2011 James Madison Award Presentation - Prepared Remarks
New York City Federalist Society 25th Anniversary Dinner
April 25, 2011Andrew C. McCarthy, Michael B. Mukasey
On April 25, 2011, the New York City Lawyers Chapter hosted its 25th Anniversary Dinner and presented the 2011 James Madison Award to former U.S. Attorney General Michael Mukasey. Andrew C. McCarthy, a Senior Fellow at the National Review Institute and Co-Chair of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies, gave the introduction and presented the award. The following are their prepared remarks.
ANDREW McCARTHY: It seems like only yesterday. But it was actually over sixteen years ago, in the heart of a great, thriving metropolis, that a distinguished judge – who, in the march of time, would become every bit as renowned nationally as he was among the legal community – impaneled a jury and began one of the most famous criminal trials in American history.
The case had everything: ornery prosecutors, colorful defense lawyers, and a lead defendant famous around the world.
Month after month the trial went on, grabbing hold of our national attention. In fact, it seems as if each day’s testimony still echoes today, so much did it speak to the issues that continue to obsess 21st century America.
Unfortunately, I can’t tell you very much about the O.J. Simpson case.
You see, during those very same nine months, from January into October 1995, I was 3000 miles across the country trying a little case in a courtroom not far from where we are gathered this evening.
So he may be famous, but I wouldn’t know Judge Ito from Judge Judy.
And I’m afraid our case didn’t have the pizzazz of race and sex and drugs and rock’n’roll.
We were just dealing with more mundane matters – like whether Western civilization would survive.
Plus – and I know this is a small, petty point – but our defendants actually got convicted. You’ll never read any news stories about how the Blind Sheikh and his cell are out searching for the “real” bombers – though it’s entirely possible you could hear about one of them proclaiming that “if it doesn’t fit, you must blow it up.”
Think for a moment about all that has happened to our country in the almost two decades after the bombing of the World Trade Center on February 26, 1993.
It seems remarkable now how easily we were distracted from radical Islam’s declaration of war against us, from the jihadist demonstration of a will to hit us – to mass-murder our citizens in our homeland, in the heart of our financial district, in the places where great questions of policy are decided, and even in the places where ordinary American lives are lived.
But the truth is, we were caught flat-footed at the time. It is an easy thing, a very human thing, to set your mind to other things when the challenge staring you in the eye is too enormous to contemplate. And in the early 1990s, radical Islam was just that kind of challenge: a national security threat … in our midst and seeking to destroy us.
The Powers That Be would thrust the threat onto our criminal justice system because that is what we do when the stakes are high and we can’t figure out what else to do.
But this threat – terror in the service tyranny – defied the basic, time-honored assumptions of criminal justice.
It was a threat not given to the familiar criminal motivations; a threat that sought not to beat the system, but to destroy the system; and a threat for which our legal architecture was woefully unprepared.
And when I say that, I’m not just talking about whether due process norms designed for Americans presumed innocent are a good fit for enemy combatants seeking to supplant the Constitution that guarantees those norms.
The fact is that, 18 years ago, we even lacked laws designed to address the basic tactics of international terrorism. Unlike other nations, we had not in modern times experienced a systematic onslaught by foreign terrorists motivated by a totalitarian ideology.
It turns out, though, that the United States is not only exceptional. It is exceptionally lucky. Throughout our history, it is at times of great peril, that the best of our nation comes to the fore to answer the challenge.And when it came time to answer this challenge, we had Michael Mukasey.
With courage, patriotism, and his searing intellect, Judge Mukasey has served his community, his City, and his nation with rare distinction.
I know this is the part where I am supposed to tell you about Judge Mukasey’s humble beginnings in the Bronx. But let’s face it, I’m from the Bronx, too, and there’s really nothing very humble about us on that score … so why pretend?
Suffice it to say that, after graduating from Columbia College and Yale law school, Michael Mukasey had a stellar career as a prosecutor and a private attorney – such that he was already a highly respected member of our profession when President Reagan named him in 1988 to a seat on the federal bench in the Sovereign District – I’m sorry, of course, I mean the Southern District of New York.
In very short order, Judge Mukasey developed a reputation among lawyers across the spectrum – civil practitioners, defense lawyers, and prosecutors – of being the very model of a good judge: fairness, rectitude, hard work, good judgment, civility, and devotion to the rule of law – meaning a purpose to apply the law faithfully and with a judiciousness that fit the case at hand.
