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Former federal prosecutors Andrew McCarthy and Katherine Darmer debate on how to handle the Guantanamo Bay detainees and other enemy combatants

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HH: Earlier today I moderated a debate between my guests who have now come to the studio to continue the debate. The debate is about how the United States justice system is dealing with the terrorists. And the perfect lead-in is from the Wall Street Journal this afternoon. Attorney General Eric Holder has said some detainees held at Gitmo may end up being released in the U.S. as the Obama administration works with foreign allies to resettle some of the prisoners. Mr. Holder, in a briefing with reporters, said administration officials are still reviewing individual cases to determine which will be put on trial, and which may be released to comply with plans to close the detention facility. It puts a cap on the confusion that continues about what a nation does when it’s at war. To discuss that, my colleague from Chapman University Law School, Katherine Darmer is back. She is the author among others of Civil Liberties V. National Security In A Post-9/11 World. And opposite her on many of these issues, not all of them, though, Andrew McCarthy, also a former prosecutor, Andrew the author of Willful Blindness: Memoir Of The Jihad, and the lead prosecutor of the blind sheik, Omar Rahman. Together they served in the United States Attorneys Office for the southern district of New York. But now they often agree and sometimes disagree. And the question I’m going to phrase, and I’m going to begin with you, Andrew, because you traveled the farthest, are we taking too much time spending too much trouble to give too many rights to the terrorists?

AM: Well, we’re not taking too much time, but I think we’re wasting a lot of time trying to pigeonhole terrorists into two known paradigms. We have a criminal justice system which gives people trials and usually in domestic, peacetime situations, and we have a wartime paradigm of military trials. We’re dealing, I think, with a national security threat that is much more than a crime wave, but is not a conventional war. And I think we could have better spent our energy trying to figure out how to take the best of both procedures so that we could protect national security, protect particularly our classified intelligence, which is what keeps us safe, but at the same time made sure that we gave enough of a quantum of due process to the people that we have to detain who are a threat to the country in order to be satisfied that we had, that we were holding the right people, which the laws of war allows us to do.

HH: Katherine Darmer, you’ve got the opposite on this. You don’t think we’ve done enough in the Bush years to give more procedural rights. Where do they fall short and why do you think it mattered?

KD: I think where we have fallen short have been in those instances where we have avoided the conventional criminal trial system, and we tried to create this military commission system in Guantanamo Bay. And I think we’ve seen a lot of failings there. In particular, I would point to the fact that under the Military Commissions Act, we allowed for consideration of the use of evidence that was obtained through coercion. As it turns out, we never really proceeded with too many trials under the Military Commissions Act, but in setting up this sort of parallel universe, there were a number of steps beyond contemplated or being legislated about that I think were deeply problematic. We were also proceeding or contemplating proceeding in situations where there would be no counsel for these individuals, and I think, I would sort of say that in any proceeding, you need sort of three core rights – one, an independent judge, two, a right to counsel, and three, a guarantee that you’re not going to be relying on any kind of coercion in terms of any confessions that you might introduce in that proceeding.

HH: Any disagreement with those three basics, Andrew McCarthy?

AM: Yeah, I think number one, the problem with the military commissions, basically, I think, was that we didn’t have them early enough so that people could have gotten a look at how they would actually work in practice rather than the potential horror show scenarios of what could have happened if you had a proceeding where the judge was basically asleep at the switch. I think we both agree that a trial that’s based on coerced evidence is not a trial. There’s a number of things you can call it, but trial is not something you can call it. I don’t think a military judge would have tolerated a trial that was based on evidence that was produced by coercion. So I think the real problem with the military commissions, at least at the start, was that they became more of a potential nightmare than something that we could see work. Over time, I think, and people like me who supported the military commissions, I think have to admit this. They did not work the way we hoped that they would work. I take, for example, the Hamden case, which was the first military commission trial we had. That was seven years in the making. You can only have a military commission for a war crime, and yet the judge incorrectly instructed the jury on what a war crime was, which was a pretty bad problem there. And I think the other thing is, you would have hoped and I think assumed that people, particularly in the military, would take very seriously the war that we were in. The defendant in that trial who was a confidant of Osama bin Laden’s, who was arrested, I think, with two missiles that were intended for American troops, got six months in prison before he was sent packing, I think, back to Yemen. I have to say, every defendant I know of who was prosecuted in the civilian system, who were, many of whom were much less serious defendants than Hamden was, got very, very severe, and I think appropriate, sentences.

