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The 9/11 Terror Cases

Name: The 9/11 Terror Cases
Author: Allan A. Ryan

Constitutional Challenges in the War against Al Qaeda

Allan A. Ryan

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The 9/11 Terror Cases

Constitutional Challenges in the War against Al Qaeda

Allan A. Ryan

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About This Book

The terrorist attacks of 9/11 are indelibly etched into our cultural memory. This is the story of how the legal ramifications of that day brought two presidents, Congress, and the Supreme Court into repeated confrontation over the incarceration of hundreds of suspected terrorists and "enemy combatants" at the US naval base in Guantánamo, Cuba. Could these prisoners (including an American citizen) be held indefinitely without due process of law? Did they have the right to seek their release by habeas corpus in US courts? Could they be tried in a makeshift military judicial system? With Guantánamo well into its second decade, these questions have challenged the three branches of government, each contending with the others, and each invoking the Constitution's separation of powers as well as its checks and balances.In The 9/11 Terror Cases, Allan A. Ryan leads students and general readers through the pertinent cases: Rasul v. Bush and Hamdi v. Rumsfeld, both decided by the Supreme Court in 2004; Hamdan v. Bush, decided in 2006; and Boumediene v. Bush, in 2008. An eloquent writer and an expert in military law and constitutional litigation, Ryan is an adept guide through the nuanced complexities of these cases, which rejected the sweeping powers asserted by President Bush and Congress, and upheld the rule of law, even for enemy combatants. In doing so, as we see clearly in Ryan's deft account, the Supreme Court's rulings speak directly to the extent and nature of presidential and congressional prerogative, and to the critical separation and balance of powers in the governing of the United States.

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Publisher

University Press of Kansas

Year

2015

ISBN

9780700621613

Topic

Droit

Subtopic

Droit public

CHAPTER ONE

Guantanamo

In early October 2001, on orders of President George W. Bush, American military forces invaded Afghanistan, augmented by a robust number of civilian operatives of the Central Intelligence Agency, and soon joined by some military units of the United Kingdom and other “coalition partners.” The immediate objective was to depose the Taliban, the country’s fundamentalist Islamist government and a protective host of the al Qaeda network as it planned and carried out the attacks of September 11. Al Qaeda was led by Osama bin Laden, whose stated objective was to rid the Arab world of Western influence. His followers were Muslims from many nations, some of whom had initially come together to repel, with American arms and aid, the Soviet Union’s invasion of Afghanistan in the 1980s and had maintained their cohesion despite the Soviet Union’s dissolution in 1991. Many of them were skilled in the construction and use of missiles, bombs, and other weapons, but they were not conventional military forces. Their strategy was terrorism—attacking targets, some of them military but many not, without warning. If this was war, the al Qaeda network acted with no regard at all for the international laws of war, formalized in the Geneva Conventions, that prohibit attacks on civilians and other noncombatants.

Al Qaeda operatives had detonated a truck bomb in the garage of New York’s World Trade Center in 1993, killing six and injuring more than a thousand, a crime for which several of them had been convicted in federal court in 1995 and sentenced to life imprisonment. That carnage, and their subsequent attacks on the US embassies in Tanzania and Kenya in 1998 and the Navy’s guided-missile destroyer USS Cole in Aden harbor in Yemen in 2000, had made al Qaeda well known to the US government, enough so that the Central Intelligence Agency had an office whose sole job was to find and kill bin Laden. Whether the administration of George Bush, inaugurated in January 2001, should have been more alert to signs that bin Laden was planning a major attack on the United States led to recriminations, some of it along partisan lines, in the wake of 9/11, but there was near-universal popular support for the invasion of Afghanistan and the destruction of al Qaeda.

Working cooperatively with anti-Taliban Afghan elements of the Northern Alliance and with its coalition partners, US forces succeeded in overthrowing the Taliban within a few months of the invasion and taking some of its fighters into custody, but getting at al Qaeda proved difficult. Bin Laden and his councilors were thought to be hiding in the almost impenetrable terrain along the Afghan-Pakistan border, undisturbed by Pakistan’s military, which supported the Taliban. Unwilling to confront that sometimes helpful but always uncertain ally, the US military offered lavish cash rewards to anyone in Afghanistan who turned over a member of the Taliban or al Qaeda. The locals produced captives with enthusiasm, but whether they were actually hostile combatants proved to be another question.