It would be impossible to exaggerate how essential it was to have such a jurist in the early 1990s.Yes, we’ve had a robust national debate for a decade now about how best to deal with our jihadist enemies – enemies whose every waking moment is still consumed with thoughts of killing Americans.
But back in 1993, back when the same jihadist cell that had just attacked the twin towers plotted an even more ambitious bombing campaign against New York City landmarks, nobody was talking about “enemy combatants” and “military commissions.” Back then, the only war was the one our enemies were fighting against us. The defense of our nation was left to the courts.
In particular, it was left to judges, who would have to figure out how to balance the need to safeguard our security against their principal obligation – the duty to assure that even those charged with heinous offenses receive the protections to which the law entitles them.
A few years later, counterterrorism law would be overhauled. New crimes and protocols would be prescribed by Congress to address the mounting threat directly. But that couldn’t be done in 1993. We had to make do with the legal arsenal available to us – an arsenal that had not anticipated the jihad.
We had to grapple with the elusive questions of when protected speech ends and actionable incitement begins; of how far freedom of conscience translates into freedom to practice one’s religion – particularly when the “practices” in question violate American law and endanger innocent lives.
We had to answer the question of whether, and to what extent, the nation’s defense secrets can remain secret when intelligence – including the methods and sources for gathering intelligence – becomes relevant to the defense of accused terrorists.
We had to determine how much of a believer’s expressed beliefs, and even his reading material, should be admitted as evidence to show his motive and intent.
Perhaps most controversially at the time, we had to determine whether a civil war era statute targeting sedition – an explosive concept if ever there was one in American law – was a fit vehicle for addressing modern terrorism.
Those questions have been answered now. And we’re privileged to be in this room with the judges who answered them. And I speak not only of Judge Mukasey, for – as he’d want me to point out to you – we are also honored to have here with us this evening Judge Kevin Thomas Duffy, who of course tried the first World Trade Center bombing case.
I was privileged to watch as Judge Mukasey answered these tough questions. Not just answered them, but answered them with painstaking care and searching analysis.
Answered them in a way that created the blueprint for all the terrorism trials that came after. And, just as important, provided a roadmap for the remaking of national security law that has equipped our courts to deal effectively with a threat that has become even more ferocious, and that will be with us for decades to come.
Of course, Judge Mukasey’s service was far from done. When the ferocity of radical Islam made itself most profoundly felt in the atrocious 9/11 attacks, he was then the chief judge of a district under enemy siege. As such, he labored to make sure of two things. First, that the defiant American spirit would be exemplified by our court, which would remain open and would function despite the effort to destroy us – an effort that had shut down much of a stunned lower Manhattan. Second, that our court – in its proudest tradition – would play the role that it has always played, and that it must play in any national security strategy designed to prevent terrorist attacks from happening.
As a result of those two priorities, Chief Judge Mukasey and other judges of our court made themselves available 24/7. That meant the court’s essential processes were available to investigators frantically trying to prevent a second wave of attacks. Equally important, these judges presided in a way that guaranteed respect for due process – meaning intelligence could be collected rapidly, and, if used as evidence, it would hold up against any future challenges.
I had a front-row seat to all of this. So like everyone in this room, I couldn’t have been more delighted that morning in 2007 when President Bush took to the Rose Garden to announce that Michael Mukasey was his nominee to become the next attorney general of the United States.
I didn’t even much mind that coverage of the President’s announcement was briefly interrupted by the news that some guy named OJ Simpson had just been arrested in Las Vegas. Timing, we knew by then, is everything.
And because timing is everything, it was ripe for Judge Mukasey’s tenure at Main Justice. Even before his prestige and his steady hand righted the Justice Department’s wobbly ship, Judge Mukasey gave Washington a lesson in scruples and national security sense.
An effort was made to politicize his confirmation hearings, to pressure the nominee into condemning CIA interrogators. But Mukasey the judge knew that no one gets convicted before the evidence is in. And Mukasey the national security thinker knew that no nation gets protected if the agents asked to do the protecting are led to believe they’ll be prosecuted for doing their jobs. The judge wouldn’t budge. On the matter of interrogations, as on other questions raised in the wringer that confirmation hearings have become, Judge Mukasey was eloquent and persuasive. And how surprising is it that history, again, has borne him out?
