By Karen J. Greenberg

As the 10th anniversary of 9/11 approaches, the unexpected extent of the damage Americans have done to themselves and their institutions is coming into better focus.  The event that “changed everything” did turn out to change Washington in ways more startling than most [...]]]> Reposted by arrangement with Tom Dispatch

By Karen J. Greenberg

As the 10th anniversary of 9/11 approaches, the unexpected extent of the damage Americans have done to themselves and their institutions is coming into better focus.  The event that “changed everything” did turn out to change Washington in ways more startling than most people realize.  On terrorism and national security, to take an obvious (if seldom commented upon) example, the confidence of the U.S. government seems to have been severely, perhaps irreparably, shaken when it comes to that basic and essential American institution: the courts.

If, in fact, we are a “nation of laws,” you wouldn’t know it from Washington’s actions over the past few years. Nothing spoke more strikingly to that loss of faith, to our country’s increasing incapacity for meeting violence with the law, than the widely hailed decision to kill rather than capture Osama bin Laden.

Clearly, a key factor in that decision was a growing belief, widely shared within the national-security establishment, that none of our traditional or even newly created tribunals, civilian or military, could have handled a bin Laden trial.  Washington’s faith went solely to Navy SEALs zooming into another country’s sovereign airspace on aT moonless night on a mission to assassinate bin Laden, whether he offered the slightest resistance or not.  It evidently seemed so much easier to the top officials overseeing the operation — and so much less messy — than bringing a confessed mass murderer into a courtroom in, or even anywhere near, the United States.

The decision to kill bin Laden on sight rather than capture him and bring him to trial followed hard on the heels of an ignominious Obama administration climb-down on its plan to try the “mastermind” of the 9/11 attacks, Khalid Sheikh Mohammed, or KSM, in a federal court in New York City.  Captured in Pakistan in May 2003 and transferred to Guantanamo in 2006, his proposed trial was, under political pressure, returned to a military venue earlier this year.

Given the extraordinary record of underperformance by the military commissions system — only six convictions in 10 years — it’s hard to escape the conclusion that the United States has little faith in its ability to put on trial a man assumedly responsible for murdering thousands.

And don’t assume that these high-level examples of avoiding the court system are just knotty exceptions that prove the rule.  There is evidence that the administration’s skepticism and faint-heartedness when it comes to using the judicial system risks becoming pervasive.

Pushing Guilt Before Trial

Needless to say, this backing away from courts of law as institutions appropriate for handling terrorism suspects began in the Bush-Cheney years.  Top officials in the Bush administration believed civilian courts to be far too weak for the Global War on Terror they had declared.  This, as they saw it, was largely because those courts would supposedly gift foreign terrorist suspects with a slew of American legal rights that might act as so many get-out-of-jail-free cards.

As a result, despite a shining record of terrorism convictions in civilian courts in the 1990s — including the prosecutions of those responsible for the 1993 attempt to take down a tower of the World Trade Center — President Bush issued a military order on November 13, 2001, that established the court-less contours of public debate to come.  It mandated that non-American terrorists captured abroad would be put under the jurisdiction of the Pentagon, not the federal court system. This was “war,” after all, and the enemy had to be confronted by fighting men, not those sticklers for due process, civilian judges and juries.

The federal courts have, of course, continued to try American citizens and residents (and even, in a few cases, individuals captured abroad) in terror cases of all sorts — with an 87% conviction rate for both violent and non-violent crimes.  In fact, 2010 was a banner year for terrorism prosecutions when it came to American citizens and residents, and 2011 is following suit.  As could have been predicted, in the vast majority of these cases — all the ones that mattered — there were convictions.

You might think, then, that the courts had proved their mettle against mounting criticism and distrust of a system said to be insufficiently harsh. And initially, Obama’s Department of Justice defended civilian courts as resilient and flexible enough to try terror cases.

