Part 55 (1/2)

* The court proceedings against the so-called Blind Sheikh, Omar Abdel Rahman, who conspired to destroy the World Trade Center in 1993, revealed almost all the U.S. government knew about al-Qaida at the time. To comply with standard criminal procedures in U.S. courts, Andrew McCarthy, the chief prosecutor on that case, was required to turn over to defense attorneys a list of two hundred possible coconspirators. This told al-Qaida which of its members had been compromised and indicated where U.S. intelligence had gleaned its information. Bin Laden reportedly was reading the list several weeks later in Sudan. He must have been shaking his head in contemptuous wonder at how effectively the United States was a.s.sisting him in his deadly jihad. The court proceedings against the so-called Blind Sheikh, Omar Abdel Rahman, who conspired to destroy the World Trade Center in 1993, revealed almost all the U.S. government knew about al-Qaida at the time. To comply with standard criminal procedures in U.S. courts, Andrew McCarthy, the chief prosecutor on that case, was required to turn over to defense attorneys a list of two hundred possible coconspirators. This told al-Qaida which of its members had been compromised and indicated where U.S. intelligence had gleaned its information. Bin Laden reportedly was reading the list several weeks later in Sudan. He must have been shaking his head in contemptuous wonder at how effectively the United States was a.s.sisting him in his deadly jihad.1

* In 1780, George Was.h.i.+ngton tried a spy linked to Benedict Arnold before a board of inquiry that was essentially a military commission. The use of military commissions by the United States government continued through the Indian Wars and the Mexican-American War. During the Civil War, military commissions tried more than two thousand cases. During World War II and the months After, thousands of prisoners were tried before commissions in Germany and j.a.pan for ”terrorism, subversive activity, and violation of the laws of war.” In 1780, George Was.h.i.+ngton tried a spy linked to Benedict Arnold before a board of inquiry that was essentially a military commission. The use of military commissions by the United States government continued through the Indian Wars and the Mexican-American War. During the Civil War, military commissions tried more than two thousand cases. During World War II and the months After, thousands of prisoners were tried before commissions in Germany and j.a.pan for ”terrorism, subversive activity, and violation of the laws of war.”3

* One of the dubious privileges of serving in government in the information age is the increasing number of lawsuits in which public officials are named. Many are from folks looking to make a name or some money for themselves. One lawsuit alleged that the 9/11 attacks were a carefully orchestrated plot hatched at the highest levels of the U.S. government. It claimed that because I supposedly had foreknowledge that a plane was going to hit the Pentagon, I was legally liable for not ordering the evacuation of the building earlier. The many dozens of lawsuits are as ludicrous as they are time consuming and expensive. One of the dubious privileges of serving in government in the information age is the increasing number of lawsuits in which public officials are named. Many are from folks looking to make a name or some money for themselves. One lawsuit alleged that the 9/11 attacks were a carefully orchestrated plot hatched at the highest levels of the U.S. government. It claimed that because I supposedly had foreknowledge that a plane was going to hit the Pentagon, I was legally liable for not ordering the evacuation of the building earlier. The many dozens of lawsuits are as ludicrous as they are time consuming and expensive.

Future Chief Justice John Roberts was on the U.S. Court of Appeals for the District of Columbia Circuit when Hamdan's case came to the appellate level in July 2005. He and the two other judges on a three-judge panel (one a Clinton appointee) unanimously had held that military commissions were legitimate forums to try enemy combatants, because they were authorized by Congress as part of the Articles of War, which are now part of the Uniform Code of Military Justice. Moreover, the court also noted that al-Qaida and its members were not covered under the terms of the Geneva Conventions, and that even if they were, Hamdan could not as an individual enforce the treaty in U.S. courts. Roberts had to recuse himself in the Supreme Court decision because of his earlier involvement in the case. Five-a bare majority-of the members of the Court he would lead voted to overturn Roberts' earlier decision. Future Chief Justice John Roberts was on the U.S. Court of Appeals for the District of Columbia Circuit when Hamdan's case came to the appellate level in July 2005. He and the two other judges on a three-judge panel (one a Clinton appointee) unanimously had held that military commissions were legitimate forums to try enemy combatants, because they were authorized by Congress as part of the Articles of War, which are now part of the Uniform Code of Military Justice. Moreover, the court also noted that al-Qaida and its members were not covered under the terms of the Geneva Conventions, and that even if they were, Hamdan could not as an individual enforce the treaty in U.S. courts. Roberts had to recuse himself in the Supreme Court decision because of his earlier involvement in the case. Five-a bare majority-of the members of the Court he would lead voted to overturn Roberts' earlier decision.