Michael Mukasey has selflessly served this nation, with unflinching support from his beloved Susan and his children. He was a trailblazing jurist. He was an attorney general with gravitas and a dedication to the Justice Department’s highest traditions when the nation most needed one. Now, back in private practice, he not only remains a credit to the bar but also the nation’s most eminent thinker on the crossroads between the law and the defense of our nation.
And it’s not often you get to say this about someone from whom you have learned so much, but I’m proudest to say he is also my friend.
Ladies and gentlemen, the honorable Michael Mukasey.
MICHAEL MUKASEY: Many thanks to my good friend Andy McCarthy for those kind remarks – and it is obvious from those remarks that he is a good friend. Actually, there is no one I can think of who is better suited to present an award named after Jimmy Madison than Andy McCarthy. Those of you who have read his works and read his columns and posts regularly know what I mean. Those of you who haven’t, should, and I envy you in advance for what you are about to experience.
And of course, thanks as well to the New York Chapter of The Federalist Society for this singular honor. When I think about the others who have received it I think they are possibly the only people who would be more surprised than I am to see my name join the list.
Before I get any further in these remarks I should thank as well the people who have made possible this and everything else worthwhile I have done in the last few decades – my wife, Susan, who has put up not only with me but also with the rigors that go with an occasionally public life, and of course my children, who had the experience of putting up with the reduced circumstances that go with public life while they were still under our roof, only to see the circumstances – and the size of the roof – increase when I returned to private life after they went out on their own – what a bummer for them.
The French philosopher Pascal wrote that the first rule of morality is to think clearly, and I believe there is no more fitting way for me to try to thank the Federalist Society as the source, James Madison as the namesake and Andy McCarthy as the presenter of this award than to try to do some clear thinking about the smog that now passes for our politics, in particular when it comes to the subject of how a country that has dealt successfully in the last century with Fascism and with Communism is now going about trying to deal with the “ism” of the current century – Islamism – both at home and abroad.
Actually, as a matter of history, Islamism, insofar as it holds this country in a weird combination of awe and contempt, has been incubating for about as long as we have known about the other two isms that we successfully conquered in the last century.
As a movement distinct from the religion of Islam itself, Islamism traces back to Egypt in the 1920’s when the loosely organized Muslim Brotherhood was established by a man named Hassan al-Banna, a primary school teacher. Al-Banna founded the Muslim Brotherhood as a reaction to the modernizing influence of Kemal Ataturk, who dismantled the shell of what was left of the Muslim caliphate in Turkey, banned fez’s and headscarves, and dragged his country by the lapels – and it had to be lapels because he wanted men wearing suits not robes – into the 20th century.
Al-Banna’s principal disciple was also an educator -- a bureaucrat in the education department of the Egyptian government named Sayyid Qutb, who caused enough trouble in Egypt to get himself awarded a traveling fellowship in 1948, the year al-Banna was killed in violence generated by the Muslim Brotherhood, that fellowship was intended to have the benign effect of getting him out of the country.
Regrettably for us, he chose to travel to the United States, and in particular to Greeley, Colorado. Now I think it would be hard to imagine a more inoffensive place than post-World-War-II Greeley Colorado, but for a prudish man like Sayid Qutb it was Sodom and Gomorrah. He hated everything he saw – American haircuts, enthusiasm for sports, jazz, what he called the “animal-like mixing of the sexes” even in church. His conclusion was that Americans were, as he put it, “numb to faith in art, faith in religion, and faith in spiritual values altogether,” and that Muslims must regard, as he put it, “the white man, whether European or American . . . [as] our first enemy. ”He said Muslims must make this “the cornerstone of our foreign policy and national education. ”
Qutb went back to Egypt, quit the civil service, and joined Hassan al-Banna’s Muslim Brotherhood.
Qutb and the Muslim Brotherhood continued to agitate for a return to fundamentalist Islam. They welcomed Gamal Abdel Nasser’s coup against the corrupt monarchy in 1952, but then became disillusioned with Nasser when he failed to institute Sharia law or even ban alcohol. Qutb opposed Nasser, and was arrested and tortured. However, he continued to write and agitate for Islam and against western civilization, particularly against Jews, who he blamed for atheistic materialism and said were to be considered the worst enemies of Muslims. He was released for a time, but eventually was re-arrested, tried for conspiracy against the government and hanged in 1966.