But that didn’t last.  Recently, the Obama administration has reinforced a policy (begun under President Bush) which offers an ominous new twist on American justice: punishment before trial.  It has, for example, relied upon various extreme methods of pre-trial isolation — including a version of restrictive orders known as Special Administrative Measures, or SAMs — that reek of punitiveness and have often caused severe psychological deterioration in suspects awaiting trial on terrorism charges. The most noteworthy case of this is Syed Fahad Hashmi’s.  An American citizen arrested while studying in England, Hashmi had allowed an acquaintance, Mohammed Junaid Babar, to stay in his apartment for two weeks. Babar, who testified against Hashmi and was later released, allegedly had socks, ponchos, and raingear intended for al-Qaeda in his luggage and allegedly used Hashmi’s cell phone to call terrorist conspirators. Hashmi, accused of “material support” for al-Qaeda, was kept under SAMs for three years without trial — until he finally pled guilty.

The urge to punish before a verdict comes in reflects the same deep-seated conviction that the U.S. court system is simply not to be trusted to do its job.  Two recent cases — that of whistleblowers Thomas Drake and Bradley Manning — illustrate how, in cases where national security is believed to be at stake, Obama-era pre-trial treatment has taken up the distrust of the courts, civilian or military, that characterized the Bush years.

Drake, an executive for the National Security Agency (NSA), became a whistleblower over what he considered mistaken policy decisions about an ill-performing data-sifting program which, among other things, he thought squandered taxpayer money. Subsequently, he revealed his disagreement with the agency’s warrantless wire-tapping program, which he believed overstepped legal boundaries. Charged initially with violating the Espionage Act and threatened with a draconian 35-year jail sentence, Drake finally pled this past June to a misdemeanor count of “exceeding the authorized use of a government computer.”

In Drake’s four-year saga, his pre-punishment took the form not of pre-trial detention but of the destruction of his livelihood. He was initially fired from the NSA and from the National Defense University position to which the NSA had assigned him. Once indicted in 2010, he was forced to resign from a subsequent teaching post at Strayer University. All told, the formal and informal hounding of Drake resulted in the loss of his jobs and pension, as well as $82,000 in legal costs. Ultimately, Drake was sentenced to a year’s probation and 240 hours of mandatory community service. By that time, he had been ruined financially and professionally, thanks to the government’s disparagement of him and the multi-year delay between its accusations and the lodging of formal charges against him. Drake now works at an Apple Store. In other words, well before the government took its chances in court, Thomas Drake was punished.

Another highly publicized case where punishment preceded trial has been the mistreatment of Army Private Bradley Manning while in military custody in a Marine brig in Quantico, Virginia, awaiting charges.  The Obama administration believes he turned over a trove of secret military and State Department documents to the website WikiLeaks.  Following his arrest, Manning was kept in subhuman conditions.  He was forced to sleep naked and to strip for daily inspections, though as news about his situation generated bad publicity, he was eventually allowed to sleep in a “tear-proof” gown.

There is something deeply disturbing about the very different ways Manning and Drake were pre-punished by the government — both directly in the case of Manning and indirectly in the case of Drake — before being given due process of any kind.  Like bin Laden’s killing, both cases reflect an unspoken worry in Washington that our courts will prove insufficiently ruthless and so incapable of giving the “obviously guilty” what they “obviously” deserve.

The Courts Take Notice

As it turns out, the judicial system hasn’t taken the government’s new attitude lying down.  Various judges and juries have, in fact, shown themselves to be unfazed by both public and governmental pressures and have, in terror and national security cases, demonstrated signs of balance and of a concern for justice, rather than being driven by a blind sense of revenge.

In the past year, there has been an unprecedented number of high-profile terrorism trials. All have resulted in convictions, which have nonetheless not reflected the unstinting harshness that critics of court-centered counterterrorism insist upon.  In the case of Ahmed Ghailani, the sole Guantanamo detainee to face trial in the nation’s criminal justice system, the jury, having done its work of assessing the evidence, acquitted the defendant on 284 of 285 counts, including all the murder charges associated with the 1998 bombings of the U.S. embassies in Kenya and Tanzania.  On the single count on which he was convicted, however, Ghailani was given a life sentence without parole.