* That first case, That first case,Hamdi v. Rumsfeld, was brought on behalf of Yaser Esam Hamdi, a Saudi national born in Louisiana and, therefore, an American citizen. After his capture in Afghanistan he was transferred to the Navy brig in Norfolk, Virginia. His lawyers challenged the government's right to hold him as an enemy combatant without a civilian criminal charge. The Supreme Court upheld that right, but ruled that he must be given an administrative process to enable him to contest his designation as an enemy combatant. On the same day the Supreme Court decided Hamdi's case, it also issued a ruling in was brought on behalf of Yaser Esam Hamdi, a Saudi national born in Louisiana and, therefore, an American citizen. After his capture in Afghanistan he was transferred to the Navy brig in Norfolk, Virginia. His lawyers challenged the government's right to hold him as an enemy combatant without a civilian criminal charge. The Supreme Court upheld that right, but ruled that he must be given an administrative process to enable him to contest his designation as an enemy combatant. On the same day the Supreme Court decided Hamdi's case, it also issued a ruling in Rasul v. Bush Rasul v. Bush. In Rasul, Rasul, the Supreme Court overturned prior precedents and determined that the detainees in Guantanamo were in fact ent.i.tled access to American courts. Though we were not required to release any of the detainees because of these cases, the writing on the wall indicated that the Supreme Court would, for the first time, a.s.sert judicial authority over the Guantanamo base and the men held there, despite the facts that they were not U.S. citizens and that they were being held outside the United States. the Supreme Court overturned prior precedents and determined that the detainees in Guantanamo were in fact ent.i.tled access to American courts. Though we were not required to release any of the detainees because of these cases, the writing on the wall indicated that the Supreme Court would, for the first time, a.s.sert judicial authority over the Guantanamo base and the men held there, despite the facts that they were not U.S. citizens and that they were being held outside the United States.

* Despite Congress's effort to limit the courts' role in prosecuting the war on terror with the Military Commissions Act (MCA), the courts again would not agree, rejecting the Congress's right even to set practical limits on the enemy's access to courts in wartime. In the 2008 case of Despite Congress's effort to limit the courts' role in prosecuting the war on terror with the Military Commissions Act (MCA), the courts again would not agree, rejecting the Congress's right even to set practical limits on the enemy's access to courts in wartime. In the 2008 case of Boumediene v. Bush Boumediene v. Bush, the Supreme Court's majority invalidated much of the MCA-After the Court had suggested the administration and the Congress pa.s.s such a bill two years earlier in Hamdan Hamdan. Dissenting Chief Justice Roberts aptly called the perplexing Boumediene Boumediene decision a ”const.i.tutional bait and switch.” decision a ”const.i.tutional bait and switch.”18

* In 1998, a Spanish magistrate sought the extradition from Britain of Augusto Pinochet, Chile's former dictator, on charges of committing torture. Pinochet was visiting London for medical treatment. The underlying rationale was that Chile, though a modern, advanced democracy, was incapable of holding its own former officials to account, so therefore a random foreign court (which happened to be in Spain) could do so. Appallingly, Britain's House of Lords bowed to this notion of universal jurisdiction and approved Pinochet's transfer to Spain to stand trial. But before the transfer to Spain occurred, British officials allowed Pinochet to return to Chile to attend to his frail health. In 1998, a Spanish magistrate sought the extradition from Britain of Augusto Pinochet, Chile's former dictator, on charges of committing torture. Pinochet was visiting London for medical treatment. The underlying rationale was that Chile, though a modern, advanced democracy, was incapable of holding its own former officials to account, so therefore a random foreign court (which happened to be in Spain) could do so. Appallingly, Britain's House of Lords bowed to this notion of universal jurisdiction and approved Pinochet's transfer to Spain to stand trial. But before the transfer to Spain occurred, British officials allowed Pinochet to return to Chile to attend to his frail health.

