In its eminently fair profile on Wednesday of Judge Michael Chertoff, President George W. Bush’s extraordinarily able nominee to become the second secretary of the Department of Homeland Security, the New York Times touches on two controversial aspects of the Justice Department’s tactical response in the immediate aftermath of the 9/11 attacks: the detentions of material witnesses and of immigration violators. Viewed objectively, these widely misunderstood initiatives were not merely sound; to have taken any other course would have been irresponsible.
REMEMBERING 9/11
Any sensible assessment requires the nigh-impossible: returning oneself to the mindset that had gripped law enforcement by about 10 A.M. on September 11, 2001. The nation had been attacked, and government had been caught flat-footed, having failed from an intelligence standpoint to anticipate, and from a military standpoint to be instantly prepared to deal with, a domestic attack on the continental United States that converted civilian airliners into weapons of mass destruction. Over three years later, having heard about a million times the mantras of “four airplanes” and “19 hijackers,” it is easy to forget that, on that awful morning and the weeks that followed, we didn’t have a clue whether it was only four planes and only 19 hijackers, or whether what we had been subjected to was the full assault or just the first wave.
Unlike the other 300 million stunned Americans, the communities of law enforcement, intelligence, and the military were stunned Americans with a mission: to stop it from happening again. Now.
In less-developed societies where the privileges and immunities we take for granted do not exist, preventive measures may be undertaken in utter disregard for personal rights. Here, thank God, they may not. Even in a crisis marked by crumbling skyscrapers and countless dead (and it is worth recalling that, on the morning of September 11, estimates of the total number killed were larger by a factor of six or seven than the ultimate figure of 3,000), government is obligated to proceed within a framework of deference to civil liberties. It may be aggressive, but it must be ever mindful that it exists to serve the American people, not to rule them.
INVESTIGATIVE IMPERATIVES
A responsible investigation of the September 11 attacks, such as the one that was conducted under the leadership of Mike Chertoff and several other experienced hands, had immediately to do several things. First, given that we did not know whether more attacks were to follow, it was imperative to break down the preparations of the identified 19 hijackers, determine any patterns of behavior, and match such patterns to all available information for indicators of other potential terrorism.
Second, given that it was manifest that the 19 had acted with the support of an international infrastructure that had assisted them in entering the U.S., training for the mission, finance, transportation, lodging and extensive planning, it was crucial to conduct a no-stone-unturned investigation of each of the identified terrorists–to glean whatever was to be gleaned from everyone, complicit or not, from the hijackers’ closest associates to the maid who may have cleaned one of their hotel rooms. Without disruption, the network was certain to strike again. And from that morning forward, the mission was to prevent it from striking again, not to prosecute after the mass-murder of more Americans.
Finally, given that it was plainly al Qaeda that had struck us, and given that we had operated for several years under self-imposed constraints–including a procedural “wall” that had obstructed communications between intelligence and criminal investigators, and had thus obscured the true threat mosaic–it was vital to review and re-analyze everything we thought we already knew about Osama bin Laden’s international network of militant Islamic terror battalions, this time with the walls down.
Here is the problem: Such an investigation would necessarily yield countless leads and torrents of information. Far more of it would raise suspicion than establish ironclad proof of terrorist activity. If we were probing, say, a scheme to defraud or engage in the inside trading of stock, this would present no difficulty: Investigators would bide their time until ironclad proof developed. Terrorism does not provide that luxury–mistakes, temporizing, and failures to act on suspicion can result in the deaths of those it is government’s first mission to secure.
The cycle, moreover, is a vicious one: Act vigorously, and the civil-liberties lobby, in its best hyperbole-mode, limns you as a cabal of jack-booted thugs; miss something by not being vigorous enough, and Monday-morning-quarterbacks, in their best revisionist-mode, portray you as a sleepy incompetent and your unconnected dots as if they had been screaming neon warnings. The only certainty you have is that there will be high-pressure, time-sensitive judgment calls for human beings to make. Mistakes, involving people’s lives and liberties, will be inevitable.
SORTING IT OUT
From that landscape, categories of concern emerged. Some people raised instant red flags. They were those long suspected, wholly apart from any known connection to the events of 9/11, of ties to the terror network. Often, the suspicions were based on evidence that could not be used publicly–information that was classified because it came from sensitive sources whose revelation would endanger both those sources and the lives consequently protected. Almost always, the usable evidence was not enough to satisfy probable cause for arrest on a terrorism charge.
Next were people who appeared to have had contacts with the hijackers. Some of these were intimate contacts that signaled possible culpability in the plot. Some were sure to be happenstance contacts–perhaps a temporary landlord or a travel agent–that were unlikely to stem from complicity, but that might prove significant in stitching together other important events and players. That it was essential to derive information from or about all these sources was obvious–especially with respect to those who might be thought threatening. But mere association with criminals–even terrorists–is not a crime in this country, and, again, the state of information at this stage was not sufficient (and in most instances would probably never be sufficient) to level terrorism charges.
Finally, there was the murkiest of categories: Potential conspirators who had gotten on the government’s radar screen over the years, whose known behavior had raised concerns, but who had not been scrutinized closely enough to make a reasoned judgment. Were they threats? Might they be scheming to kill Americans? Recall, on September 10, 2001, we had known next to nothing about the 19 hijackers. Given that dearth, could anyone have responsibly concluded on September 12, or in the weeks immediately thereafter, that we now knew so much about a plot that had been years in the making that any reasonably suspect person had not been involved?
So the question arose: How does one legally take off the streets people who might pose a lethal threat, or who might possess vital information that could be lost, under circumstances where there is inadequate usable evidence to support an arrest on a terrorism charge? In that crucible, two stratagems surfaced.