Meanwhile, a high-profile terrorism case — that of Tagawwur Rana — ended in a jury acquittal on its most serious charge.  Rana had been accused of cooperating in the 2008 terrorist attacks in Mumbai, India, which resulted in the deaths of more than 160 individuals. The jury found Rana guilty of material support, but not of helping to coordinate the attack.

These cases and others like them have, of course, been fodder for all the usual critics who consider anything but a 100% conviction rate on all charges in all cases to be a sure sign not of the justice system’s strength, but of its fundamental weakness.  And yet, such cases have showcased just how effectively the system still works, in a more nuanced way than in the previous near-decade, as well as in a subtler and more just way than Washington has managed to approximate over that same period.  Despite the fears, pressures, and scare tactics that are entangled with all such terror cases, we now have living proof that juries can think for themselves, and guilt can be a partial matter, rather than a Washington slam-dunk.

Of late, federal judges on such cases also seem to have been signaling to the government’s representatives that they must be more restrained in their approach to national security cases, both in and out of court. In late June, for instance, during the sentencing of three of the men convicted of conspiring to bomb two synagogues in Riverdale, New York, and to launch a Stinger missile aimed at aircraft over Newburgh’s Air National Guard Base, Judge Colleen McMahon struck back at the government’s case.  “I believe beyond a shadow of a doubt,” she said, “that there would have been no crime here except the government instigated it, planned it, and brought it to fruition.  That does not mean that there was no crime. The jury concluded that you were not entrapped, and I see no basis to overturn their verdict.”

In the Drake case, Judge Richard Bennett was similarly distraught about the evident excesses in the government’s approach. At sentencing for the single minor count to which Drake agreed to plead, the judge bluntly refused to impose the $50,000 fine the prosecution was pushing for on the grounds that punishment had already been administered — prior to the court process. “There has been financial devastation wrought upon this defendant,” said Bennett, “that far exceeds any fine that can be imposed by me.  And I’m not going to add to that in any way.  And it’s very obvious to me in terms of some of the irritation I’ve expressed… not only my concern over the delay in this case… [but also the prosecution’s] inability to explain … the delay in this case… I think that somebody somewhere in the U.S. government has to say… that the American public deserves better than this.”

In the recent jury decisions, as in the growing expressions of judicial dissatisfaction, an optimist might find signs that the system is finally starting to right itself.  On the other hand, a pessimist might come to the conclusion that the government will, in the future, simply put even more energy into avoiding the court system.

The bottom line is that the Obama administration, like its predecessor, defines success in terrorism prosecutions not by assessing whether or not due process and fair verdicts are administered, but solely in terms of what they deem proper punishment for those accused of violating national security — especially when doing so minimizes partisan political clashes. By refusing to rein in its evident distrust of the judicial system when it comes to national security, the government is perpetuating a legal landscape that, to this day, lies in the shadow of Osama bin Laden.

Karen Greenberg is the executive director of the New York University Center on Law and Security, a TomDispatch regular, and the author of The Least Worst Place: Guantanamo’s First One Hundred Days, as well as the editor of The Torture Debate in America.

Copyright 2011 Karen J. Greenberg

Reprinted with permission of TomDispatch.com

Just in case you thought that “political correctness” had been thoroughly discredited in the culture wars of the 1990s, it’s back — and this time it’s being treated as [...]]]> America’s Growing Intolerance
How “Enemy Creep” Is Guantanamo-izing America
By Karen J. Greenberg

Just in case you thought that “political correctness” had been thoroughly discredited in the culture wars of the 1990s, it’s back — and this time it’s being treated as a stalking horse for terrorism and getting pummeled all over again.