HH: Katherine, do you think Hamden is going to be back on the field of war?

KD: You know, I have to say, Hugh, I think if the evidence had been there that he had these missiles that Andy alleges that he had, it’s sort of inconceivable to me that he would have gotten the kind of sentence he did. I think again, part of the concern and Andy’s remarks illustrate, when we’re operating in sort of a different kind of system that is not the system that we are all accustomed to, there are just a lot of perils in operating in that system. And so I think we should start with the paradigm that we have, and we’ve got the convention criminal justice system. We also have courts martial as a possibility, and I think there hasn’t been enough looking at sort of using, I mean, those are obviously what we use when we have our own soldiers that are being processed. But I think we should look at that paradigm as well. But one of the problems I often have in debates of this type is sort of this assumption, you know, you say well, what should we, even your question, you know, what rights should we give to terrorists, I think the real question is what rights do we give to alleged terrorists, because of course the whole point of any process is to determine what wrongdoing someone did, what conspiracy they may have been a part of, because of course it’s not like they’re acknowledging that they were involved in…

HH: Well you know, I’m going to challenge you on that and ask Andy to comment on this. When we rounded up alleged Nazis, and alleged SS storm troopers, and alleged Viet Cong guerrillas, and alleged North Korean killers, we didn’t think of them as alleged anything. We picked them up on the field of battle, and they were that. And you know what? There were probably some people who got picked up that shouldn’t have been there. They were peasants, or that they really were wearing black pajamas that night and just happened to come into the wrong place, or that they were hungry and got impressed into Hitler youth or something like that. But we just don’t worry about that. It’s sort of a different mindset entirely, from my perspective. And Andrew McCarthy, I think I represent the vast majority of Americans. I think civil libertarians on this issue are magnified in their influence on this public policy debate because of elite media’s microphone as opposed to ordinary Americans saying we don’t want to torture anyone, we don’t want to try anyone. We want them to be put away as a POW until the war is over.

AM: Well, we certainly want them to be detained, and I think a lot of the problem with this debate is that there is a conflation of detention and trial.

HH: Yes.

AM: When Katherine says we’re talking about using a new system, the new system we’re actually talking about using is using the criminal justice system for prisoners who were detained in wartime. That actually is a novelty. We’ve never done that before. Where people, I think, need to be presumed innocent is if they are put through a trial proceeding. But detention in wartime has never carried with is a presumption of innocence. And what we’re trying to do is take a situation where there’s ambiguity about the people who we capture, because…precisely because they flout the laws and customs of war by not garbing themselves as military, and trying to give them more process than we would give normal military prisoners because of that ambiguity, and because politically and morally we want to be sure that we’re holding the right people. But that doesn’t mean that they ought to get all of the presumptions and all the favorable treatment that they would get in a full-blown trial.

HH: Katherine Darmer?

KD: Yeah, well let me respond to a couple of points. One, the idea that it’s completely unusual to use conventional criminal courts for terrorism is not exactly right, and we think about the Oklahoma City bombers, for example. I don’t think anyone would have said we should have done anything other than proceed to an ordinary trial, which we did. And I think in a lot of the terrorist acts where individuals were in fact captured within the United States, it’s absolutely appropriate to proceed within the criminal justice system, you know, as Andy himself very successfully did in one of the most high profile of those cases out of the southern district of NewYork. I think where we are, really where we’re focusing now, though, is on the battlefield detentions. So for example, when you think about the people that were brought over to Guantanamo Bay, a number of them were captured, say, in Afghanistan. And absolutely, I will agree, and I think that these lines can get blurred, and these debates sometimes, that historically throughout wars, we have always captured people on the battle and held them as prisoners of war, generally in that location. What makes this different is that we brought them to Guantanamo Bay, which obviously has very, sort of an anomalous situation in terms of its location, and our control over that facility. So that’s one thing that makes the Guantanamo Bay detentions different from, say, what Hugh was describing earlier. And then the other thing is the long duration and open-ended nature of this war. All of the other wars that you described, Hugh, there was sort of an end point. There was not the notion that they could go on forever. This is different because of the open-ended nature of it.