Many members of the Brotherhood fled to Saudi Arabia, where they found refuge and ideological sustenance. Qutb’s brother was among those who fled and taught the doctrine in Saudi Arabia. Among his students were Ayman al-Zawahiri, an Egyptian who would become a leading Al Qaeda ideologist, and a then obscure Osama Bin Laden, the pampered child of one of the richest construction families in the country. And the rest, as they say is history.
That history did not come to these shores on September 11, 2001, or even on February 26, 1993, when a truck bomb went off in the basement of the World Trade Center, killing six, wounding hundreds, and causing millions of dollars in damage in what would eventually come to be known as the first World Trade Center bombing. Rather, it came at the latest in the 1980’s, when a couple of FBI agents spotted a group of men taking what looked like particularly aggressive target practice at a shooting range in Calverton, Long Island. When they approached they were accused of what we now call racial profiling and backed off. In November 1990, one of those men, El-Sayid Nosair, would assassinate a right-wing Israeli politician named Meir Kahane, in the ballroom of a Manhattan hotel. The case was treated by the Manhattan DA Robert Morgenthau as the lone act of a lone gunman.
When the 1993 World Trade Center bombers demanded freeing Nosair from jail, it became apparent that the Kahane assassination was not the lone act of a lone gunman. Authorities reviewed the amateur video of Kahane’s speech the night he was killed and discovered that one of those 1993 bombers had been in the hall when Kahane was shot in 1990, and further investigation disclosed that another was driving what was supposed to be Nosair’s get-away vehicle.
The man who served as the spiritual advisor to Nosair and the 1993 trade center bombers, Omar Abdel Rahman, the so-called Blind Sheikh, along with Nosair and several others, were tried before me and convicted for participating in a conspiracy to conduct a war of urban terror against this country that included the Kahane murder, the first trade center bombing, and a plot to blow up other landmarks around New York, and to assassinate Hosni Mubarak when he visited the United Nations. The list of unindicted co-conspirators in that case included Osama Bin Laden, the pampered rich kid who had studied at the knee of Sayid Qutb’s brother in Saudi Arabia.
At the time, all of this was treated as a series of crimes – unconventional crimes, maybe, but merely crimes. In 1996 and again in 1998, Osama Bin Laden declared that he and his cohorts were at war with the United States, a declaration that got little serious attention.
In 1998, our embassies in Nairobi, Kenya and Dar Es Salaam, Tanzania, were almost simultaneously bombed, and again the criminal law was invoked with the usual mantra of bring them to justice, this time in an indictment that named Bin Laden as a defendant.
Apparently he was unimpressed, or at least undeterred, because in 2000 his group, Al Qaeda, bombed the USS Cole in Aden, Yemen, killing 16 U-S sailors, and would have carried out the bombing of another naval vessel, the USS The Sullivans, but for the fact that the barge carrying the explosives was over-loaded and sank.
And then of course came September 11, 2001, and to the call bring them to justice was added the call bring justice to them, and we were told that we were at war, which was more than 50 years after Sayid Qutb determined that Islamists would have to make war on us, about 15 years after Islamists had made it clear that they were training for war with us, and five years after Osama Bin Laden made it official with a declaration of war.
And yet, here we are, going on ten years after September 11, 2001, which I think was felt at the time to be at least a moment of singular national clarity, thrashing around like someone lost in heavy underbrush, seeking a way out and straying from the way, tearing the thorns and being torn by them, still struggling with such basic questions as who is our enemy, what kind of conflict are we in, what do we do with the people we capture who are fighting us, what does winning mean?
How come all of this still seems so much up for grabs?
Well, for one thing, we are handicapped in no small measure by the apparent religious motivation underlying the essentially political goals of our opponents. Those goals involve the recreation of the Islamic caliphate and the imposition of Sharia law over as broad a swath of the world as possible. This is a profoundly anti-democratic movement at its core, regarding the whole idea of man-made law as anathema.
As a nation we are historically uncomfortable with drawing religious distinctions among ourselves, and between ourselves and others. Even before the nation was established our colonies were settled by people fleeing religious persecution. The tendency toward not asking questions about people’s religion during debate on public issues runs historically deep. I don’t mean to presume to channel James Madison, but I think he would be familiar with that discomfort.