You only had to listen to the recent hearings convened by New York Republican Congressman Peter King on radicalization and the Muslim religion to know that, if the ascending right in Washington (and elsewhere) has its way, the age of tolerance in America is over.  In the name of putting political correctness in its grave, a surprisingly sizeable contingent of politicians, judges, and other influential figures are now calling for transforming draconian behavior — that once would have made Americans blanche — into the order of the day.

Blaming Political Correctness for Terrorism

King’s hearings underscored the urgency with which a growing cast of influential characters seeks to open yet wider the door to the sort of anti-democratic (and anti-constitutional) actions that have been woven into counterterrorism policy since September 11, 2001. As chairman of the House Committee on Homeland Security, King made it his job to acknowledge the obstacle that — as he might put it — excessive tolerance for minorities, foreigners, or other religions and cultures can pose. “To back down [from these hearings],” he insisted when criticized, “would be a craven surrender to political correctness and an abdication of what I believe to be the main responsibility of this committee — to protect America from a terrorist attack.”

It was hardly the first time in the Obama era that political correctness has been identified as a major cause of terrorism, or at least as a major roadblock to confronting terrorism.  One need only think back to the November 2009 killing spree in which Major Nidal Hasan, a Muslim Army psychiatrist, fatally gunned down 13 people at Fort Hood, Texas. In an op-ed penned several days after the attack, Republican Congressman John Carter, who represents the district where Fort Hood is located, pointedly connected political correctness to the dangers posed to the country by terrorism, warning, “Political correctness is killing Americans and undermining the national security of the United States.”

Key political figures continue to use the Hasan case to harp upon the imagined horrors of being politically correct.  For instance, in February, a Senate Homeland Security Committee report was still fretting that military “worries” about “political correctness inhibited Hasan’s superiors and colleagues who were deeply troubled by his behavior from taking the actions against him that could have prevented the attack at Fort Hood.” Texas Republican Senator John Cornyn, commenting on the report, insisted that “we must never allow the safety of those who defend our freedom to play second fiddle to political correctness.”

Dorothy Rabinowitz, a conservative columnist in the Wall Street Journal, echoed Cornyn, arguing in a much-cited op-ed that military psychiatrists failed to see Hasan’s rampage coming because they inhabited “the world of the politically correct.”

The message that political correctness is allowing al-Qaeda-ish wolves in sheep’s clothing to penetrate the country’s defenses has been spreading, based in part on claims about unlearned lessons from past incidents of terrorism.  Last month, at New York Law School’s City Law Breakfast Series, for example, Michael Mukasey, George W. Bush’s last attorney general and the former chief judge of the Southern District of New York, informed an audience of judges, lawyers, reporters, and law students that political correctness had actually been responsible for the FBI’s failure to stop the first terrorist attack on the World Trade Center in 1993.

“When a group of FBI agents approached what they thought was a bunch of folks who were taking rather aggressive target practice,” he told his audience, “and thought that they would give them a toss… and get their identification and so on… these folks put them off and challenged them and said [the FBI agents] were engaged in what is now known as profiling and [the agents] being polite, politically correct, backed off.” These “folks,” Mukasey added, included the ones who later hatched the plot on the World Trade Center.

On the specific crimes of political correctness, Mukasey was blunt: it gives a free pass to Islam which he suggests is a dangerous religion.  “We live in a culture… in which we hesitate to ask questions about other people’s religion, but when that religion is something they use as a justification for imposing a system on us, we are very well entitled to ask questions about it and to draw appropriate conclusions.”  These “appropriate conclusions,” his audience was left to conclude, seemed to include the notion that Islam “causes” terrorism.

According to Mukasey, guilt over earlier eras of American history is now working to derail commonsense measures for safeguarding the country. “We were very much on guard… and still are against a repetition of our treatment of the Japanese during World War II and of fomenting religious and ethnic tension in this country. We are also a society that is reluctant to examine other folks’ religions. For those two reasons, we shun the notion of a war on any movement that is or claims to be inspired by a religion.” According to Mukasey, even President Bush was swayed by an irresponsible emphasis on tolerance into “going so far as to tell us that… ‘Islam is a religion of peace.’”

