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Ethics & International Affairs
Annual Journal of the
Carnegie Council on Ethics and International Affairs
The Law's Response to September 11
Ruth Wedgwood
It is hard to watch a society's political virtues mocked as weakness by an uncomprehending foe. The fireball attacks of September 11 against the World Trade Center towers and the Pentagon consumed the lives of more than 3,000 ordinary people-Americans and foreign visitors, businesspeople, secretaries, schoolchildren visiting the Pentagon, travelers flying home. Like Joseph Conrad's terrorist who wished to destroy pure mathematics and settled for the Greenwich clock tower, this was an attack on civil society and global economy, and worst of all, on the innocence of noncombatants.
The jiujitsu of the al-Qaeda strategy is its exploitation of the civil values we most care for-the protection of privacy, the celebration of free association and speech, and the cultivation of a multiethnic democracy. Osama bin Laden recruits his young men into militancy in mosques and madrassas, even in the United States, taking advantage of the privacy we extend to religious practice. He has sent his henchmen around the country, to take jobs and gain technical training, using our freedom of movement to prepare his weapons. And he has exploited as cover the varied hues of America's faces, where no group is outside and everyone appears to be local.
Al-Qaeda's hidden target is globalization as well as liberalism. The full integration of the world economy supposes that borders are meant to be freely crossed, and that aliens and citizens will converge in their practical privileges. Yet, of a sudden, national allegiance seems a necessary safeguard against jihad. Borders appear as castle walls to ward off danger. And the ebullient optimism fueling economic growth has taken a tumble, not simply from an oversupply of capital goods, but from an undersupply of fellow feeling. A shared interest in prosperity has not been enough to render benign alienage and the political erasures of borders.
In this unwanted war of the worlds, America's necessary steps of self-protection have not been easy to take. The longtime strategy of treating terrorism as crime rather than war has supposed that the imprisonment and punishment of a limited number of actors would strike fear in the rest, and accomplish the goal of deterrence. We have hoped that the condemnatory label of terrorism would suffice to discourage the violent acts of angry young men in low-growth Muslim countries. But the poor fit of this paradigm has become newly apparent. The punishment of death is victory in a martyr's culture, and imprisonment can be prized as a form of suffering.
We tolerate multiple acts of individual and social violence as the cost of safeguarding our privacy and liberty, demanding that the government meet an extraordinary standard of proof before it can claim any power over our person, acting with a retrospective rather than anticipatory glance. But now the stakes seem different. We are not accustomed to losing thousands of lives in the blink of an eye and the view of a camera. We are not used to the malevolent leverage that lets a handful of men multiply their destructive power through the ordinary instruments of transport and commerce. The deliberate temperance and incompleteness of criminal law enforcement seem inadequate to the emergency, when the threat to innocent life has multiplied by orders of magnitude.
Bin Laden's interest in chemical, biological, and nuclear weapons has been reported for years in the Arab-language press, and recent discoveries in Afghanistan, on the computers and tablets left behind by fleeing al-Qaeda members, has confirmed the frightening agenda. A state has varied linkages and interests to moderate its behavior. But a single-purpose international jihad-a transnational nongovernmental actor of new and malign form-has little reason to stay within any past threshold of violence. We recall with a shudder bin Laden's stated ambition to have a "Hiroshima-style" event. We wonder why we did not take seriously the braggadocio of the conspirators in the 1993 World Trade Center bombing, who announced that their real intention was to topple the buildings across lower Manhattan. The newly captured al-Qaeda training manual should further unnerve us, for it instructs its jihad warriors to assume every appearance of normalcy, in order to escape detection within Western civil society. Playing music, shaving beards, wearing gold, associating with women, refraining from open prayer, all are recommended and warranted as legitimate methods of disguise. We may surely wonder how to tell fish from fowl.
