This is the first of a three-part series on the legal aspects of the war on terror 10 years after the attacks of September 11, 2001. Part Two will focus upon the different ways in which the three branches of government responded to the challenges of the era. Part Three will offer an overview -- a terror law history -- of the past 10 years.
U.S. Army Military police escort a detainee to his cell in Naval Base Guantanamo Bay in 2002. / Reuters
Part One: Heroes and Goats
When political scientists and legal scholars talk about the impact of the events of 9/11 upon the "rule of law," they often speak in abstract terms, as if the constitutional mechanisms in place automatically crank from one gear to another depending upon external events. But nothing that followed from the rubble of the Pentagon and the World Trade Center was constitutionally inevitable. Each policy choice the United States made, each legal path it chose or had chosen for it, came from the hearts and minds of men and women, fallible creatures all, in most cases challenged as they had never been before in their professional lives.
Ten years later, as law and policy muddles through the messy aftermath of that awful day, as new actors emerge to replace the old ones, here are some of the people who distinguished themselves, for better or for worse, in shaping America's legal response to the War on Terror. History may not yet have fully rendered her judgments on these matters, but I have. The heroes deserve our praise; the goats our scorn. But all in their own way have brought us to where we are today.
Mark and Joshua Denbeaux. Father and son, lawyer and professor, who have tirelessly worked to chronicle the allegations against the detainees at Guantanamo Bay. They didn't just take the government's word for it. They looked through the U.S. military's own records to highlight the lack of proof evident against the vast majority of the men down there. Their scholarship played an important role in changing public perceptions about the prison and its functions.
Associate Justice of the U.S. Supreme Court Sandra Day O'Connor. Lady Justice, the Reagan appointee, was at her best in June 2004 when she wrote the first Supreme Court ruling checking President Bush's power to wage the war on terror. Here's the famous passage from Hamdi v. Rumsfeld:
In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.
James Comey and John Ashcroft. In the early days following 9/11, Attorney General John Ashcroft was best known for his theatrical press conferences in which he overhyped the arrests of the "20th Hijacker" (who wasn't) and the "dirty-bomber" (who wasn't). But he and his deputy James Comey make the "hero" list for standing up to their fellow Bush-era officials (see below) in that Washington hospital room in March 2004 with the nation's domestic surveillance program on the line.
U.S. District Judge Leonie M. Brinkema. She is the federal judge who presided over the conspiracy trial of Zacarias Moussaoui, so far the most important terror suspect tried in federal court after September 11, 2001. Judge Brinkema put up with a great deal of crap from the addled defendant, and from hapless prosecutors who nearly fumbled the case (remember Carla Martin?), but she delivered a sentencing trial that was both fair to Moussaoui and to the Justice Department.
Keith Allred and Peter Brownback. In December 2007, these military judges at Guantanamo Bay ruled in two separate cases that the Bush-era tribunals for terror detainees did not comply with the requirements of the Geneva Convention. The United States Supreme Court ultimately agreed. Brownback ultimately was removed from the case for his stand.
U.S. District Judge Joyce Hens Green. In January 2005, she issued one of the most memorable rulings of the post-9/11 period, one that has since been obscured by the dust of time. Judge Green called out military officials for their Orwellian examination of terror suspect Mustafa Ait Idr. U.S. officials accused Idr of associating with a "well-known" Al Qaeda operative -- but then refused to give Idr the name of the so-called "operative" when Idr asked. "How can I answer a question about whether I know someone or not," Idr asked his captors, "if you won't tell me who it is I am supposed to know?"
Charles Swift. The Navy lawyer who lost out on his promotion and was forced out of the service because he successfully represented detainee Salim Ahmed Hamdan in federal court and because he later opposed the Military Commissions Act of 2006. Swift was correct both times -- the Supreme Court stuck down the law and ruled in Hamdan's favor. This military man acted with great honor and integrity.
Chief U.S. District Judge William Young. His remarks to Richard Reid, the so-called "shoe bomber," will live long past our time. As Reid was being sentenced to life in prison for trying to blow up an airplane with his shoe, he talked back to Judge Young. "I am at war with your country," Reid shouted in court. "You are not an enemy combatant," Judge Young replied, "you are a terrorist. You are not a soldier in any army, you are a terrorist. To call you a soldier gives you far too much stature. You are a terrorist and we do not negotiate with terrorists. We hunt them down one by one and bring them to justice."