FC: UCLA's Mark Kleiman on military tribunals, political tactics

[Declan McCullagh <declan () well com>]

[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" <kleiman () ucla edu>
   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

   alternative   procedural  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

   to   its   enemies,  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?

---



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