MATERIAL-WITNESS ARRESTS
Federal law (and the law of most states) has long provided a process to arrest and detain as “material witnesses” persons who possess information that is germane even to minor crimes. The theory behind this is straightforward. A thriving democratic society is existentially reliant on the rule of law. If there is to be rule of law, the laws must be enforced, and grand juries and courts must be entitled to each person’s evidence–even if that evidence must be compelled by the temporary deprivation of liberty.
In this, the most important investigation in the history of the United States, the Justice Department prudently and sparingly made use of this tool. Several people who were identified as having information that was relevant to the investigation, and as to whom there was reason to believe they might become unavailable if not held, were detained as material witnesses. This detention, it should be stressed, was not a judgment of complicity in the plot. It was a judgment of relevant information about the plot.
A material-witness arrest warrant is not, as has repeatedly been suggested, a legal black hole. Those who were arrested were treated with the same due process that other arrestees (including material witnesses) typically enjoy. People were not arrested on the Justice Department’s whim; in each instance the arrest had to be approved by a U.S. district judge. Each witness was furnished with counsel, at public expense if necessary. Each was brought promptly before the court so that the arrestee could be advised by a detached authority about the basis for the arrest, and so that the court could be informed of, and could monitor, the detention. Although there is reason to question whether arrestees in such circumstances are actually entitled to be apprised of the information presented to the court in support of the arrest warrant, counsel for these arrestees were provided with that information.
Material-witness warrants, moreover, are not a limitless license to detain. Detainees were held for a reasonable and brief period–usually just a few days–that was necessary for their information to be provided. If, in the interim, evidence that they had committed crimes developed (if, for example, it became clear that they had lied to federal agents), they were then charged publicly with those crimes–in the normal course and under the ordinary procedures applicable to arrested defendants.
Much is also made of the purportedly sinister secrecy of these material-witness proceedings, but this too is overblown. Grand-jury proceedings are secret by law. Investigations should be secret for two critical reasons. First, they are not apt to succeed if those being investigated are alerted to all their details. Second, the mere fact of an investigation, and the suspicion it suggests, can unfairly besmirch an innocent person, causing him grievous personal and professional damage. It was absolutely proper, legally and ethically, that these detentions were not publicized. Lest we forget, in the aftermath of 9/11, the Justice Department had every incentive to demonstrate to the public that it was doing something. It was primarily the interest of the witnesses that was served by discretion–as it should have been.
IMMIGRATION ARRESTS
The other strategy employed was reliance on the immigration laws to detain persons of interest. Here, it is necessary to confront some uncomfortable facts.
First, simply stated, much of crime has an ethnic component. Criminal syndicates do not deem themselves bound by Title VII. The Latin Kings tend to be, well, Latin. When we investigate the Mafia, we do not seek its operatives out among the Dutch. In the 1980’s, all those of Irish descent on Manhattan’s West Side were not members of the Westies, but the Westies were indisputably an Irish gang. And militant Islam happens to be universally Islamic and predominantly Arab. While an alphabet’s soup of activist organizations would have us pretend otherwise, that reality is relevant to an investigator’s consideration but comes very far from meaning that ethnicity and religiosity, without more, render one under suspicion for crimes.
A second fact is that the terrorist support network is not a figment of governmental imagination. Militant Islam has been prosecuted repeatedly in the U.S. for over a decade. Numerous people, overwhelmingly Arab and Muslim, have been convicted by impartial juries in fair judicial proceedings for crimes related to terrorism and its facilitation. Others have pled guilty, openly acknowledging these crimes.
A third fact: The support network has tentacles in what is, objectively, an immigrant population. Again, contrary to activist propaganda, this does not mean that entire communities are suspected of criminality. But it does mean that investigations, if they are to be competent, must tread into those communities, and are sure, as night follows day, to encounter people who are of interest (whether as subjects or incidental witnesses) and who are in violation of the immigration laws.
Fact four: Violation of the immigration laws is not a trifle. An alien who has entered the U.S. illegally or has overstayed his lawful warrant is both committing a crime and bereft of legal entitlement to be here. Islamic interest groups and the rest of the immigration lobby have energetically sought to turn these presumptions on their heads. They invert terrorism investigations into a virtual immunity from immigration enforcement, such that if an illegal alien attracts investigative attention because of terrorism, and government is unable to establish that he is complicit in terrorism, government is somehow duty-bound to overlook the immigration violation. Were that so, of course, it would not only make a mockery of the law but would encourage lawlessness. Why would anyone play by the rules? Why would any immigrant honorably comport with the rigorous steps prescribed for lawful status and eventual citizenship if effortless illegality were the norm–placed beyond prosecution by, of all things, the proper attention of criminal investigators.
So yes, as the Times reports, the Justice Department ended up “detaining more than 700 illegal immigrants after the Sept. 11 attacks, most of whom turned out to have no connections to terrorism.” They were detained, however, because they were illegal aliens. Their arrests would have been proper–however unlikely–even if 9/11 had never happened. Nor is there a suggestion that they were not given the due process legally required for suspected immigration violators. What they got for not being provably connected to terrorism was precisely what they were entitled to get: they weren’t prosecuted for terrorism.
Undoubtedly, this rid the country of some percentage–perhaps a tiny one–of people who might have been a threat but could not be proved a threat. Is this insignificant? How could it be? Thousands of lives, untold billions in damages, and a war were among the incalculable costs of only 19 people who shouldn’t have been here in the first place–i.e., less than three percent of 700.
The post-9/11 detentions were lawful, ethical, strategically appropriate, and involved an infinitesimal portion of the Muslim population in the United States. To have conducted the investigation in any other manner would have been grossly irresponsible. Secretary-designate Chertoff’s involvement in that effort is a further credit to his distinguished legacy of service to the United States.
–Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.