The Terror Courts

The Terror Courts: Rough Justice at Guantanamo Bay

JESS BRAVIN
Copyright Date: 2013
Published by: Yale University Press
Pages: 384
https://www.jstor.org/stable/j.ctt32bnnj
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  • Book Info
    The Terror Courts
    Book Description:

    Soon after the September 11 attacks in 2001, the United States captured hundreds of suspected al-Qaeda terrorists in Afghanistan and around the world. By the following January the first of these prisoners arrived at the U.S. military's prison camp in Guantanamo Bay, Cuba, where they were subject to President George W. Bush's executive order authorizing their trial by military commissions. Jess Bravin, theWall Street Journal's Supreme Court correspondent, was there within days of the prison's opening, and has continued ever since to cover the U.S. effort to create a parallel justice system for enemy aliens. A maze of legal, political, and moral issues has stood in the way of justice-issues often raised by military prosecutors who found themselves torn between duty to the chain of command and their commitment to fundamental American values.

    While much has been written about Guantanamo and brutal detention practices following 9/11, Bravin is the first to go inside the Pentagon's prosecution team to expose the real-world legal consequences of those policies. Bravin describes cases undermined by inadmissible evidence obtained through torture, clashes between military lawyers and administration appointees, and political interference in criminal prosecutions that would be shocking within the traditional civilian and military justice systems. With the Obama administration planning to try the alleged 9/11 conspirators at Guantanamo-and vindicate the legal experiment the Bush administration could barely get off the ground-The Terror Courtscould not be more timely.

    eISBN: 978-0-300-19134-9
    Subjects: History, Law, Political Science

Table of Contents

  1. Front Matter
    (pp. [i]-[vi])
  2. Table of Contents
    (pp. [vii]-[viii])
  3. Prologue
    (pp. 1-7)

    November 24, 2001. around noon.

    Checkpoints were common as potholes on the roads of Afghanistan. Salim Ahmed Salim Hamdan, driving north on Highway 4 in a Toyota hatchback, was not surprised to be stopped by a group of armed men as he approached the fortified town of Takht-e Pol.

    Afghanistan was at war. It had been at war for decades. On October 7, less than a month after terrorist attacks obliterated the Twin Towers in New York and destroyed part of the Pentagon in Washington, the United States had become the latest entrant in the Afghan wars. American air strikes...

  4. 1 Tater
    (pp. 8-20)

    August 2003.

    Stuart Couch had been waiting nearly two years to start this job. He had been waiting since September 11, 2001.

    Couch, a lieutenant colonel in the United States Marine Corps, was a military prosecutor. When President George W. Bush decreed that the 9/11 perpetrators would face trial by military commission, a form of martial justice last used against German and Japanese war criminals following World War II, Couch had volunteered for the mission. It was a matter of duty, not only to his country but to a fellow Marine.

    Couch once had been a pilot, flying KC-130s out...

  5. 2 Military Order
    (pp. 21-55)

    Two or three days after 9/11, Bill Barr, former attorney general of the United States and a prominent member of the conservative legal movement, placed a call to his former deputy, Timothy Flanigan, a senior lawyer in President Bush’s White House.

    Barr, now general counsel for Verizon Communications, was calling to remind Flanigan about the brass plaque outside Room 5235 at Main Justice, the department’s headquarters in Washington.

    It commemorated a trial that took place there in July 1942. Eight Nazi saboteurs, arrested after landing on American soil, had been convicted in a secret proceeding before a military commission appointed...

  6. 3 Welcome to the Dungeon
    (pp. 56-82)

    With the military order signed, the JAG Corps had to supply staff for the commissions project. At Camp Lejeune, the legal services director went looking for Stuart Couch, the base prosecutor. He found him with his staff at the bowling alley bar.

    Military personnel in the field knew nothing of the Bush administration’s internal battles over commissions. What they saw was a president moving decisively against a virulent threat.

    Mark Fallon, the federal agent who had headed the Aviano investigation, had been tapped to run investigations of Guantanamo prisoners for prosecution. He had floated Couch’s name as a candidate for...

  7. 4 Survival, Evasion, Resistance, and Escape
    (pp. 83-111)

    When stu couch visited Guantanamo in October 2003, the prison held about six hundred prisoners. The makeshift jail at Camp X-Ray had been replaced by a permanent facility called Camp Delta.