Revenge Enters the Torture Debate

The conviction that political correctness has been crippling America’s struggle with violent jihadists inevitably leads Mukasey and others like him into treacherous waters that tend to sweep away ever more civil liberties, as has been true for Washington policymakers since George W. Bush’s Global War on Terror began. For them, the urge to chip away at a traditional American commitment to religious toleration reflects a deeper imperative to jettison a wide range of traditional legal protections.

In Mukasey’s rendering of recent history, the failure of al-Qaeda to mount another major set of attacks in the United States can be explained by the Bush-Cheney administration’s willingness to stiff-arm politically correct civil libertarians and human rights advocates. As the former attorney general put it at that breakfast meeting, “A great deal of this success, I believe, was due to the CIA interrogation program, which involved… questioning [detainees] vigorously at times.”

He’s talking about torture, of course, a word he couldn’t quite bring himself to utter, even though the euphemisms of others on the subject offend him. Here’s what he said about the phrase “enhanced interrogation techniques” which often replaced “torture” in Bush administration and media accounts of what CIA interrogators and others were doing: “[It was] probably one of the worst PR campaigns since New Coke… It sounds like a wash product, doesn’t it? Enhanced — get the whitest wash on the block.  I think ‘harsh techniques,’ ‘coercive techniques’ would have been a whole lot more accurate and in the end a whole lot less harmful, because when you use the euphemism like ‘enhanced’ it sounds as if you are trying to hide something that you believe to be horrible and that you’re ashamed of… and that was a disastrous choice.”

Only the politically correct, it seems, would imagine that there was anything shameful or dishonorable about torturing a naked prisoner, tied helplessly to a chair or bolted to the floor.

And talking about the temper of the times, recently yet another judge from the Southern District of New York introduced a new rationale for torture, one that, even in the darkest days of the Bush administration, had not been publicly spoken, much less authoritatively explained from the federal bench. At the sentencing of Ahmed Khalfan Ghailani, the sole Guantanamo detainee to be tried in a federal court (for his role in the bloody 1998 bombings of U.S. embassies in Kenya and Tanzania), the judge, Lewis Kaplan, made it his business to opine about torture.  During the trial, he had refused to let the government’s star witness testify.  His grounds: only through Ghailani’s torture had investigators been able to identify that witness who was thus “fruit of the poisoned tree” and constitutionally prohibited from taking the stand. For this, he was embraced as a hero by civil libertarians, myself included, and reviled by conservatives and war-on-terror hawks.

Convicted on one of 284 counts, Ghailani was sentenced to life without parole. During his sentencing, Judge Kaplan suddenly took off the gloves, to use a phrase much loved by those in favor of “enhanced interrogation techniques” in the Bush years.  Specifically, he went out of his way to undercut any moral (as opposed to strictly legal) objections to the torture of detainees in American custody. He said:

“I have not previously expressed any opinion as to whether Mr. Ghailani’s treatment by the United States was illegal and I do not do so now. That question is not before me.  What I will say is this: Whatever Mr. Ghailani suffered at the hands of the CIA and others in our government, and however unpleasant the conditions of his confinement, the impact on him pales in comparison to the suffering and the horror that he and his confederates caused.  For every hour of pain and discomfort that he suffered, he caused a thousand-fold more pain and suffering to entirely innocent people.”

From a well-respected member of the federal bench, that statement represented an under-reported benchmark in American legal history. In a few carefully chosen words, Kaplan moved the arguments in favor of torture out of the context of gaining actionable intelligence (however mythical that might be in torture cases) and into the context of revenge.  In so doing, he displayed a startling willingness to throw away enduring normative restraints on the exercise of power over those incapable of resisting, restraints that had previously seemed inseparable from American culture and the American legal system.