– – – –

HH: Today, a new tape of Osama bin Laden was released, 33 minutes long. It’s the second since the Operation Cast Lead in Gaza, and bin Laden uses the opportunity to denounce Jordan, the Hashemite Kingdom, and to threaten the BBC, al Hurra, al Arabiya television. In fact, he’s got lots of targets in his ongoing holy war. Katherine Darmer, I know you’re very serious about this stuff, but as we did the debate today, I couldn’t help but think it sounded 9/10 to me, not 9/11. You must get that a lot.

KD: You mean the question everything changed after 9/11, we have to look at this in a completely different way? You know, it’s interesting, Hugh, my own thinking has really evolved on that, and I would have been much more in agreement with you that though the world changed dramatically after 9/11 about seven years ago. But the more I’ve had time to get distance and reflection on it, the more I think that that may be a way of looking at it that doesn’t take into account some of the historical horrors that we’ve confronted as a country in the past. I mean, I have in mind, for example, World War II where we were attacked on our own soil, and then of course we confronted the horror of Nazi Germany and extermination camps, et cetera. And yet after that war, we proceeded to the Nuremberg trials, and we put on trial some of the most horrific individuals that we had ever encountered. So yes, we’re in difficult, challenging times, but does that justify moving away from core principles embedded in our Constitution? I would say no, as frustrating as it is, and I do adhere to the view that our Constitution is there for times of crisis when we are most inclined or tempted to abuse people’s rights.

HH: Andrew McCarthy?

AM: Well, you know, it’s interesting to mention the Nuremberg tribunals, because compared to Nuremberg, the military commission proceedings actually have a trove of protections. The protections involved in Nuremberg were actually fairly sparse. I think to compare the things that have happened on the bad side of the ledger since 9/11, can’t reasonably be done without checking off what’s happened on the good side, which is that we haven’t been attacked in I guess it’s 8 years now, or close to 8 years. And I think sometimes we can be undone by our own success. It may well be, and I would submit is probably is true, that the reason we haven’t been attacked is because we’ve been more vigilant, and we’ve changed our way of treating this problem.

HH: All right, you’re both kings of the world. You get to design the system. Everyone’s given up, and now the Supreme Court has said we’re going to let you be our special master. Tell me how to do this. What do we do with these Gitmo people, Katherine Darmer?

KD: Again, I think I would go back to my first answer, that in any proceeding, we need to have those three, core principles respected. One, an independent judge, two, a defense lawyer who truly is a lawyer and not a so-called friend of the defendant, but somebody who’s legally trained, and finally, an absolute prohibition on the use of any kind of torture or confession based on coercion, and I would include waterboarding in that. That’s obviously been a debatable point, but I would certainly say anything that was a result of waterboarding or similar techniques should not be included. And that is one of my main concerns regarding the Military Commissions Act as it was passed.

HH: So you would be okay, though, if we closed the proceedings to prevent propaganda and release of information, if we highly screen defense counsel, and if we limited the ability of the defense to call witnesses?

KD: I would certainly think that would have to be looked at on a case by case basis. I think the presumption should be for open proceedings, but I absolutely would agree that there are going to be situations where there’s classified information that could endanger our troops, could endanger our country, and that that would need to be handled in a manner where those proceedings were closed. And so I think that particular provision would have to give. In terms of calling witnesses, again I think that has to be case by case. I mean, as, you know, one of the frustrations Andy and I would both share with the conventional court system is that the defendant can call whomever they want. And if you have to sit around for six months waiting there for them to subpoena somebody, that they have the right to do that. In this situation, I would say you know, just off the top, one of the things you can consider would be have the defendant put forward a list of witnesses, and why they want to call them, and have the judge, an independent judge consider that. I mean, is this just some wacky theory, or is it based on something? But I do think we have to remember at all times that we can’t conclude these people are terrorists. We have alleged that they are, but we know beyond the shadow of any doubt that some of the people at Gitmo were at the wrong place and the wrong time and were not terrorists.