We should long ago have acted to shut down bin Laden's training camps in Sudan and Afghanistan-before al-Qaeda had time to train thousands of young men in the techniques of terror. Sudan's offer to hand over bin Laden in 1996 should not have fallen on deaf political ears, with the disastrous decision to allow him to flee to a new lair in Afghanistan. It was a sheer intellectual failure to suppose that admissible courtroom proof, American- style, was the only relevant standard in assessing danger and in justifying necessary acts of self-defense. And even if we were inattentive at first, the deadly cavalcade of events across the decade of the 1990s should have knocked us awake. We wished for a post-Cold War dividend, and ended up cutting the American armed forces to two-thirds of their former size, running our remaining troops ragged in overtime peacekeeping and humanitarian intervention. Our preoccupation with other people's problems in the interventionism of the 1990s, admirable as it was, meant that we ignored the one greatest problem before us-the escalating jihad against American personnel, property, and civilians. The mortuary list spans the full decade: the 1992 bombing in Aden aimed at American GIs bound for Somalia; the 1993 firefight in Mogadishu killing eighteen Army Rangers, staged by fighters trained by al-Qaeda; the 1993 trade center bombing in New York City; the 1995 Riyadh training center bombing; the 1996 bombing of the Khobar Tower barracks in Saudi Arabia; the 1998 East African embassies bombings; the 2000 USS Cole bombing in Yemen; and finally the events of September 11, 2001. Bin Laden seemed to understand the American political rhythm-how much we would tolerate, our difficulty in following patterns, the intervention of worldly distractions. Wistful requests for cooperation from ambivalent governments in the region were not going to turn the tide. Saudi Arabia executed the Khobar Tower conspirators before the Federal Bureau of Investigation could trace their sponsors' methods. Yemen similarly limited the FBI's inquiry on its soil. The symbolic launch of American Tomahawk missiles against bin Laden's training camps in Afghanistan and a pharmaceutical factory linked to bin Laden in Sudan did not hinder his operations, but instead damaged our credibility when American cabinet officers seemed unfamiliar with the basic facts of target selection.
Now, at last, we understand that there is no immunity at the water's edge, and that bin Laden's network is unrelenting in its appetite for confrontation.
For lawyers, the hardest part is in coming to terms with the paradigm shift: that terror can be war as well as crime, and that some of the institutional habits from the past are no longer adequate to the problem. One example is the blindman's bluff that separated domestic criminal investigations and overseas intelligence collection. Bin Laden's terrorist network operated onshore and offshore, yet the two halves of the U.S. government could not share their pieces of the puzzle to allow anticipation in real time. In the aftermath of the 1960s and 1970s, we banished intelligence agencies to overseas collection, to avoid any chance that they could misuse a stateside presence. To complete the firewall, federal criminal agencies were told they could not disclose investigative information to the intelligence agencies, except in limited circumstances-including grand jury testimony (often the best source of human intelligence) and domestic wiretaps. Overseas FBI offices were unable to collect information beyond the limits set by their host governments. In short, no one in the federal government had an integrated picture of al-Qaeda's activities, and the split-brain model was made all the worse when the FBI stopped talking to the White House. The names and aliases, the airplane tickets and apartment rentals, the travel patterns and associations-investigation of which might have allowed us to follow al-Qaeda conspirators as they ventured offshore and back-were unfathomable to a government whose agents were confined to half the picture.
A post-September 11 statutory reform agreed to by Congress and the president newly permits the broad sharing of information between federal criminal investigators and overseas intelligence operatives. It is limited by a "sunset" provision-the statute will expire in four years unless Congress renews it-and it still does not allow sharing with local security officials and foreign intelligence services. But the proof will be in the practice. To intercept attacks we need to act in real time, and the pooling of information must be efficient and practical at the working level as well as in policy circles. It takes a network to catch a network.
There are other more contentious issues in the new approach to terrorism, and it has been salutary to debate them with a full airing of views. Perhaps the most difficult is Attorney General John Ashcroft's decision to permit the monitoring of conversations between a few post-September 11 detainees and their lawyers on a selective basis for intelligence purposes. Why should this ever be permitted? Perhaps because lawyers are often asked to carry messages for their clients. The lawyer's right to disclose an ongoing crime does not solve the problem, since an honest lawyer may not even realize the significance of the message he has been asked to convey. Criminal networks can be run from jail. It has happened in organized crime cases. We take that chance and shelter the lawyers' conversations in ordinary times. But allowing an al-Qaeda leader freely to pass instructions to his outside network portends disaster. Communications used to commit a new crime are not protected, but this also does not solve the problem since the suspect communication will not otherwise be known to public safety authorities absent the monitoring.
