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

[Declan McCullagh <declan () well com>]

[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 <shrub () mac com>
To: "Declan McCullagh" <declan () well com>

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" <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
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? 




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