War on Terror in Courtoom Grinds to Political Halt, Like WWII 'Sitzkrieg'
Andrew Cohen
Legal Analyst
Posted:
08/28/10
Following the German onslaught of Poland in September 1939, and before the Nazi war machine invaded Belgium and Holland in May 1940, World War II experienced what contemporary wags called the "Sitzkrieg" (literally, the "sitting war"). The word was a masterful spoof on Germany's vaunted "Blitzkrieg" ("lightning war") -- which would both precede and succeed it-- and it marked a sixth-month period of notable lack of aggression and fighting between the Allied and Axis powers.
Nearly nine years after the Twin Towers fell, America now evidently has entered a lamentable Sitzkrieg phrase of its own in the legal war on terrorism it has waged since September 11, 2001. All across the battle lines -- from the stalled federal civilian trial of 9/11 mastermind Khalid Sheik Mohammed to the stalled military tribunal proceeding for suspected USS Cole bomb planner Abd al-Rahim al-Nashiri to the forestalled closure of the odious detainee prison at Guantanamo Bay, Cuba -- the United States has eschewed the ultra-aggressive approach to trying terror suspects that was endorsed by the Bush Administration. In its place, and especially this past year, we've seen mostly political inertia and inaction -- not unlike what befell the French during the original Sitzkrieg.
The soldiers in the ongoing war of legal precedent and trial tactics-- prosecutors, trial judges, law enforcement professionals and expert witnesses -- are ready to fight -- in courtrooms, before military tribunals, or grand juries. It's the political generals -- in the Senate, in the White House, at the Justice Department, in seats of local and regional power in New York and elsewhere -- who have created the year's phony war by allowing politics to limit our rules of engagement. As a result, the Obama Administration can claim precious few "legal" victories this year in its fight to process and prosecute those terror suspects we've captured or arrested over the past nine years. And those recent judicial decisions that have endorsed current terror law policy aren't exactly the stuff of banner headlines. The law moves slowly. But it shouldn't be moving this slowly. It's been seven years since a sleepy Khalid Sheik Mohammed was rousted out of his bed in Pakistan and water-boarded. It's been at least two years since he confessed to his crimes before a military tribunal.
During the Bush Administration, prosecutors successfully tried and convicted many high-profile terrorists in federal civilian courts. For example, Richard Reid, the so-called "Shoe Bomber" is sitting out a life sentence at Supermax in Florence, Colorado. He was tried in Boston. Zacarias Moussaoui, the so-called "20th hijacker," also has a room of his own at Supermax. He was tried in Virginia. Jose Padilla, the so-called "dirty bomber" was tried and convicted and sentenced in Miami. Sure, these convictions occurred in the same legal atmosphere at the Bush White House that nurtured the infamous torture memos. But they were important milestones, nonetheless, for they represented the only tangible direct interaction between terrorist (defendant) and civilian judge (or juror). And they reminded us all through their success that the men we've come to believe are super-humanly-evil monsters are, indeed, just mortal (and typically quite unimpressive) men.
Alas, as the phony war rolls on toward mid-term election day at the least, the Obama Administration can claim no such record of courtroom success. The sharp pull of grief and rage and revenge which still tugs the power centers of the East Coast -- the same lack of tolerance and foresight that has marked the debate over the creation of a mosque near Ground Zero -- evidently won't allow a federal civiilian trial for Khalid Sheik Mohammed to take place any time soon. If the Justice Department were to push forward against the confessed 9/11 planner, Congress would pull the budget for that in a heartbeat, one government source reminded me last week. Put another way: "It's politics at this point," an unidentified military official told the Washington Post this past week when asked to explain why the al-Nashiri case at Gitmo has been put on hold after all these years.