Yet the fair trial concerns are also evident. It is fundamental to the constitutionally protected right to counsel that a defendant should be able to confide in his lawyer, without fear that secrets will be revealed at trial. But it is some cause for comfort that like problems have been managed in the past. Even in quieter times, a foreign government office may be monitored for threat-based intelligence purposes while a defense lawyer is representing a criminal defendant at the foreign government's behest. The possibility of overhearing the defense lawyer calling the foreign government office is unwelcome, yet often unavoidable. The usual solution, which has worked well in practice, is to separate the prosecutorial trial team from the intelligence-monitoring team-insulating the trial lawyers from any unfair anticipation of defense strategy or other defense confidences. In the attorney general's order, any proposed sharing of information from the monitoring has to be submitted to a federal judge for review, and approved as unprivileged information.
Another contentious issue is how to handle anymembers of al-Qaeda or senior Taliban who are captured on the battlefield in Afghanistan. The members of al-Qaeda have violated the laws of humane warfare in their attacks against civilian targets and in their tactic of disguising themselves as civilians. The fundamental rule of armed conflict is that combatants must not deliberately endanger civilians-either by choosing them as targets, or by using a civilian disguise to mask plans for attack. Al-Qaeda has done both. Al-Qaeda has deliberately killed innocent noncombatants in the attempt to spread terror. Al-Qaeda's attacks on military targets are also illegal because they were carried out in civilian disguise. Members of al-Qaeda familiar with its criminal purpose can thus be arrested for conspiracy to commit war crimes.
The current debate in the United States has centered on how to try any such members of al-Qaeda. The president's executive order of November 13, 2001, establishing military commissions as an option for trial was designed to meet three practical problems. First, we cannot afford to have a criminal trial prejudice the intelligence sources and methods needed to monitor al-Qaeda's ongoing activities. In the middle of a war, it may be necessary to close some limited portions of a trial in order to avoid endangering more lives. Second, we may need to consider a broader range of evidence, including some forms of hearsay denied to fact finders in an ordinary jury trial. A compartmentalized conspiracy with a taste for retaliation may not be amenable to the usual more direct forms of proof. And third, the simple physical security of a trial may be hard to assure against a network that is so skilled in mounting military-style campaigns. The American debate on the need for military tribunals has been robust and useful. But it is interesting to note that organizations such as the American Bar Association have come to agree that the modality of military commissions may be necessary. 1 The outgoing United States attorney in the Southern District of New York, who has an extraordinary record in trying terrorist cases, has also concluded that ordinary federal court trials may not be adapted to the future practical problems of breaking the al-Qaeda network. 2
A privileged prisoner of war is sometimes tried in the same mode as his adversary's soldiers. But al-Qaeda members have not fulfilled the prerequisite conditions of the Third Geneva Convention of 1949-failing to observe the laws of war, or to wear identifying insignia, or to carry arms openly-and may thus fairly be considered as "unlawful combatants." The executive order seeks a "full and fair" trial, and detailed rules for these military commissions are due to be issued. These are consistent with our legal obligations under international law.
The other hard option that must be considered is the wartime prerogative to detain opposing combatants until the conflict is over-even without a trial for war crimes. In an ordinary war, enemy soldiers are interned, under humane conditions, for the duration of hostilities in order to prevent their return to the fight. There may be members of al-Qaeda whom we choose not to try on criminal charges, yet detain as combatants for a period of time. In an ordinary war, it is simpler to identify the enemy combatants because they distinguish themselves by uniform. And in an ordinary war, there is a government to negotiate surrender and soldiers who will obey their government's commands. In the al-Qaeda network, it is less clear whether any leader is capable of deactivating the dispersed cells of actors. The attempt to take "surrenders" from al-Qaeda fighters have been met with renewed violence on several occasions, in betrayal of the promise of peaceable behavior that surrounds the privilege of surrender. It may be hard to characterize when the conflict with al-Qaeda is "over." It is hard to believe that we would contentedly release captured combatants against whom we have strong (if imperfect) evidence of active al-Qaeda membership. In the focus on military tribunals, this circumstance of law and necessity has not been fully addressed, but it may be a condition of the brave new world of jihad terrorism that we simply cannot avoid.
Each war brings unanticipated challenges. With care and deliberation, we must preserve our ethical ideals even while adapting the rules of warfare and criminal adjudication to the new and unwelcome circumstances of al-Qaeda's war against civilians.
Notes
Note 1: American Bar Association Task Force on Terrorism and the Law, "Report and Recommendations on Military Commissions," January 4, 2002, available at www.abanet.org/leadership/military.pdf. Back
Note 2: Benjamin Weisner, "A Nation Challenged:The Strategy-Ex-Prosecutor Wants Tribunals to Retain Liberties," New York Times, January 8, 2002, p. A13. Back