From a standing start, the United States in little more than four months had carried out a difficult military invasion of a mountainous and landlocked country halfway around the world and had held its position, however tenuously. The swiftness of the action and the elusiveness of al Qaeda created any number of challenges, but two were especially pressing. The military forces in Afghanistan had few places to hold those who had been captured on the battlefield or turned over for bounties. And, back home, US political and intelligence officials were desperately trying to figure out what al Qaeda was planning next. Both needs were to be answered in one of the most unlikely places imaginable: the US Naval Base at Guantanamo Bay, in Cuba.

The United States knew Guantanamo well. In 1903, when Cuba had gained its independence from Spain after the Spanish-American war, it gave the United States a perpetual lease of a naval fueling station on its southeast coast. The United States had been there ever since, notwithstanding Fidel Castro’s overthrow of the government in 1959 and his subsequent alliance with the Soviet Union. The base was an isolated American enclave run by the US Navy and stoutly fenced off from the rest of this Communist country. There were no diplomatic relations, no trade, no direct communications between the two governments and so no US worries about bothersome interference. Where Guantanamo was concerned, the American policy was simple: Castro didn’t like it, and America couldn’t care less. Apart from the Cuban Missile Crisis of 1962, when civilian dependents were evacuated from the base, nothing of great consequence happened there anyway. Most Americans knew Guantanamo, if they had heard of it at all, from the 1992 movie A Few Good Men, a court-martial drama starring Jack Nicholson.

How Gitmo, as it was commonly known in the military, became the centerpiece of the Bush administration’s war on terror is central to understanding the events of the post-9/11 years, for there three imperatives coalesced. First, Guantanamo could provide detention for the captives who were accumulating in Afghanistan, though its isolation and rudimentary facilities on an unfriendly island made it inferior to other military installations that were available, or could quickly be made so. But those other installations were within the United States or on the territory of governments that would assuredly take a distinct interest in any US plan to bring al Qaeda terrorists to their soil. Working out arrangements would take forever, if it could be done at all.

Guantanamo’s second advantage was that, situated in Cuba, it was beyond the jurisdiction of any American court. This was a critical concern to those in the president’s inner circle, because they had no intention of creating a conventional prisoner-of-war camp, operated in accordance with international law under the constraints of humane treatment imposed by the Geneva Conventions and monitored by the International Committee of the Red Cross. Gitmo would be a place where terrorists were to be interrogated, and rigorously. No federal judge would hear claims from the lawyers who would surely emerge to argue that detainees were being held unlawfully, or mistreated in violation of Geneva. In that respect, it could not have been better placed had it been on Saturn.

And third, Gitmo could become the tangible demonstration that the United States was winning the war on terrorism. Because it was closed, the Department of Defense could control all access and could determine what the world saw, or did not see. And what DoD wanted the world to see—though not too closely—was an American naval base full of captured terrorists.

These aspects of Guantanamo were crucial to the Bush administration in 2001 because it had no intention of following any rules, and it made no secret of that. Vice President Richard Cheney, to whom President Bush had delegated virtually complete authority to direct the government’s war on terror, told a Sunday morning TV audience five days after 9/11, “We have to work the dark side, if you will. Spend time in the shadows of the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion.” Cofer Black, chief of the CIA’s counterterrorism office, told a congressional hearing, “This [anti-terrorism policy] is a very highly classified area. All you need to know is that there was a before 9/11 and there was an after 9/11. After 9/11, the gloves come off.”

In the weeks after 9/11, an interagency task force was formed to determine how the United States should treat captured al Qaeda and Taliban operatives. Under the direction of Pierre-Richard Prosper, a State Department lawyer serving as Ambassador at Large for War Crimes Issues, lawyers and policymakers from Cabinet departments and executive agencies met repeatedly for serious discussions on developing rules by which the government could hold and interrogate prisoners. It was focused, it was knowledgeable, it was mindful both of its responsibilities and the limitations imposed by law.