* For example, according to one UN investigator, unmanned air strikes ”may well violate international humanitarian law and international human rights law”-including strikes that reportedly have been personally approved by President Obama. For example, according to one UN investigator, unmanned air strikes ”may well violate international humanitarian law and international human rights law”-including strikes that reportedly have been personally approved by President Obama.22

* After serving in the Department of Defense general counsel's office, Jack Goldsmith moved to the Justice Department, where he became a.s.sistant attorney general of the Office of Legal Counsel (OLC)-the attorney who advises the U.S. government as to what is lawful and what is not. He went on to write The After serving in the Department of Defense general counsel's office, Jack Goldsmith moved to the Justice Department, where he became a.s.sistant attorney general of the Office of Legal Counsel (OLC)-the attorney who advises the U.S. government as to what is lawful and what is not. He went on to write The Terror Presidency: Law and Judgment Inside the Bush Administration, Terror Presidency: Law and Judgment Inside the Bush Administration, a valuable history of the unprecedented legal challenges that faced the Bush administration. a valuable history of the unprecedented legal challenges that faced the Bush administration.

* Article 98 refers to part of the Rome Statute, which established the International Criminal Court. The article allows those nations that are members of the ICC to enter into separate bilateral agreements with other nations that do not want their citizens subject to the ICC. Article 98 refers to part of the Rome Statute, which established the International Criminal Court. The article allows those nations that are members of the ICC to enter into separate bilateral agreements with other nations that do not want their citizens subject to the ICC.

* However, it should be noted that even the Patriot Act, which pa.s.sed with bipartisan support in Congress in 2001, became controversial as time went on. An increasing number of legislators seemed to see it and other national security subjects as potent political issues. It is not unreasonable to imagine that the same could well have happened with detainee legislation. However, it should be noted that even the Patriot Act, which pa.s.sed with bipartisan support in Congress in 2001, became controversial as time went on. An increasing number of legislators seemed to see it and other national security subjects as potent political issues. It is not unreasonable to imagine that the same could well have happened with detainee legislation.

* In response to 9/11, I had worked with Congress to create the U.S. military's Northern Command as a headquarters in Colorado Springs to defend the American homeland. NORTHCOM's first combatant commander, Air Force General Ralph ”Ed” Eberhart, stood up the command hub to a.s.sist in responding to security threats in the northern hemisphere. At the time it was established, we were most concerned about defending against terrorist attacks, but we also had antic.i.p.ated the need to respond to natural disasters. With Katrina, the new headquarters faced its first major test. In response to 9/11, I had worked with Congress to create the U.S. military's Northern Command as a headquarters in Colorado Springs to defend the American homeland. NORTHCOM's first combatant commander, Air Force General Ralph ”Ed” Eberhart, stood up the command hub to a.s.sist in responding to security threats in the northern hemisphere. At the time it was established, we were most concerned about defending against terrorist attacks, but we also had antic.i.p.ated the need to respond to natural disasters. With Katrina, the new headquarters faced its first major test.

* With congressional approval, I had created the new position of a.s.sistant Secretary of Defense for Homeland Defense shortly After 9/11 for the purpose of managing the DoD response in the event of a similar terrorist attack or a catastrophic natural disaster in the United States. With congressional approval, I had created the new position of a.s.sistant Secretary of Defense for Homeland Defense shortly After 9/11 for the purpose of managing the DoD response in the event of a similar terrorist attack or a catastrophic natural disaster in the United States.