Add to that the experience we had relatively recently during World War II when we interned thousands of Japanese under circumstances that i think are pretty well accepted now as a national shame. That is something we have been careful not to repeat.
And so even though if FDR had stood before Congress on December 8, 1941, and said that the peaceful Shinto religion had been kidnapped by extremists he likely would have been hooted off the podium, President Bush could and did say that about Islam repeatedly in the days following 9/11, could tell it to Congress with an Imam in camera range, and have what he was saying taken as accepted wisdom.
When we want to avoid something uncomfortable, and candor apparently won’t do, our language gives us away. And so even after 9/11 although we say we are at war, it is a war on . . . Terror, or terrorism, which gives rise to quibbles to this very day from people who argue that terror is a state of mind and terrorism is a means and you can’t have a war on a state of mind or a means.
Of course, everyone with a pulse understands at least in general terms what is going on, but we leave the discussion open to people who wish to quibble about what it is we are at war with, and so the discussion at times drifts off into absurdity. If such people were entirely at the periphery then I suppose it would not matter much, but right now I must tell you that such people are right at the core of where there should be clarity. One of them in fact is the President’s assistant for national security, who actually got up before an audience at the Center for Strategic Studies – this is one of our officially designated deep thinkers talking to other deep thinkers – and ridiculed the idea of a war on terrorism or on terror, saying that you can’t have a war on a means or a state of mind.
This called to my mind a zany British review that ran on Broadway before many of you were born called “beyond the fringe,” and in particular one sketch from that review involving an official police spokesman trying to explain to the press why Scotland Yard had not yet solved the Great Train Robbery of 1963, and he said that they had at first been confused by the name Great Train Robbery, but after investigation they had found that trains were quite large, nearly impossible to conceal, that they ran on rails, and generally were hard to make off with. “so you see,” he said, “Great Train Robbery is a misnomer; there is no question here of a missing train; we have the train; it’s the contents of the train that are missing. ”Now that review was a farce; but John Brennan, the President’s national security expert, did not consider his remarks to the Center For Strategic Studies a farce.
To our historical aversion to subjects religious, and our aversion to repeating the World War II experience with the Japanese, we must add the political delicacy of the times we live in. So it is now I think an accepted theorem that no good can be accomplished by force. It was not always so. And so not only did FDR not get up before Congress and say that the peaceful Shinto religion had been kidnapped by extremists, but when the war was over, during the occupation, General Douglas MacArthur, on orders from President Truman – and this was one time when Macarthur had no difficulty following President Truman’s orders – made the Japanese change the way the Shinto religion was practiced, and MacArthur, to his great credit, made the medicine go down relatively easily. But make no mistake; it was accomplished by force.
Lest anyone think that I hold the current administration alone responsible for the inability to express simple clarity, I should mention the contribution to the English language made by the administration that I served in, when effective interrogation procedures developed by the CIA and duly submitted for approval to the Justice Department, were analyzed by lawyers in the department’s Office of Legal Counsel down to a mosquito’s eyelash; that program was referred to – in one of the most absurd marketing campaigns since new coke – as “enhanced interrogation techniques. ”
As those of you who have read the memos of the Office of Legal Counsel analyzing that program are aware, or read about them, those interrogation techniques were harsh; they were coercive. I can tell you also that using them required approval at the highest levels of the CIA, and that they were rarely used – the most coercive of them, waterboarding, was used on three people – and those techniques were enormously effective. There are many people alive today who would not be alive if they had not been used.
And oh yes, they were, in the estimation of the lawyers in the Office of Legal Counsel, and also in my estimation after I reviewed the then classified memos and related material, perfectly lawful under the standards that applied from 2001 to 2003, after which they were no longer used. But when you come up with a term like “enhanced interrogation techniques,” to try to make it sound like you are talking about something innocuous, something that sounds like an improved toothpaste or washday product, the unmistakable impression is that you must be covering up something too horrible to describe, or at the very least that you are trying to sanitize something that cannot be cleansed, that you are covering up your true meaning – to bring it up to date, sort of like saying you are running a temporary kinetic exercise, or a foreign contingency operation.
