This story first appeared on the TomDispatch website.
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 US 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 a 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 percent 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 US 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.