    Couch trusted President Bush and the chain of command. To him, criticism from liberal activists, European governments, and the news media was suspect. While abuse allegations had dogged the Guantanamo prison, according to American officials al Qaeda trained its operatives to claim they were tortured, so the stories filtering out were no surprise.¹ Prisoner mistreatment was a possibility in any jail, but Couch assumed that any abuse was an...

  8. 5 London Calling
    (pp. 112-130)

    Despite scott lang’s curt personality, Stu Couch had grown to respect, and even like, the deputy chief prosecutor. The spit-and-polish naval officer was a precise and professional lawyer and shared with Couch an ethical code that transcended their regional differences.

    Lang was the first staffer that Bill Lietzau, when serving as acting chief prosecutor, had brought on board to set up the Office of Military Commissions.

    Lang, who held bachelor’s and law degrees from Villanova University near Philadelphia, was the rare JAG who had stuck with courtroom work rather than rotating into management after a few years of trial experience....

  9. 6 The Ides of March
    (pp. 131-153)

    Five months after President Bush signed the military order authorizing commissions, the CBS television showJAGimagined how they might work.

    “This morning, the president authorized the convening of a military tribunal,” the first in more than half a century, a senior Pentagon official, Admiral A. J. Chegwidden, announced.

    The defendant, Mustafa Atef, had been captured by Special Forces in a cave in Afghanistan. Officials said Atef was al Qaeda’s No. 3 leader, known as Mohandese—“the architect.”¹ A former Saudi army officer, Atef was believed to have directed al Qaeda’s training operations, producing some four thousand committed fighters. Trial...

  10. 7 The Nuremberg Defense
    (pp. 154-179)

    Days later, stu couch left for Afghanistan to gather information on his other cases.

    Colonel Swann gave him an instruction. “You are not to ask questions about detainee treatment,” he said.

    That, however, was a major reason for going. Couch planned to interview detainees about their capture and custody.

    His motivation wasn’t protecting prisoners from mistreatment. It was to protect prosecution cases. By getting detainee accounts now, it would establish a baseline regarding their treatment—and make it harder to embellish their stories with additional claims of coercion after defense attorneys entered the picture.

    “This stuff’s gonna be key as...

  11. 8 The Man from al Qaeda
    (pp. 180-202)

    A week before pretrial hearings were to begin at Guantanamo, the commissions appointing authority, John Altenburg, stepped to the Pentagon lectern to brief the press.

    “First of all, there are several ways that the United States government could have proceeded to prosecute alleged war crimes,” he said, including civilian courts, which were in fact being used to try some defendants. “They could have done courts-martial in the military. They could have sought out international ad hoc tribunals. And there are other ways. But the government chose, for many different reasons, to use a military commission process. It doesn’t mean that...

  12. 9 Habeas Corpus
    (pp. 203-224)

    At week’s end, the proceedings’ exhausted participants—defendants excepted—gathered at Guantanamo’s Leeward air terminal for the return trip to Andrews Air Force Base. The commission members, prosecutors, defense attorneys, interpreters, courtroom staff, news media, and humanitarian observers had arrived at the base on different days, were housed in separate quarters, and were kept apart from one another by military guards. Their paths had been permitted to intersect only at the Pink Palace, where each performed his or her role in the ritualized setting of a military courtroom.

    Now, with official minders off duty—and military personnel in their civvies...

  13. 10 Mr. Bean
    (pp. 225-244)

    The bush administration wasted no time appealing Judge Robertson’s order. By holding the United States to its treaty obligations, Robertson had interfered with “important military determinations of the commander-in-chief during a time of active armed conflict,” the Justice Department said in a brief filed with the US Court of Appeals for the District of Columbia Circuit.¹

    Although the administration considered eventual legal victory certain, the appeal would take months. In the meantime, prosecutors were to work up new cases that would be ready to launch the moment the stay of proceedings was lifted.

    Stu Couch was assigned the White House’s...

  14. 11 A Twentieth Hijacker
    (pp. 245-271)

    To argue its appeal inHamdan v. Rumsfeld,the Bush administration sent one of its most trusted litigators, Peter Keisler, a cofounder of the Federalist Society. He entered the DC Circuit courtroom confident of a sympathetic panel. All three judges were Republican appointees.