And for that reason it was out of the loop. Its role was usurped by a small and far less visible knot of administration officials that came to be known informally as the “war council.” Cheney was its patron, and at its center was his counsel David Addington, little known outside the inner workings of the administration but widely respected and not a little feared within it. Addington was recognized as Cheney’s alter ego; when he spoke, he spoke for Cheney. The war council included John Yoo, the thirty-three-year-old deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, a former law clerk to Justice Clarence Thomas, on leave from the law faculty at the University of California at Berkeley. Yoo was an influential figure in the Federalist Society, the brain trust of the conservative legal movement, and an avid exponent of robust and untrammeled powers of the president, particularly in time of war.

Also on the war council was the man with direct access to the president, Alberto Gonzales, counsel to the president, a trusted advisor to George W. Bush from Bush’s days as governor of Texas. Next to Gonzales was his deputy, Timothy Flanigan, who had from 1990 to 1992 headed the Office of Legal Counsel in the administration of the president’s father, George H. W. Bush, and later a key player in Bush v. Gore, the Supreme Court case that settled the 2000 presidential election in favor of the younger Bush. John Rizzo, the CIA’s general counsel, and William ( Jim) Haynes, general counsel at the Department of Defense and Addington’s successor and protégé in that role, worked closely in this inner circle with its direct access to the Oval Office. For others with obvious responsibilities but more moderate views—Secretary of State Colin Powell and National Security Adviser Condoleezza Rice chief among them—the self-appointed war council had a simple solution. It ignored them.

This group, with Vice President Cheney, determined the administration’s response to 9/11 on matters of presidential authority and the gathering of intelligence. Memos to the president were signed by Gonzales, but they had been drafted by Addington and Yoo, who faced no resistance from the inexperienced and compliant Gonzales. Their animating principle was that the president had complete authority to do what he thought necessary— whatever he thought necessary—to protect the country from terrorism. It was an authority that nothing in the Constitution could restrict, an authority that needed no assent, much less could brook any interference, from the Congress or the judiciary.

In this regard, the war council had the benefit of a significant congressional action. A few days after 9/11, anxious to go on record in response to the attacks, Congress had approved, nearly unanimously, a resolution known as the Authorization for the Use of Military Force. The AUMF declared that the president “is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

The AUMF was clearly intended to authorize the invasion of Afghanistan in pursuit of Osama bin Laden, his al Qaeda network, the Taliban that had protected it, and anyone else behind the 9/11 attacks or the continued protection of them. But the war council and Cheney did not understand “military” to be a qualification on the president’s authority. The president was the commander in chief. Anything he did in the interests of protecting the nation was “military.” Nor did it read “the attacks of September 11, 2001” as a qualification. The AUMF was intended to “prevent any future acts” of terrorism against the United States and so anything aimed at countering terrorism was within its scope. Reading the AUMF in this way was not difficult: Addington and Yoo had drafted it. No act of Congress was necessary for presidential action, nor could any act of Congress constrain it, for the war council’s unshakeable belief was that presidential authority in war was by definition whatever the president wanted to do, regardless of congressional validation and despite any congressional objection. The AUMF, ostensibly a demonstration of congressional assent, instead underscored the sweeping breadth of the president’s authority.

On the other hand, the Geneva Conventions could be a problem. Ratified by the United States and virtually every other country in the world, those four treaties, last revised and updated in 1949, laid out some of the most important international rules of warfare, protecting the sick and wounded on land and sea, prisoners of war, and civilians. The members of the war council, like many of the conservative theoreticians from whom they drew agreement and support, had little patience for international law and in fact openly disdained it. It was, to their way of thinking, a suspicious and threatening imposition of alien notions of what “law” should be that, if taken seriously, would restrict the authority of the United States to act according to its own Constitution.