Another reasonable explanation for the great American Sitzkrieg -- especially with respect to the continuing detention of prisoners at Gitmo -- was offered up Thursday by the New York Times. In a house editorial, the paper's editors noted: "A new report prepared jointly by ProPublica and the National Law Journal showed that the government has lost more than half the cases where Guantánamo prisoners have challenged their detention because they were forcibly interrogated... Even in cases where the government later went back and tried to obtain confessions using 'clean', non-coercive methods, judges are saying those confessions too are tainted by the earlier forcible methods...."
Still, by my count, no American judge or jury has acquitted a high-profile terror defendant in criminal court since 9/11. And the notion that federal jurors in Lower Manhattan would acquit Mohammed or that the city cannot handle terror trials is borderline absurd, given the City's successful history of hosting such trials before 9/11. The main arsenal of our terror laws has not changed much since January 2009, when President Barack Obama promised to close the detainee prison at Gitmo. If anything, the weapons available to federal civilian prosecutors in their cases against Al Qaeda suspects are stronger than ever. Earlier this year, for example, the United States Supreme Court issued a ruling that squarely endorses the government's use of a federal law that broadly makes it a crime to provide "material support" to terrorists or terror organizations. In the meantime, none of the main convictions served up during the Bush era have been overruled.
What has changed, markedly, are the politics of terror law. Partisanship today on Capitol Hill controls the legal battlefield far more than it did five years ago during the Bush regime and far more than it ever has been able to control the scope of the real military battles in Iraq or Afghanistan. The gridlock that generally has befallen Washington in other areas now has gripped hold on this front line as well. Republicans who cheered Bush-era terror trials suddenly have become faint of heart. Democrats who pledged to try to give terror suspects more due process rights and still have them convicted have gone wobbly as well. "Out of sight, out of mind," may be good enough for regular Washington worries. It's no substitute for a policy when it comes to the formal and proper adjudication of criminal claims against terror suspects.
At best, the situation is ironic; as America's political voices have hardened against federal civilian trials for terror suspects, those terror suspects have been able to continue to escape the true justice of a courtroom and a judge or jury. At worst, the phony war of 2010 is a pointless political retreat into inaction following a series of legal victories in court. It's an abject surrender to the forces of fear and convenience and NIMBYism just as a major battle -- United States v. Mohammed -- was set to unfold. Being afraid to lose, instead of planning to win, is what got the French beat in 1940 . It is still, surely, no way to win a war.
Nearly nine years after the Twin Towers fell, America now evidently has entered a lamentable Sitzkrieg phrase of its own in the legal war on terrorism it has waged since September 11, 2001. All across the battle lines -- from the stalled federal civilian trial of 9/11 mastermind Khalid Sheik Mohammed to the stalled military tribunal proceeding for suspected USS Cole bomb planner Abd al-Rahim al-Nashiri to the forestalled closure of the odious detainee prison at Guantanamo Bay, Cuba -- the United States has eschewed the ultra-aggressive approach to trying terror suspects that was endorsed by the Bush Administration. In its place, and especially this past year, we've seen mostly political inertia and inaction -- not unlike what befell the French during the original Sitzkrieg.
The soldiers in the ongoing war of legal precedent and trial tactics-- prosecutors, trial judges, law enforcement professionals and expert witnesses -- are ready to fight -- in courtrooms, before military tribunals, or grand juries. It's the political generals -- in the Senate, in the White House, at the Justice Department, in seats of local and regional power in New York and elsewhere -- who have created the year's phony war by allowing politics to limit our rules of engagement. As a result, the Obama Administration can claim precious few "legal" victories this year in its fight to process and prosecute those terror suspects we've captured or arrested over the past nine years. And those recent judicial decisions that have endorsed current terror law policy aren't exactly the stuff of banner headlines. The law moves slowly. But it shouldn't be moving this slowly. It's been seven years since a sleepy Khalid Sheik Mohammed was rousted out of his bed in Pakistan and water-boarded. It's been at least two years since he confessed to his crimes before a military tribunal.
