What Al Qaeda Couldn't Defeat: The Military-Political Bureaucracy

A new book presents a new reason for America's failure to successfully prosecute terror suspects at Guantanamo Bay: bureaucratic mindlessness.

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"It's a very tricky theme to play out politically," law professor and longtime Obama devotee Geoffrey Stone is quoted saying without a trace of irony or regret near the end of The Terror Courts: Rough Justice At Guantanamo Bay, Jess Bravin's excellent new book. (Read an excerpt here.) The book focuses on the epic and continuing failure of America's military tribunals to process suspects following the terrorist attacks of September 11, 2001. "You are asking people to be better than they have to be."

It's a quote that could be the epitaph for the whole disgraceful affair. At nearly every step of the way, for more than 11 years, our elected officials, military leaders, and judges have failed or refused to be "better than they have to be" when it comes to the treatment of the detainees. "You've got to be kidding me," then-Attorney General John Ashcroft says prophetically, early in Bravin's book. When Ashcroft comes off as a Wise Man you know something is terribly amiss.

Indeed, over and over, when faced with a moral or legal choice as to how to proceed, our government officials chose poorly-- violating foreign and domestic law, precluding civilian trials, sabotaging our own national security, stifling internal dissent, confounding our allies, rewarding bureaucratic mindlessness, and setting up the vaunted military tribunals to fail in a hundred different ways which, of course, they have in the 4,212 days since the Twin Towers fell.  

Which is why you should read this book now, while the hunger strike at Guantanamo Bay is growing. You should read it now, while there is a pending request by the Pentagon to spend another $49 million for a new prison on Cuba. You should read it now, while John Yoo is still the go-to guy for quotes about interrogations, and while Senators John McCain and Lindsey Graham, crows on a wire, are still offering up terrible advice about prosecuting detainees.

Three thousand innocent people died on September 11, 2001. We invaded two nations because of it. We lost thousands more in the name of protecting ourselves and killed tens of thousands of people in the Middle East. All of us have lost vital freedoms in the name of national security. And yet, as Bravin reminds us, even 9/11 wasn't tragic enough to jolt the Pentagon and Justice Department and CIA and DIA into avoiding their timeless turf wars.

Come with me to page 100, where the Defense Intelligence Agency--in the form of "a reservist from Chicago, a cop in civilian life named Dick Zuley," writes Bravin--is stonewalling Marine Lt. Col. Stuart Couch, a military prosecutor, over suspect Mohamedou Ould Slahi. When Couch asks for access to "personnel and records" on the case, Zuley tells him, and thus another arm of the government of the United States, to buzz off. Slahi was never prosecuted because he was tortured. And the information he provided was evidently not credible.

Come with me to page 121, where Bravin recounts some of the reasons why "relations between the Department of Defense and the Justice Department remained poor" throughout this period (and, of course, into today as well). "Communicating with the Justice Department was 'a one-way street,'" a tribunal official and Navy officer told Couch. "'We tell them what we know, and they nod their heads. They've given us nothing.' Even the FBI's witness interview summaries," Bravin writes, "known by their form number as 302s, were off limits."   

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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, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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