Particularly problematic was the Third Geneva Convention, which requires that enemy combatants captured during international armed conflict be characterized as prisoners of war and, as such, treated humanely, with adequate food, shelter, clothing, and medical attention, even recreation. POWs can be interrogated, but they are under no obligation to give more than their name, rank, and serial number. If they refuse to give more, the treaty is explicit: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”

That obviously would not do. If the gloves were to come off, no member of al Qaeda, no Taliban operative, no detainee of any stripe could be heard to insist that he was protected from “unpleasant or disadvantageous treatment.” For the United States to renounce Geneva, to declare that it was no longer bound by such a universally accepted agreement, would be politically reckless, but the war council devised a way around this problem. Those captured in Afghanistan would simply be deemed to lie outside the protections of Geneva. From the time of the first Geneva Convention in 1864 through the latest revisions in 1949 and some additional protocols in the 1970s, their concern has always been armed conflict between military forces, and in particular the treatment accorded to combatants on the battlefield, combatants taken prisoner, and the civilians impacted by such conflict. The Conventions are not concerned with common criminals, with war’s looters and thieves, with freelance marauders and others who fight for their own ends, without state sponsorship.

Excluding members of al Qaeda from Geneva’s protections would thus be relatively easy. Al Qaeda was not a party to the Geneva Conventions, nor could it be, because Geneva was an agreement between nation states, which al Qaeda was not. Therefore, to this way of thinking, its members were not prisoners of war entitled to the protections reserved for combatants of the states who were parties to the treaty. The Taliban was a bit trickier, because it was the government of Afghanistan, which was a party to Geneva. But here too the war council had a workaround: Geneva includes within its protections “militias” and “volunteer corps”—somewhat dated terms that refer to what are now more commonly known as partisans, guerrillas, or insurgents who are not members of a nation’s actual armed forces but who fight under their supervision. In the Vietnam War, for example, in which the armed forces of the government of North Vietnam fought the forces of the government of South Vietnam, the Viet Cong were South Vietnamese fighters allied with the North against the South. But to claim the POW protections of the Geneva Convention, guerrillas or insurgents must look and act like combatants: they must wear distinctive uniforms or other visible insignia, be organized under a responsible commander, carry arms openly, and obey the laws of war themselves. Geneva thus protects combatants who behave as conventional armed forces and who can be readily identified when they are encountered or captured, while excluding unaffiliated fighters out only for their own gain or to settle personal scores.

Here the Taliban fell short, because they did not wear distinctive uniforms and paid no regard to the laws of war. Therefore, as the Addington-Yoo war council saw it, they were “unlawful” enemy combatants—a term that is not found in the Geneva Conventions but one that could plausibly describe the Taliban.

On February 7, 2002, President Bush, over the objections of Secretary of State Colin Powell, himself a career army officer and former chairman of the Joint Chiefs of Staff, signed a directive, drafted by Addington, declaring that neither the al Qaeda nor the Taliban captives were within the protections of Geneva. The directive did state that as a “matter of policy,” the United States “shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” But it did not elaborate on what treatment would be “consistent with the principles of Geneva” or the “extent” to which such treatment would be “appropriate” or “consistent with military necessity.”

Detainees began to arrive at Guantanamo on January 11, 2002. Staggering off a US Air Force cargo plane in which they had been chained to the fuselage for a fourteen-hour flight from Afghanistan, clad in bright orange jumpsuits, blindfolded and shackled, led stumbling past US Marines with rifles locked and loaded to a fenced holding area, the twenty arrivals hardly seemed like cutthroat terrorists. But Defense Secretary Donald Rumsfeld dispelled that notion in a news conference announcing their arrival. “I mean, these are people that would gnaw hydraulic lines in the back of a C-17 to bring it down. I mean, so this is—these are very, very dangerous people, and that’s how they’re being treated.” In another context, he called them simply “the worst of the worst.”

As events were later to reveal, however, those whom the government believed to be truly the worst of the worst were not sent to Guantanamo. They were sent to “black sites” operated by the Central Intelligence Agency in secret locations in Europe and Asia, subjected to years of “enhanced interrogations” that amounted to outright torture. Those sent to Guantanamo were for show. As more and more were sent there—some 537 in 2002, another 92 in the first three months of 2003—it became clear to their captors at Gitmo, and to the Bush administration in Washington, that most were foot soldiers or low-level followers, or travelers unlucky enough to have been scooped up by locals or seized out of personal animosity or family feuds, and turned over for bounty. Few of them had any significant intelligence value. In April 2003, fourteen months after his press conference as the “worst of the worst” were ...