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Posted November 16, 2005

U.S. Struggling to Make Law Enforcement, Military Models Handle Detainees, Terror Suspects

Graham

“In terms of traditional armed
conflict, the Geneva Conventions
are absolutely essential,” said
Col. David E. Graham, executive
director of the U.S. Army JAG
School.


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The war on terror, in which information from interrogations is a key tool in thwarting attacks, has been muddied by the difficulties of handling detainees in a legal system that was not designed for such use, said panelists during a forum at the Law School Nov. 10. The hybrid use of the military and law enforcement both in preventing attacks and punishing offenders has made for a sometimes-confusing legal landscape that may leave the United States open to charges of hypocrisy from abroad, some panelists charged. The event, part of an annual series hosted by the Center for National Security Law since 9/11, was co-sponsored by the J.B. Moore Society of International Law and the U.S. Army Judge Advocate General’s Legal Center.

“When there are serious allegations of human rights problems, the harm to effective war-fighting of the United States is extremely high,” said moderator and Center director John Norton Moore, a U.Va. law professor. Moore noted that a central front in the war on terror is a political ideological struggle, and crimes like those committed at the Abu Ghraib prison harm the reputation of the country.

Moore

Moderator John Norton Moore (above) asked panelists what they might do differently in handling terrorist and unlawful combatant detentions and trials.

“In a perfect world you would have the cooperation of the executive branch and Congress,” said Graham, who described Congress as “AWOL” on this issue until the latest movement to halt alleged torture techniques. Graham said he would build more efficient appellate rights and better access to counsel.

“It may in fact take some tweaking of the criminal code” to try terrorists in federal district courts, Graham added.

Bowman noted that in federal courts, the inclusion of classified evidence in terrorism cases can be problematic. “What does the defense counsel get to see? And by the way, what does the defendant get to see?” The prosecution generally requests a protective order to keep defense counsel from sharing the evidence with anyone, but individual courts are making such decisions. One of the problems with alleged 9/11 conspirator Zacarias Moussaoui is that he keeps trying to fire his lawyers. “That has bogged down the trial time after time after time…He’s trying to confound the court.”

Lawyers might object to mucking with federal court rules, Wedgwood suggested. She proposed creating a different department to deal with terror cases. Otherwise, officials might fine-tune current standards by creating a “super-clearance” procedure for defense attorneys, in which more classified information was made available to qualifying lawyers. The right to an attorney and to represent one’s own case has tested even international courts, as former Yugoslavian President Slobodan Milosevic has taken over his own trial for war crimes.

“Some of the dilemmas that are faced [with trials depending on operational information] may not be ones that will go away easily,” Wedgwood added. Even if legislators are brought on board, treaty regulations the United States is beholden to “will survive any signature by Congress.”

Wedgwood noted that much of the heterogeneity in the treatment of cases was a result of the Justice Department’s desire to prove that criminal convictions in cases like those of Richard Reid and Moussaoui could work.

“It’s proven to be harder than people thought it would be.” Pursuing criminal charges for suspects like alleged dirty bomber Jose Padilla seem less plausible because he did not complete a terrorist act.

“We have to [conduct the war] in a way that will in fact enhance the number of allies we have around the world…and to isolate those extremists who are going to turn into suicide bombers.” After Vietnam, the United States led the world in integrating human rights into the laws of war, particularly in training efforts among foreign military forces, Moore said, “and yet somehow something went wrong here in overriding military advice and failing to listen to military judgment on those issues.”

Panelist Col. David E. Graham, executive director of the U.S. Army JAG School, said whether the United States views the war on terror as a true, legal war has a significant impact on the extent to which international law can be applied. Two schools of thought take very different approaches to the matter, he said.

The first believes 9/11 changed everything, and that the United States is at war. “This school would say the old rules simply do not work,” said Graham, who stressed that he was speaking in his own capacity.

The second school of thought believes international and domestic law is quite sufficient to deal with the “global war on terrorism”—a term that they would describe as a “hyperbolic fiction.”