    In 2003, two of them, Stephen Williams and A. Raymond Randolph, sat on the panel that held that Guantanamo prisoners had no legal rights, a ruling the Supreme Court reversed inRasul v. Bush.Both had been on the court for more than a decade.

    The third judge would have had nearly as long a tenure on...

  15. 12 The Marble Palace
    (pp. 272-284)

    The hamdan and hicks trials could resume within four to six weeks, Brigadier General Tom Hemingway, the military commissions legal adviser, announced after the appeals court reinstated the program.¹

    But Neal Katyal, the Georgetown professor directing Hamdan’s legal challenge, never considered the DC Circuit anything other than a bump on the road to the Supreme Court, where he immediately filed an appeal.

    As Katyal’s petition framed the issue, Hamdan “asks simply for a trial that comports with this nation’s traditions, Constitution, and commitment to the laws of war, such as a court-martial.”

    While the Hamdan team pursued its Supreme Court...

  16. 13 The Vampire Killers
    (pp. 285-308)

    Over the months leading to the Supreme Court argument, the Pentagon continued rolling out charges against additional detainees, brought on additional staff, and resumed hearings at Guantanamo.

    Bob Swann decided to retire from the Army but not from commissions. By switching to civilian status, he could collect his military pension atop a regular salary. But the Pentagon needed an active duty officer in the chief prosecutor slot, so a personnel shuffle was orchestrated, putting a new face in the front office while Swann continued his work.

    Formally, Swann became deputy chief prosecutor, with broad supervisory responsibilities and a portfolio of...

  17. 14 The Kangaroo Skinner
    (pp. 309-326)

    On capitol hill, commissions’ future rested with Senator Lindsey Graham. The South Carolina Republican sat on both the Judiciary and Armed Services Committees, where colleagues considered him an authority on military law. Graham also was a JAG in the Air Force Reserve, giving him an inside line on Jim Haynes’s stewardship of the military justice system. Haynes’s dismal reputation among rank-and-file JAGs led Graham to block his Fourth Circuit nomination. The torture policies Haynes approved disgusted Graham, whose best friend in the Senate was John McCain, the former POW. Likewise, the JAGs’ long-standing antipathy toward David Addington left Graham loath...

  18. 15 Material Supporter
    (pp. 327-350)

    Hamdan’s jury—the panel, in military parlance—was drawn from a pool of thirteen officers. Allred had issued a blanket order holding their names confidential, and the sketch artist covering the proceeding was required to blur their faces. They could be described only by superficial characteristics.

    The foreman, called a president, was determined by seniority. He had attended the University of Virginia through ROTC and had remained in the Navy since his 1981 graduation. Now a captain, he was the only African American on the panel.

    There was a white woman, an Army colonel. The others were white men: an...

  19. 16 Turning the Page
    (pp. 351-371)

    On january 20, 2009, a naval petty officer at Guantanamo Bay removed an eight-by-ten-inch headshot of George W. Bush from the display at base headquarters and replaced it with the official portrait of Barack Obama, newly inaugurated as forty-fourth president of the United States and commander in chief of its Army and Navy. Many other changes at Guantanamo were expected to follow.

    As candidates, both Obama and his Republican opponent, Senator John McCain, had promised to close the offshore prison. They took different positions on military commissions, however, as McCain endorsed the existing apparatus while Obama called it a failure....

  20. Epilogue
    (pp. 372-384)

    So reads the dedicatory plaque at Bulkeley Hall, the headquarters building at Guantanamo Bay, named for the base commander who stood down Castro after the Cuban missile crisis. Whatever else might be said about the military commissions experiment at Guantanamo, it certainly has defied Admiral Bulkeley’s command. As 2013 begins, commissions are in their third iteration since they were conceived in the feverish hours following 9/11. With an array of legal challenges and practical problems still facing the project, further revisions are all but inevitable.

    After the Supreme Court invalidated President George W. Bush’s Military Order of November 2001, the...

  21. Notes
    (pp. 385-418)
  22. Acknowledgments
    (pp. 419-422)
  23. Index
    (pp. 423-440)
  24. [Illustrations]
    (pp. 441-448)