Ordered Liberty

KSM’s Prison Communiqués: Enemy Combatants Back to Being Criminal Defendants

I was invited to provide commentary Tuesday night on Megyn Kelly’s Fox News program (“The Kelly File”) regarding the all too predictable but nevertheless appalling news that Khalid Sheikh Mohammed — al Qaeda heavyweight, 9/11 mastermind, decapitator of Daniel Pearl, jihadist warring against America for the better part of two decades, and murderer of nearly 3,000 of our fellow citizens — has been permitted to transmit propaganda out of the prison camp at Guantanamo Bay. The interview is posted on Megyn’s site here — I respond to contentions made by the first guest, defense lawyer and former JAG Charles Swift.

More needs to be said on this. Let’s first consider the insanity of permitting enemy combatants to communicate with the outside world while the war ensues — and though the administration rarely speaks or acts as if there is a war going on, and while the public pays it scant attention, we still have forces in harm’s way pursuant to a congressional authorization of combat operations; we are still killing and capturing enemy operatives pursuant to the laws of war, which is only permissible during wartime.

The rationale for shifting, post-9/11, from a law-enforcement counterterrorism paradigm to a war-footing prominently included the recognition that we had to regard as a military enemy, not as mere criminal defendants, the members of an international terrorist network that (a) had declared war against the U.S.; (b) was supported by rogue governments; (c) focused its jihad on American military, political, economic and civilian targets; and (d) was capable of projecting force on the scale of the 9/11 attacks. Contrary to popular wisdom, that remains a salient distinction.

Criminal defendant detainees in the civilian justice system are arrested only after being accused of crimes, and are presumed innocent of the charges. Thus, in the pretrial phase, they have an array of rights even if they are denied bail — and bail may only be denied based on risk-of-flight or convincing proof that they pose a danger to potential witnesses or the community at large. These pretrial rights include liberal opportunities to meet with counsel for trial-defense preparation, and to have contact with others in the outside world that approximates what accused people who are at liberty enjoy. (This changes if and when a defendant is found guilty at trial. Incarcerated convicts have significantly fewer rights and privileges than pretrial detainees.)

To the contrary, enemy combatant detainees do not have to be accused of prosecutable offenses in order to be lawfully detained, and they are generally denied contact with the outside world. The reason is straightforward. While the object of the civilian criminal justice system is to provide due process to the accused so that civil rights are protected and trial outcomes have integrity, the object of war is to defeat the enemy. Consequently, while we owe enemy combatants basic humane treatment, due process concerns are not a high priority. After all, the rationale for detaining enemy combatants has little or nothing to do with prosecution of a criminal case — indeed, there need be no criminal case, and in most instances there is not one. The purpose of detaining enemy combatants is to deplete the assets of the enemy and thus achieve victory more rapidly and with less bloodshed.

Moreover, even when enemy combatants have committed provable war crimes that qualify for trial by military commission, the priority in wartime remains victory for the nation. As long as the war ensues, due process for the war criminal is never the priority because prosecuting war crimes, even when the accused is a high-ranking enemy operative, is far less important than victory in the war. Due process rules governing discovery and testimony can result in the public revelation of our intelligence about the enemy, and in the use of the trial process by the enemy for propaganda purposes. Thus, war crimes trials rarely happen until after the war is over, and when they do happen during the war, great care must be taken to guard against unnecessary disclosures.

Of course, fundamental fairness requires permitting an accused war criminal enough access to counsel to prepare for trial. This, however, does not imply that the accused has constitutional rights. Most commentators get this point wrong. We permit an alien enemy combatant meaningful access to counsel because by accusing him of war crimes we have chosen to put him on trial. A trial would not meet the Anglo-American standards for a trial if the accused were not permitted a meaningful opportunity to mount whatever defense he may have. That is, our concern is with the integrity of the trial process, not with the purported “rights” of wartime enemies who have committed atrocities against Americans.

Obviously, then, an alien enemy combatant accused of war crimes is not entitled to the extensive contact with counsel afforded in the civilian justice system to Americans who are fully vested with Fifth and Sixth Amendment rights. And even less is an alien enemy combatant entitled to other, more general contact with the outside world.

Unlike meeting with defense counsel — again, an unavoidable consequence once the decision is made to charge war crimes — there is no reason to permit an alien enemy combatant detainee, particularly one of very high rank in the enemy forces, to communicate with people outside the prison. We owe only humane treatment (even though it would be preposterous to expect al Qaeda to reciprocate on that score). While the war continues, we do not owe an imprisoned alien enemy combatant the opportunity to correspond and otherwise get messages to friends, acquaintances, confederates, activists, and the media.