And what are we to do with the folks we capture – who have taken up arms against us. We still struggle and strain with what to call them. In 1943, two groups of German would-be saboteurs landed off Long Island and Florida, and were rounded up, tried before a military commission sitting in Washington, and executed – all within three months, and with no right of appeal, although the procedure itself was reviewed by the Supreme Court and found lawful – in an opinion issued after they were already dead.
They were called unlawful enemy combatants because that was the term attached to people who fought out of uniform, or targeted civilians, or failed to carry their arms openly or did not follow a recognized chain of command. They gave up the protection due soldiers under international law by taking off their uniforms. In fact, it is obvious they knew very well what wearing a uniform versus not wearing one meant, because they landed in uniform and then changed on the beach.
The only explanation for that hazardous procedure is that if they were caught during the landing, which is the most vulnerable part of the operation, they could have claimed the protection due prisoners of war because they hadn’t yet acted against any civilian target. But they gave up that protection, and as a consequence were called unlawful enemy combatants.
Fast forward to 2001, and we started referring to the terrorists who violate all the rules by not wearing uniforms, not following a regular chain of command, not carrying their arms openly and targeting civilians – we referred to them as unlawful enemy combatants, a designation well recognized under the law but which meant that they did not have the rights of prisoners of war, and certainly did not have the rights of ordinary criminal defendants.
Yet now, because we shrink in public discourse from any harsh imagery, even that has been softened to unprivileged belligerents, although what privileges are in fact going to be withheld remains a mystery.
What unlawful combatant status might have meant at another time is that some dangerous people would simply be locked up, and others who had committed war crimes would get the benefit of a trial in which the underlying facts would be reviewed – fairly but without such niceties as the hearsay rule – and a judgment rendered.
That I think was the loosely formulated plan of the Bush Administration at the outset. I say loosely formulated because however detailed were the plans that were eventually drawn for military commissions, first by presidential decree and then, when the Supreme Court ruled that out even though the German saboteurs had been tried on that basis, by act of congress, the plans were drawn without much clear and explicit thought as to why we have trials in the first place.
At the close of World War II the allies convened a military tribunal at Nuremberg, and another in Tokyo, at least in part to create a record of what the Germans and the Japanese had done so there could be no future denial. There is hardly a need to create such a record today, when the underlying deeds are well documented. And so to the extent that we occasionally hear parallels drawn between our own current situation and the Nuremberg tribunals, I think those parallels are seriously misplaced.
There are other ingredients that make up the haze surrounding the subject of what we do with the folks we catch. The circumstances in which we catch people on the battlefield make it impossible to bring to trial in civilian courts those who might be charged with committing war crimes, even if we decided we wanted to give unprivileged belligerents the bonus of a civilian trial as a reward for violating all the rules developed over the last several hundred years to civilize the rules of combat.
We have assigned this responsibility to the military by statute, in the military commissions act, but I would suggest to you that the results so far of that process have not been encouraging, in part because this is not what the military is for; it is not their mandate. The armed forces are there to win wars, not to run a justice system parallel to the civilian one. Although we have used military commissions at various times in our history, from the Revolutionary War through and including World War II, they have been used on an episodic and not an ongoing basis. The rules may be there, but the larger institution, including even such a simple thing as a career track, isn’t.
And I don’t mean it simply as a criticism to say that the results have been disappointing. That is entirely natural given the circumstances, which include that the country seems to regard the whole enterprise as simply an unpleasant inconvenience, about which the less said the better. Again, the results are not promising. For example, the sentence imposed on Osama Bin Laden’s driver, who was arrested in possession of rockets that were to be used against U-S troops, who was responsible for the safety of the leader of Al Qaeda, and who was therefore obviously a well trusted confederate close to the central leadership of that organization, was less than seven years, which amounted to time served. It appeared that the military judge in the case simply could not understand the rudiments of conspiracy law that hold responsible even those not directly involved in unlawful activity so long as that activity is within the reach of the agreement in which they do participate. And so Osama Bin Laden’s driver was regarded as simply a driver, whose light sentencing included the good wishes of the military judge.
It seems very much open to question whether we can continue to use military commissions on a long term basis, even if there is on the civilian side the political will to use them on a long term basis, which itself is open to doubt
And there are others as to whom we do not have evidence of war crimes but who are nonetheless too dangerous to release, even assuming that there is a jurisdiction to which they might be sent. Common sense might dictate that they be detained until we can say with some assurance that they are no longer a threat to us. But here we run up against simple denial – the claim in some quarters that we cannot, that we do not, simply detain people without trial because they are dangerous; after all, we are a society of laws.
