a fairly recent jurisprudential development that silence can neither be commented on by the prosecution nor considered by the court. In national-security cases, I would personally prefer to see less evolved self-incrimination principles, while admitting that there is a vibrant counterargument to be made on this point.
Similarly, while I would place the burden of proof on the government, I do not believe we owe unlawful combatants (many of whom we could, after all, have killed on the battlefield) a presumption of innocence rebutted only by proof beyond a reasonable doubt. The government should be required to prove its allegations by a preponderance of the evidence, the standard by which our system has long been satisfied to settle civil disputes even when billions of dollars are at stake. Finally, sentencing rules, including capital procedures, would have to be addressed. I would permit the death penalty only if the government convinced a super-majority of the court–all members if we were to use three-judge panels, and at least four if five-judge panels were the rule.
Clearly, there is room for spirited disagreement on all of this, but it surely is a debate worth having. Nothing can cure the horror of sensational depictions of abuse, but if the legacy of Ghraib is that the United States manifestly reaffirms its commitments to human dignity and thoughtful due process, our current shame will have been well worth enduring.
–Andrew C. McCarthy, a former chief assistant U.S. attorney who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is an NRO contributor.