HH: Andrew McCarthy, it just seems to me that whenever we get down to brass tacks, it’s pretty hard to come up with a system that there aren’t qualifications attached to. Katherine Darmer just said yeah, maybe, but then we have to do case by case basis. Well, case by case basis isn’t a system. It doesn’t work. You’ll have 25 different systems.

AM: Well, first of all, I don’t think you can conflate again trial and detention. And I also think that you have to, if you’re actually going to be in a war footing, put national security in front of due process in the sense that there may be times when you simply can’t have any proceedings, depending upon what the extent of the threat to our country is. Assuming you’re in a situation like we’re in now, where we actually have troops in harm’s way, but most of the world is not a conventional battlefield, and we can proceed with legal tests, I would have different proceedings in place and different rules in place for detention than I would for trial. I think we’re probably pretty close on what we would require for trial. As far as detention is concerned, though, for example, when do you have a right to counsel for somebody who’s detained? In wartime, the reason we’re allowed to detain people is not only to deplete the enemy’s resources, but to glean whatever intelligence we can glean. And I’m not talking now about torture. I’m talking about, you know, just traditional methods of…

HH: Interrogation.

AM: Right. If you introduce counsel at too early a stage, you are going to lose intelligence. I mean, that’s just a fact. If you give them a right to counsel from the moment of capture, you won’t get any intelligence. If you don’t let the interrogation go along for a long enough period of time, you won’t get all of the information that we’re entitled to get to protect the country. And at that point, I think what we need to be saying is that what we’re trying to do here is protect the country, not collect evidence for trial. And if that means that we’re using procedures that give us a sense that the information we get is reliable, but procedures that don’t give us the sense that there’s enough voluntariness that the statement should be used at trial, then those statements should only be used for intelligence. But we have to be able to get them, so you have to be very careful about when you introduce counsel, and a number of the trial rights that are appropriate for trial but not detention.

HH: Katherine?

KD: Yeah, I think in this area, we probably have more agreement than disagreement. I certainly would not be suggesting that we should be shipping counsel out to Gitmo the minute somebody was captured. But I think one of the points Andy made early on is you know, sometimes you are in a wartime mode where you have to suspend rights for a certain amount of time. I would certainly agree that on September 12th, September 13th, September 14th, we were in a wartime feel and mode throughout this country. And at that time, our concerns were intelligence gathering much more than what kind of process can we give to terrorists, whether they be alleged or actual terrorists. But I think now we’ve had a long time since 9/11, and we are now proceeding into a situation where we have people who have been at Guantanamo Bay for many years. And so in my view at this point, they need proceedings that are more trial-like than simply to justify short term detention. And this is where I go back to my point, this is not like, you know, holding someone in North Korea, or somebody when we were in the Allied forces in World War II, where we had battlefield detentions that were short term. These are now open-ended, they could go on for years. They need more process.

– – – –

HH: It breaks out every single day in the news. It’s going to continue to break out, because we still don’t know what we’re doing. And this is the sort of conversation that I think should be taking place in a lot of places, and unfortunately doesn’t. But I’ve got two smart people talking about the nuances involved…I always say that wrong, Andrew, Rahman?

AM: Rahman, but we always called him Abdel Rahman. We got in trouble, actually, for saying United States against Rahman, because Rahman means God.

HH: Oh, okay.

AM: …which I was told was a real no-no after I wrote the indictment.

HH: In terms of where those players are, are there still people being pursued by your old team that go back to the 1993 bombing?

AM: Well, I’ve been removed from it long enough that I couldn’t tell you who they’re pursuing. But that really, I think, was the intelligence base at least that was the building base for everyone they’re pursuing now.