After news broke of KSM’s dissemination of an Islamic manifesto and correspondence with a pen-pal in England, the Obama Defense Department responded to criticism by claiming it had an adequate procedure to vet the combatants’ communications prior to allowing their mailing or publication. That is absurd. For starters, it is not a question of adequate vetting; alien enemy combatants should not be permitted to communicate with the outside world during wartime, period. The burden is not on us to scrub messages — or, at least, it should not be. Furthermore, because our government, very much including the military, is willfully clueless regarding Islamic supremacist ideology, there is no way it could competently vet combatant communications even if such a system were required.

As the last quarter-century has taught us (even if the government remains mulishly deaf to the lesson), captured and imprisoned jihadists are lionized worldwide by Muslims adherent to Islamic supremacism — which, unfortunately, is a mainstream interpretation of Islam in the Middle East and has followers throughout the West. We have a long history of arrested jihadists using their elevated stature as heroes imprisoned by the infidel enemy to promote jihadist recruiting and fundraising, and to inspire acts of terrorism.

To take just a few examples, after killing JDL founder Meir Kahane in 1990, Sayyid Nosair became a hero to jihadists. From Attica prison, he met with other jihadists, encouraged them to carry out mass-murder attacks and political assassinations, and helped plot the 1993 WTC bombing. He also made inspirational recordings that were played in radical mosques to promote recruiting and training. He made a habit of calling for more terrorism (“I did my part, why aren’t you doing your part?” was a refrain), but even when he did not expressly stoke the jihad, his ostensibly benign discussions of Islam were used by his confederates as a recruiting tool and a propaganda device — propagating the enemy theme that America was at war with Islam, with all Muslims.

More importantly, from the federal prison where he was (and is) serving the life sentence imposed after his terrorism convictions, the “Blind Sheikh,” Omar Abdel Rahman, called for attacks against the United States. Later, Osama bin Laden publicly credited him with issuing the “fatwa” (the edict under Islamic law) that approved the 9/11 attacks. You read that correctly: the 9/11 attacks were pre-approved by a fatwa issued from federal prison. Subsequently, the Blind Shiekh’s lawyer, Lynne Stewart, was convicted of material support to terrorism for transmitting his messages to his Egyptian terrorist organization (Gama’at al-Islamia or “the Islamic Group”).

In March 2005, NBC News reported that the jihadists convicted of bombing the World Trade Center in 1993, despite being incarcerated in the “super-max” high-security federal prison in Colorado, had been permitted to correspond with a terror cell in Madrid — and one even got a letter to al-Quds, a popular Arabic newspaper, proclaiming, “Osama bin Laden is my hero of this generation.” Nice vetting job, no? Spanish officials found that the letters from the imprisoned American terrorists were used to recruit jihadists in Spain, and that people on the receiving end of the correspondence were complicit in acts of terrorism.

Remarkably, opponents of military commissions like Mr. Swift (my aforementioned co-guest on The Kelly File) contend that the public dissemination of KSM’s meanderings would not have happened if, as the antiwar Left has demanded and as the Obama Justice Department desired, he and other enemy combatants were imprisoned and prosecuted in the civilian federal court system. Note that the examples I’ve cited all involve terrorists convicted in civilian court and incarcerated in the high-security precincts of the civilian prison system. The pre-clearance analysis of terrorist correspondence there is no better than it is at Gitmo.

Still, the revelation that jihadist correspondence is being enabled at Gitmo is worse because it further confirms a governmental retreat from the post-9/11 war paradigm. In the 2008, then-candidate Obama campaigned against this Bush-era counterterrorism strategy; once in office, however, he found that it was popular — the general public, unlike the Lawyer Left, did not want Gitmo closed, did not want KSM & Co. given the gold-plated due process of civilian court, did not want alien terrorists trying to kill Americans given American constitutional rights, and did not want to go back to the failed Clinton approach of fighting jihadist bombs with subpoenas. Thus, knowing the 2012 election was in front of him, President Obama left almost all of President Bush’s strategy intact.

Now, it is being gradually dismantled. Gitmo is being emptied by transferring terrorists back to countries where they can return to violent, anti-Western jihad. American combat forces, already suicidally hamstrung by unconscionable rules of engagement, are being withdrawn from Afghanistan even as the Taliban moves back in. Al Qaeda is ascendant in Iraq and across North Africa. And, while KSM’s military commission appears to be headed to trial (I’ll believe it when I see it), other 9/11 prosecutions have been shifted to federal court in Manhattan. The Left has substantially succeeded in eviscerating the distinction between enemy combatants and criminal defendants.

When you go back to pre-9/11 methods, you are asking for pre-9/11 results. And on that score, the jihad is known to be very accommodating.