Graham has heard from numerous foreign colleagues who have countered the idea that 9/11 changed the world by concluding that the only new thing about the war on terror is that the United States was finally hit by a confidence-shaking terrorist attack. In their view, the traditional laws still work, but America has adopted a “largely self-serving unilaterally mandated set of rules,” that verifies stereotypes about American exceptionalism. “Rather than a new world, they insist on telling me, the United States has finally been introduced to the real world,” said Graham.

Graham proposed that the United States prosecute unlawful combatants through military commissions, but with the same lawful interrogation techniques used for all U.S. detainees. Terrorists, however, should be tried under existing federal law. “I think that you have to look at [cases] on an individual basis,” he said.

The administration established the military commission process because officials didn’t want to afford detainees POW status due to obligations to try them under the court martial system, Graham said. Commissions, it was thought, would be swift and sure, and prosecutors wouldn’t face the kind of obstacles they would in federal court.

The United States has been criticized for alleged interrogation techniques at Guantanamo. Yet even outside Geneva Convention rules there are many treaties the United States is beholden to, such as the Human Rights Convention, that offer detainees protection and rights, even if they are not POWs, Graham said.

“I think we have to establish a sophisticated process, and we didn’t do it two or three years ago,” he said. In picking and choosing among law enforcement and military models, “The administration has attempted to have its cake and eat it too.”

“It is far too simple to say that 9/11 changed everything,” agreed M. E. "Spike" Bowman, director of the Intelligence Issues Group in the FBI Directorate of Intelligence, who also spoke in a personal capacity. “This is a political struggle that is really unlike anything we have been faced with in the past because in this one, the objectives and tactics are not as clearly defined for us as a conventional war. The tactics that are being used are nontraditional. It is not clear whether anyone can win this war.…The purposes are different—it is not necessarily to win, but to prevent the next terrorist attack.”

As a result, gathering information before the crime is critical, unlike traditional law enforcement. “Some of [the interrogated detainees] aren’t very nice people, but they know what their compatriots are doing,” he said. “That’s where we get our best information.”

Another key source of information is the U.S. communications structure, one of the cheapest in the world. “What we want to find out really are telephone numbers, we want to know e-mail accounts,” Bowman said, as well as how they communicate with each other and move money around. Their system is constantly changing because the United States has caught or killed about two-thirds of al Qaeda leadership, since 9/11. A phone number stuffed in a pocket can be gold to an FBI agent.

Bowman

Bowman noted that interrogators
are not able to get information
from some people, and they
are turned loose. Sometimes
the suspects are detained by
mistake, and sometimes they
were implicated by their
enemies, but some are “within
10 days found…back on the
battlefield with a gun in their
hand.”

FBI agents, the “crown jewels in the world for interrogation,” are sent over with the military to pick up intelligence, Bowman said. Because agents are trained to build a rapport with the people they question, “most people, believe it or not, talk to the FBI.”

The FBI has had to deal with a host of issues caused by their new environment, beginning with the embassy bombings in Nairobi. “When we interrogate people, we give them their [Miranda] rights. What are we supposed to do in [Nairobi, when there is no attorney available]?” Agents ended up giving a modified Miranda warning without the right to an attorney. When suspects were brought to the United States for trial, they unsuccessfully challenged the technique in court.

Bowman noted that the FBI are trained to preserve the rights of citizens and choose to do the same to the extent possible overseas. Unlike the military, the FBI follows the attorney general’s guidelines for interrogation. This has created some problems, for example when two FBI agents are stationed at a base with 50-100 military servicemen. “It unintentionally tends to look like good cop/bad cop” if interrogations by the FBI and military are conducted too close together.

“If you have the ability to preserve the social justice system that we have…then I think that’s the way our public expects the FBI to work,” he said. “Whether we are overseas or in the United States, we cannot do our job without the support of the public.”

Bowman defended the idea of using different agency resources for different tasks in the war on terror; U.S. Marshals should transport detainees, for example, and to get information from prisoners, the FBI should interrogate them. “One size doesn’t fit all for this purpose,” he said. “I don’t have any problem with the military commission…but we have to remember we’ve got another purpose in holding these people.”