Well, in point of fact, we do do it and have been doing it for some time. We detain people who are a danger to themselves or to others after a civil commitment proceeding that determines nothing other than that dangerousness; we detain pregnant women who use drugs so that they do not harm their unborn children; we detain sex offenders even after they have completed their sentences if the circumstances suggest that recidivism is likely. Are there safeguards for the person detained in each of those situations?Of course there are, but we can’t have a discussion of what safeguards might be appropriate for would-be terrorists until we first say straight out that we ought to be able to detain them.
And while we are on that subject we might wish to consider that in fact the greatest value in just about any newly captured detainee, regardless of where he is caught, isn’t his status as a defendant, but rather his potential as an intelligence source. We should put in place properly trained and effective interrogators to step in quickly, determine who is likely to have valuable information, and get it.
The alternative is that either we turn them over to foreign governments that havefewer qualms and less scruple about how to deal with detainees, and get distorted intelligence if any, or that we kill them with drones, and in the process deny ourselves completely whatever intelligence we might otherwise get.
It was not always this way. During World War II, we kept tens, perhaps hundreds of thousands of them, captive in the United States. Not one was permitted to file a habeas corpus petition in a federal court, and even when one did file such a petition from a camp in a zone occupied abroad by U-S troops, Justice Jackson made short work of the idea that one captured in wartime could hale his captors into court even as they were occupied in defending the country.
Ah, we are told, but World War II was finite. Yes, we knew that in 1945, when it was over, but I can assure you that when the Germans marched into Poland in 1939 and when the Japanese began their forcible expansion across East Asia even earlier, they did not scatter leaflets proclaiming, “don’t worry, all of this is going to end in 1945. ”
Wholly apart from a history that makes us reluctant to confront a religiously motivated enemy, and the delicacy that occasionally goes by the code term political correctness, it appears that for many the administration of what we know as the law involves not the common sense application of neutral principles across the board, with the psychic reward coming after the fact if it comes at all, but rather the minute by minute consideration of how any particular step makes us feel, or, a closely related question, how we think it makes us look.
Here you need go no further than to consider the statements surrounding the announcement in November 2009 that those accused of organizing the September 11, 2001 attacks on the United States would be tried in a federal court in Manhattan, and the statements surrounding the announcement in April of this year that those same accused would be tried before a military commission at Guantanamo Bay – replete as those statements were with references to the proceeding as a centerpiece in the careers of those involved, references to confidence in our federal courts, to the 200-year history of those courts in successful administration of justice, contrasting references to the courts as “tools” in the fight against terrorism, which makes you wonder whether we can have any faith at all in their 200-year history, references to the security of our prison system, even references to the certainty of a conviction and a capital verdict, which of course made a complete hash of a lot of the other rhetoric on display at the time, references to catering to the perceived desires of the families of the victims. One need only look at those statements to realize that reality and law as it exists in the real world were not at the top of the list of considerations on either occasion.
For starters administering a legal system is not an exercise in self-fulfillment, and courts are not anybody’s tool, because if they are what they produce isn’t justice. So far as whether federal courts have an honorable history and can in fact administer justice – and administer it good and hard when necessary – and whether federal prisons can hold those convicted, those matters were never in doubt before or after either of these announcements was made. It may make us look good and feel good to defend what is not in doubt, and to attack what is not at issue, but it hardly contributes clarity to the discussion.
And so far as victims’ families are concerned, they have some rights guaranteed by federal law, including the right to be heard at sentence in connection with cases tried in federal court, and there is no reason why they could not be similarly heard at the analogous time before a military commission. But we have a legal system in which all of us, including victims and their families give the government a monopoly on the use of force, and give up the right to determine what happens to an accused, in return for the government’s guarantee to use that force to protect us. That is called the social contract. There are countries where that is not entirely true, where the victim’s family is given the right to determine whether there will be punishment, and indeed to administer the punishment themselves. This country is not among them.