* I thought a better approach to strengthening the intelligence community was not to create a duplicative bureaucracy in the DNI, as the 9/11 Commission had recommended, but to give the CIA director more authorities and support as the coordinating head of the U.S. intelligence community. In October 2004, Congressman Duncan Hunter asked chairman of the Joint Chiefs d.i.c.k Myers his opinion on the DNI. As a military officer who had obligations to Congress to give his independent views when asked, even if they differed from the administration's, Myers gave his opinion that the proposed DNI authorities over DoD-related intelligence agencies were problematic. When Andy Card found out about Myers' response, he called me and said, ”General Myers' letter on the intel bill is going to cost the President the election.” His comment reflected a lack of understanding of senior military officers' obligations. It also reflected a lack of understanding of the political landscape: President Bush won reelection by a comfortable margin just two weeks later. I thought a better approach to strengthening the intelligence community was not to create a duplicative bureaucracy in the DNI, as the 9/11 Commission had recommended, but to give the CIA director more authorities and support as the coordinating head of the U.S. intelligence community. In October 2004, Congressman Duncan Hunter asked chairman of the Joint Chiefs d.i.c.k Myers his opinion on the DNI. As a military officer who had obligations to Congress to give his independent views when asked, even if they differed from the administration's, Myers gave his opinion that the proposed DNI authorities over DoD-related intelligence agencies were problematic. When Andy Card found out about Myers' response, he called me and said, ”General Myers' letter on the intel bill is going to cost the President the election.” His comment reflected a lack of understanding of senior military officers' obligations. It also reflected a lack of understanding of the political landscape: President Bush won reelection by a comfortable margin just two weeks later.12

* The Defense Department made some well-intentioned but ill-fated attempts to compete in this arena. CENTCOM, for example, working closely with the Iraqi government and the U.S. emba.s.sy, sought to provide accurate information to the Iraqi people in the face of an aggressive campaign of disinformation by providing accurate news stories for local Iraqi papers. Yet when it was reported that the Pentagon had hired a contractor who in turn compensated our Iraqi allies for printing truthful stories, critics and the press portrayed this as inappropriate government propaganda. The program was immediately brought to a halt. The Defense Department made some well-intentioned but ill-fated attempts to compete in this arena. CENTCOM, for example, working closely with the Iraqi government and the U.S. emba.s.sy, sought to provide accurate information to the Iraqi people in the face of an aggressive campaign of disinformation by providing accurate news stories for local Iraqi papers. Yet when it was reported that the Pentagon had hired a contractor who in turn compensated our Iraqi allies for printing truthful stories, critics and the press portrayed this as inappropriate government propaganda. The program was immediately brought to a halt.

* Human Rights Watch reported that ”Uzbek government forces killed hundreds of unarmed people who partic.i.p.ated in a ma.s.sive public protest in the eastern Uzbek city of Andijan. The scale of this killing was so extensive, and its nature was so indiscriminate and disproportionate, that it can best be described as a ma.s.sacre.... One group of fleeing protesters was literally mowed down by government gunfire.” Amnesty International called the uprising a ”ma.s.s killing of civilians” and denounced the Uzbek government's ”indiscriminate and disproportionate use of force.” Human Rights Watch reported that ”Uzbek government forces killed hundreds of unarmed people who partic.i.p.ated in a ma.s.sive public protest in the eastern Uzbek city of Andijan. The scale of this killing was so extensive, and its nature was so indiscriminate and disproportionate, that it can best be described as a ma.s.sacre.... One group of fleeing protesters was literally mowed down by government gunfire.” Amnesty International called the uprising a ”ma.s.s killing of civilians” and denounced the Uzbek government's ”indiscriminate and disproportionate use of force.”10

* Indeed, this is exactly what happened. The Uzbek minister of defense, who had helped forge military-to-military ties with our country since 2001, was put on trial and kept under house arrest. Gulyamov had been a staunch representative of Uzbek interests, but he was also a cooperative partner in America's efforts in Afghanistan. Indeed, this is exactly what happened. The Uzbek minister of defense, who had helped forge military-to-military ties with our country since 2001, was put on trial and kept under house arrest. Gulyamov had been a staunch representative of Uzbek interests, but he was also a cooperative partner in America's efforts in Afghanistan.