No longer on the bench, Mukasey had explicitly justified the torture of 9/11 mastermind Khalid Sheikh Mohammed on the grounds that the pain his interrogators inflicted disgorged invaluable information for stopping future attacks on Americans.  Judge Kaplan took Mukasey several steps further, by implying from the bench that no one could morally object to American interrogators torturing a terror suspect, not because he offered actionable intelligence, but simply because of the terrible crimes he was, at the time, alleged to have committed.

Enemy Creep

It has been a persistent worry of civil libertarians that violations of the rights of non-citizens would eventually contaminate the ways citizens are treated, too; that a process of “enemy creep” would, in the end, result in the Guantanamo-ization of American terrorism suspects.

When rights were first denied to captives at Guantanamo Bay, the Bush administration argued that a prison in Cuba should not be considered subject to the constitutional principles that apply to Americans everywhere or to anyone within the territorial boundaries of the U.S.  It is, however, quite another matter, as in the King hearings, to single out Muslims or others in our midst as potential terrorists and then to argue that when arrested — even if they are U.S. citizens or captured or tried on U.S. soil — they should be denied the protections of U.S. law.

At the moment, the most alarming example of “enemy creep” can be found in the case of Bradley Manning, the U.S. Army private who allegedly downloaded hundreds of thousands of classified documents from Army computer systems and turned them over to WikiLeaks.  He is now being held on 24 charges in 23-hour-a-day solitary confinement in a brig at Quantico Marine Base in Virginia, while awaiting a court martial slated to begin later this spring.

There, among other punitive forms of treatment, he has reportedly been denied his clothes at night (though he is now apparently allowed to sleep in a coarse, tear-proof gown), supposedly as a form of self-protection. In captivity, nakedness, as the infamous abuses at Iraq’s Abu Ghraib prison demonstrated, is above all a form of humiliation, and often the first step towards physical and sexual abuse, including torture.  Manning, neither Muslim nor accused of terrorism, is nonetheless clearly considered by his captors an enemy of the nation, a traitor.  As a result, he is being kept under conditions which should make Americans take note of the blurring of, and crossing of, previously sacrosanct lines and the dismantling of long-established rights when it comes to defining and punishing “the enemy.” Though no jihadi terrorist, Manning, too, is being punished before being tried for the crime of threatening national security.

In a recent press conference, President Obama professed to find nothing legally or morally objectionable about such punishment without trial.  The Pentagon, he said, had assured him that “the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards,” adding that “[s]ome of this has to do with Private Manning’s safety.”  (State Department spokesperson P.J. Crowley, who had publicly criticized the Pentagon’s handling of Manning, which led to that question about him at the press conference, was soon after forced out of his job.)  Perhaps we are to believe that, according to the standard put forward by Judge Kaplan, however abusive the conditions of Manning’s confinement, the impact on him pales in comparison to the suffering and the horror he is alleged to have caused.

Thanks to Mukasey, Kaplan, King, those overseeing the treatment of Manning, and others, the embrace of cruel standards when it comes to alleged enemies of the state is gaining traction.  These officials and former officials seem to be part of a process, remarkably uncommented upon, that is turning previously unthinkable rhetoric into normal discourse and intolerance into a rationale for challenging the rights of anyone accused of violating the country’s security.

Perhaps we should consider the King hearings and the ever more extreme statements of a growing cadre of well-respected figures as an omen.  At an increasingly rapid pace, the boundaries of acceptable civil discourse are being crossed and rights in America are being tossed away — at least when it comes to national security issues.  Today, even with a constitutional lawyer as president, fear continues to cow those who have the power to make a difference.

Karen Greenberg is the executive director of the New York University Center on Law and Security, the author of The Least Worst Place: Guantanamo’s First One Hundred Days, and editor of The Torture Debate in America. Brian Chelcun, CLS researcher, contributed to the research for this piece. To listen to Timothy MacBain’s latest TomCast audio interview in which Greenberg discusses the new sense of empowerment among torture supporters in America, click here, or download it to your iPod here.

This article originally appeared on TomDispatch.com.

Copyright 2011 Karen Greenberg