And what about the question of what victory will look like?We are told repeatedly that this will not end with a signing ceremony on the deck of the Battleship Missouri. Well, gee, that’s a valuable insight, but it has absolutely no implications for how strongly we defend ourselves and our way of life; it is not an excuse to throw up our hands
In a target-rich political environment like the one we live in, it doesn’t take much in the way ofcourage to stand up here and skip rocks off several of those targets. But how does one really bring clarity to the discussion.
I suggest we start by identifying Islamism as our adversary, and then try to understand it, and by understand it I mean not only its manifestation as terrorism, but its entire anti-western and anti-democratic agenda. That will allow us at least not to empower it. I do not suggest that we can bring about the kind of change in the Islamist point of view that Douglas MacArthur brought about in the practice of the Shinto religion; that kind of change in fact will have to come from reformist elements within Islam, and they exist. I recognize, particularly receiving an award named after James Madison, that if the establishment clause of the first amendment to our Constitution means anything it means that our government cannot go around picking winners and losers in theological debates.
But we can certainly defend ourselves, and when fund-raising for Muslim charity, a religious duty called zakat, becomes fund-raising for organizations that support terrorism, that behavior should be prosecuted under statutes that criminalize material support for terrorism, rather than encouraged in the guise of facilitating charity. We should not have prosecutors being told, as they are, not to bring such cases for fear of giving offense to people who are bent on our destruction. We must realize that cultivating them not only endangers us, but also endangers and silences people in the Muslim community with moderate views.
When our government does outreach to the Muslim community, as it does constantly, there is no reason why that outreach cannot go to reformers, and why we cannot avoid going to organizations that are affiliated, whether directly or indirectly, with the Muslim Brotherhood, the organization founded by Hasan al Banna in Egypt in the 1920’s, whose representatives were invited to attend President Obama’s speech at Al Azhar University in 2009, and an organization that continues to this day to function actively in Egypt and through affiliates in this country, including such organizations as ISNA – the Islamic Society of north America, which was proved during the terrorist funding trial of an organization called the Holy Land Foundation to be involved in funding Hamas, and others that have been the objects of outreach by the government.
We can ask Congress to face the fact that we have to detain people, and pass a statute that defines who is subject to detention, and with what safeguards, and make intelligence gathering a principal and not a secondary goal following capture. I don’t know whether it will come as a surprise to you that the only authority the government relies on now is the authorization for the use of military force passed by Congress in September 2001, and that does not even mention the word detention.
And it may well be that if detainees must be charged with war crimes on an ongoing basis – and we don’t have a large number of them in custody now, but that could change – in that event, it may well be that what is called for is a national security court to replace military tribunals, presided over by Article III judges but staffed perhaps from the military. Many people, including Andy McCarthy, have written extensively about what such a court might look like.
Some of these steps need to be taken immediately – recognizing the danger, and prosecuting material support cases instead of worrying about the sensibilities of people who mean to destroy us are at the top of that list. Serious efforts at intelligence gathering from all terrorism detainees is a close second.
I think it would be helpful at least to start the discussion about a viable detention statute. We are holding people in custody now at Guantanamo who are not charged with war crimes and will not be so charged, but are deemed too dangerous to release or cannot be released to any jurisdiction where they will be safe. There are about 100 such people, and the Supreme Court in the Boumedienne case said they had to be able to file habeas corpus cases, but left it to individual judges to devise the rules for conducting such cases. Those cases are being filed in the District of Columbia where the judges, being human, are coming up with different standards and differing results in factually similar cases.
It may be that all of this will sort itself out in the usual mess of appeals and remands and so forth, but if the numbers of prisoners for some reason goes up sharply, or if there is pressure for uniformity because divergent results that were only a mild irritant until now come to be regarded as intolerable, then at least such a discussion will have generated proposals, and we will have something at hand.
A national security court is even further on the horizon, and so perhaps we don’t have to start actively talking about that yet.
Procrastination is generally regarded as a bad thing, but when it comes to answering the questions we have refused to face in the last ten years, a bit of triage is in order. We can’t take on all the questions at once; triage means dealing with what you have to deal with first.
And so far as the ultimate one is concerned, what will winning look like, I would prefer to worry about that when there are more Islamists who are concerned about their movement giving up the goal of imposing Sharia on the West than there are Islamists who dream of achieving that goal. I don’t think we are quite there yet.
Thank you very much for the honor of this award and for the even greater honor of speaking to you. Good night.
|New York City Lawyers Chapter|