During the Bush Administration, prosecutors successfully tried and convicted many high-profile terrorists in federal civilian courts. For example, Richard Reid, the so-called "Shoe Bomber" is sitting out a life sentence at Supermax in Florence, Colorado. He was tried in Boston. Zacarias Moussaoui, the so-called "20th hijacker," also has a room of his own at Supermax. He was tried in Virginia. Jose Padilla, the so-called "dirty bomber" was tried and convicted and sentenced in Miami. Sure, these convictions occurred in the same legal atmosphere at the Bush White House that nurtured the infamous torture memos. But they were important milestones, nonetheless, for they represented the only tangible direct interaction between terrorist (defendant) and civilian judge (or juror). And they reminded us all through their success that the men we've come to believe are super-humanly-evil monsters are, indeed, just mortal (and typically quite unimpressive) men.
Alas, as the phony war rolls on toward mid-term election day at the least, the Obama Administration can claim no such record of courtroom success. The sharp pull of grief and rage and revenge which still tugs the power centers of the East Coast -- the same lack of tolerance and foresight that has marked the debate over the creation of a mosque near Ground Zero -- evidently won't allow a federal civiilian trial for Khalid Sheik Mohammed to take place any time soon. If the Justice Department were to push forward against the confessed 9/11 planner, Congress would pull the budget for that in a heartbeat, one government source reminded me last week. Put another way: "It's politics at this point," an unidentified military official told the Washington Post this past week when asked to explain why the al-Nashiri case at Gitmo has been put on hold after all these years.
Another reasonable explanation for the great American Sitzkrieg -- especially with respect to the continuing detention of prisoners at Gitmo -- was offered up Thursday by the New York Times. In a house editorial, the paper's editors noted: "A new report prepared jointly by ProPublica and the National Law Journal showed that the government has lost more than half the cases where Guantánamo prisoners have challenged their detention because they were forcibly interrogated... Even in cases where the government later went back and tried to obtain confessions using 'clean', non-coercive methods, judges are saying those confessions too are tainted by the earlier forcible methods...."
Still, by my count, no American judge or jury has acquitted a high-profile terror defendant in criminal court since 9/11. And the notion that federal jurors in Lower Manhattan would acquit Mohammed or that the city cannot handle terror trials is borderline absurd, given the City's successful history of hosting such trials before 9/11. The main arsenal of our terror laws has not changed much since January 2009, when President Barack Obama promised to close the detainee prison at Gitmo. If anything, the weapons available to federal civilian prosecutors in their cases against Al Qaeda suspects are stronger than ever. Earlier this year, for example, the United States Supreme Court issued a ruling that squarely endorses the government's use of a federal law that broadly makes it a crime to provide "material support" to terrorists or terror organizations. In the meantime, none of the main convictions served up during the Bush era have been overruled.
What has changed, markedly, are the politics of terror law. Partisanship today on Capitol Hill controls the legal battlefield far more than it did five years ago during the Bush regime and far more than it ever has been able to control the scope of the real military battles in Iraq or Afghanistan. The gridlock that generally has befallen Washington in other areas now has gripped hold on this front line as well. Republicans who cheered Bush-era terror trials suddenly have become faint of heart. Democrats who pledged to try to give terror suspects more due process rights and still have them convicted have gone wobbly as well. "Out of sight, out of mind," may be good enough for regular Washington worries. It's no substitute for a policy when it comes to the formal and proper adjudication of criminal claims against terror suspects.
At best, the situation is ironic; as America's political voices have hardened against federal civilian trials for terror suspects, those terror suspects have been able to continue to escape the true justice of a courtroom and a judge or jury. At worst, the phony war of 2010 is a pointless political retreat into inaction following a series of legal victories in court. It's an abject surrender to the forces of fear and convenience and NIMBYism just as a major battle -- United States v. Mohammed -- was set to unfold. Being afraid to lose, instead of planning to win, is what got the French beat in 1940 . It is still, surely, no way to win a war.