Wedgwood

Wedgwood wondered why
the United States doesn’t
make greater efforts at
using terrorists’ own tools
to impede their cause, for
example by spoofing a
fatwa. “If you’re having a
civil war in Islam, why can’t
you make some noise?”
Wedgwood wondered. The
Amman bombings may yet
reawaken more moderate
voices in Islam. “If
extremists can organize
by the Internet, then so
can moderates.”

After 9/11, uncertainty reigned among the public and among government officials as to what al Qaeda’s capabilities were, said Ruth Wedgwood, a law professor and Director of the International Law and Organization Program at the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University. “There really was no—to my mind—obvious way to proceed,” said Wedgwood, who serves on the Pentagon’s defense policy board and on the secretary of state’s advisory committee on international law.

Normally in a libertarian society, law enforcement officials wait for a crime or signs of a crime to appear before acting, she said. “The concern after 9/11 is, what if you have a criminal actor who has the means and wherewithal and intention to kill 30,000?

“There may be a limit on how much you can collect by way of intelligence if your only modality is law enforcement,” Wedgwood said, noting that law enforcement agents traveled abroad only with the consent of the host country. Other rules limited law enforcement: The FBI could not examine 9/11 conspirator Zacarias Moussaoui’s laptop under the old rules, for example, and under a law enforcement mindset, when Qatar told the United States that Osama bin Laden had landed to refuel his plane while leaving Sudan, U.S. officials said to send him to Afghanistan.

But on the other hand, “choosing a war model does not mean devil may care, anything goes,” she said. A 1907 Hague Convention clause, sometimes dismissed as a prefatory phrase by critics, notes that war powers are not free to do whatever they please if rules for unanticipated situations aren’t codified. The phrase requires treaty members to “take some heed of the moral constraints and the common opinion of the rest of the international community.”

A set of procedures for handling detainees is evolving, but “nobody’s quite figured [out]” how to try cases, she said. The military commissions planned for Guantanamo detainees are on hold while the Supreme Court decides whether the format is appropriate.

Wedgwood suggested that some domestic criminal law elements in detention or terrorism cases should be sacrosanct—proving guilt beyond a reasonable doubt, the right to exculpatory evidence—but Congress chose not to create a framework to address these issues.

“If Congress doesn’t take the initiative to propose alternate frameworks [and take the responsibility for potentially being wrong], the executive [branch], which is in session 24-7, does it for them,” she said.

No one has proposed a special panel for terrorism cases. Judges could turn hard-bitten if they only deal with such cases, but that experience may be useful in dealing with those abroad who don’t play by the rules, Wedgwood suggested.

“Neither [the law enforcement or military] model is designed to run from the defendant’s own mouth,” she said. “In that sense we may really have to invent a hybrid model or a new model."

The techniques the United States has adopted to deal with terrorist suspects and unlawful combatants seem to conflict with the U.S. common law system, which is particularly libertarian, she said. In contrast, France’s and Spain’s legal systems trust judges to conduct investigations and allow for years-long detentions without the right to a speedy trial.

Wedgwood had recently returned from Geneva, where in her work for the U.N. Human Rights Committee she took part in an examination of Brazil. The South American country was portrayed as a violent place where rural police do what they please while the federal government looks the other way. Wedgwood said she would like to be able to critique Brazil without seeming hypocritical.

“The problem of losing your moral leverage is one that we have to keep very much in mind, particularly if you are a Wilsonian,” she said. Hopeless, unemployed young Muslim men need something to be optimistic about, including democracy and a chance to take part in government. If the United States can’t embody those qualities, it makes their case all the more difficult.

“To maintain one’s morale for the long run, to avoid the Vietnam syndrome…one has to maintain a certain degree of moral self-confidence, which requires, at times, some reticence. You can’t quite match the ferocity of your adversary,” she said.
• Reported by M. Wood

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