HH: And just a little inside baseball for both of you, when terrorism became an issue in the United States, obviously there was no prosecutorial, hard core group of people who had been doing it for years. I remember at my time at Justice, I was the special assistant for the Foreign Intelligence Surveillance Court, and they turned over one a year. No one knew what this stuff was, and you just move in and you do it for a year and move on. Do we have the capacity now? Do we have the specialists that if this is going to become full blown trial litigation, with taking it away from the military, Katherine Darmer, do you think we have the specialists trained, you mentioned Arab linguists earlier today at Chapman, to do this the right way?

KD: Well, I think it depends on the numbers. I think we have been, so far, able to handle the cases pretty effectively. And in fact, I’ll put in a pitch for the white paper that I talked about at Chapman today that was written by two of Andy’s and my former colleagues, Rich Zabel and Jim Benjamin, who really do a pretty effective job of pulling together the history of terrorism prosecutions in the country, how effective they’ve been, and comparing that to other systems, and concluding that they’ve actually done a lot better than I think conventional wisdom would suggest. If we were to suddenly have the need to try masses and masses of terrorists, I think we’d be in a bit of a pickle. I mean, honestly, we don’t have some of the things in place that we need, but I don’t really see that happening. Maybe I’m unduly optimistic, but I don’t see a situation where we’re going to suddenly have six or seven hundred trials going on where we’re going to need that.

HH: Andrew McCarthy, we talked at Chapman today about the screw up of the 20th hijacker, that case was a complete fiasco. The first Holy Land Foundation trial in Texas was a complete fiasco. Does the Department of Justice have what it needs in terms of talent and resources to try these sorts of cases?

AM: There’s no question that if it’s a finite number of cases, the Justice Department has the talent to carry that off. The reason that it’s been successful up until now has been because it’s been a very finite number of cases, which is why I argue it’s not an effective national security strategy. I mean, the cases we’re talking about before 9/11, we’re talking about 29 defendants in 8 years, just what we’re talking about at Guantanamo Bay dwarfs that number, and I really think the threat is a lot larger than what we have at Guantanamo Bay. And I think the thing that we really need to be careful with, and it strikes me that you know, here we are, three lawyers talking about what is the best system going forward, and that’s fair enough, but…

HH: But none of us are intelligence professionals.

AM: Right, and none of us are military people, either.

HH: Right.

AM: And the point is that the imperative in warfare, and we are at war, it’s not only obvious enough from what Congress has said, but President Obama himself has said it a number of times from his inauguration speech on, the imperative in war is victory in the war, accomplishing the ends of warfare. And I think we need to be very careful when we design procedures, whether they’re trial procedures or detention procedures, that we’re not turning the battlefield into a crime scene. It’s fair enough to say that terrorism has been handled as a criminal justice matter in the past, and it’s close enough to a crime that it makes sense to apply criminal justice procedures to terrorism cases, but if you’re actually going to be in a war against a terrorist network, I think you want to be very carful that you are not setting up a situation where we’re mixing up soldiers who have military objectives with FBI agents and New York City or other city police who collect evidence and collect intelligence under very different circumstances in peacetime, domestic U.S.

HH: 20 seconds, Katherine, and I’ll come back to you when we come back from the break.

KD: Yeah, I think we brought a lot of that upon ourselves by choosing to transport all these folks over to Guantanamo Bay. I think if we had simply handled them on the battlefield more like we had in the past, a lot of these problems wouldn’t have come up.

HH: A lot of those guys would be dead, though. I mean, we’ll come back to that. If you turned them over to the guy up north, the Tajik guy, they’d be dead. They wouldn’t be in Gitmo. They’d be dead.

– – – –

HH: Very quickly, Katherine Darmer, if you could do one thing in this mess, what would it be?

KD: The one thing I would do is provide adequate process to the folks we have left at Guantanamo Bay. I think a lot of them have been there for a very long time. Andy was mentioning before the complications of a case like his against the blind sheik, I think maybe two or three of the folks at Guantanamo Bay are that caliber defendant. I think most of these are low level folks that probably with adequate process, we could either release or send them home or whatever.

HH: Andrew McCarthy?

AM: I’d want to get more information about who we have released whose gone back to the jihad, because we may want to think that they’re low level, but at least some of the intelligence we have indicates that a number of them have not only gone back, but have gone back to higher level positions in al Qaeda.

End of debate.


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