Justice in a Time of Terror: Heroes and Goats

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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.

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U.S. Army Military police escort a detainee to his cell in Naval Base Guantanamo Bay in 2002. / Reuters

Part One: Heroes and Goats

9-11 Ten Years Later

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.

The Heroes

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." 

Zacarias Moussaoui's federal jury in Alexandria, Virginia. These folks endured a long 2006 trial of a defendant who was so obnoxious that even Khalid Sheik Mohammed didn't want him part of the 9/11 bomb plot. Moussaoui practically begged jurors to recommend a death sentence for him so that he could become a martyr. No dice, said the jury. Moussaoui is currently serving a life sentence without parole at the Supermax federal prison near Florence, Colorado, where he is in solitary lockdown 23 hours a day.

Sgt. Joe Darby. He's the whistleblower who first told military investigators about the torture and abuse at the Abu Ghraib prison in Baghdad. "I've always had a moral sense of right and wrong. And I knew that you know, friends or not, it had to stop," Darby told Anderson Cooper in 2006. 

The Goats

Alberto Gonzales and Andrew Card. Like bagmen for the Mob, these two then-White House officials showed up at John Ashcroft's hospital room on the night of March 10, 2004, seeking to get the ailing attorney general to sign off on an extension of the National Security Agency's secret "terrorist surveillance" program. When they were caught, by deputy AG James Comey, they later pretended they were there just to wish Ashcroft well.

Lynndie England and Charles Graner. As a technical matter it's surely relevant that these two were said to be following "orders" at the Abu Ghraib prison in Baghdad. As a practical matter, there is no excuse for the way in which they and others treated those Iraqi prisoners. If the Abu Ghraib scandal marks the nadir of America's legal response to the war on terror, England and Graner are at the heart of it, symbols of so much of what went wrong.

Jose Rodriguez. The CIA official who unlawfully ordered the destruction of evidence -- including videotapes of secret interrogation sessions -- never had to publicly answer for his conduct (the Justice Department announced last year that it would not prosecute anyone involved in the scandal). But guess what? Rodriguez is going to make money off his ignominy. He's writing a book that will be published in 2012 in which he'll reportedly claim that torture led directly to the killing of Osama bin Laden.

Dick Cheney, David Addington, and John Yoo. These former Bush officials, architects of the nation's torture policies, remain adamantly unaccountable for and unrepentent about the damage they caused to the rule of law and America's standing in the world. As George Will noted Sunday, Cheney's memoirs were remarkably devoid of any apologies (for the war in Iraq, for example) and John Yoo, in a recent interview hawking his book, refused to say he would have done things differently when drafting the so-called 'torture memos."   

Eric Holder. The current Attorney General failed to deliver on his one big chance to bring 9/11 plotter Khalid Sheik Mohammed to a federal trial -- even though hundreds of other terror suspects both before and after 9/11 have been successfully prosecuted in civilian court. Ever since, his Justice Department and the White House have kowtowed to fear-mongering from conservatives in Congress, who practically fell over themselves praising President George W. Bush's similar charging decisions in terror cases.

Sen. Lindsey Graham (R- South Carolina). It's long past time the former military prosecutor was called to account for his record. He has consistently been on the wrong side of the law, and of history, when it comes to the tribunal rights of the detainees at Guantanamo Bay. Without his meddling, most notably in helping to pass the failed Detainee Treatment Act of 2005 and the failed Military Commissions Act of 2006, it's possible the Gitmo tribunals long ago would have started churning out verdicts.

Charles "Cully" Stimson and Liz Cheney. He's the former Bush official who, in 2007, infamously threatened the private law firms who were dutifully supplying lawyers pro bono to some of the detainees (who of course could not pay for their own defense). He had to resign in disgrace. She's the daughter of the former vice-president who, in 2010, blasted as the "al-Qaeda Seven" a group of Justice Department lawyers who had once, as private attorneys working for law firms, helped represent some of the detainees in federal court cases. History will not judge this pair kindly.

President Barack Obama. In the interest of political comity, he told the nation in 2009 that he wanted to "look forward, not back" when it came to the Bush administration's torture policies. So there was no national "Truth Commission." There were no congressional hearings. There were no criminal prosecutions. No one was held to account. And what did the president receive for this controversial display of forgiveness? Congressional Republicans (and some Democrats) voted to block the Justice Department from transfering terror detainees out of Gitmo so they could be tried in federal civilian court.

Jose Padilla's federal jury in Miami. At first, Padilla was the "dirty bomber," a terror suspect so dangerous that he could not be given his constitutional rights as an American citizen. When the courts called the Bush Administration's bluff, federal prosecutors tried Padilla instead on terror conspiracy charges (from activity that occurred well before 9/11) in South Florida. After a three-month long trial in which the government presented a woefully weak case against Padilla, a Miami jury deliberated less than a day and a half before convicting him and his co-defendants.

The Federal Bureau of Investigation. Taking undue advantage of the extraordinarly broad powers granted to it under the USA Patriot Act and other measures, the FBI in the years immediately following 9/11 inappropriately tracked domestic advocacy groups like PETA and Greenpeace. Worse, according to a 2010 report by the Office of Inspector General, G-men were sent on "make work" missions during "slow" periods of work.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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