Chapter Six
Treatment of Suspected Terrorists

Terrorism has both criminal and military aspects, and a central issue in the war on terrorism is whether terrorist acts should be treated as crimes or as acts of war. "Legally speaking," writes Bruce Tucker Smith, an administrative law judge, "the definition of terrorism lies somewhere in the murky half-light between war and crime. Either appellation fits, but neither suits."¹⁰³ On the one hand, terrorist acts involve violence and murder, and are clearly illegal. In addition, law enforcement agencies do not want to elevate terrorists to the status of soldiers, choosing instead to characterize them as criminals. On the other hand, some terrorist groups have the organization, sophistication, and capacity for violence of a military force. Moreover, when committed by terrorists, violence and mass murder are more than simply heinous criminal acts; they are the means by which terrorists try to harm the United States as a nation, and therefore they have national security implications.

Whether terrorism is regarded as a criminal or military act has enormous implications for how suspected terrorists should be treated by the U.S. government. The U.S. criminal justice system affords criminals many civil liberties protections, including the right to trial by jury, access to legal representation, a presumption of innocence, and the requirement that guilt be proven beyond a reasonable doubt. The rules for dealing with spies, saboteurs, and other threats to national security, in contrast, are much less rigid, essentially curtailing the civil liberties of the accused because of the great security threat that he or she may pose.

President Bush and other U.S. leaders have made it clear that theUnited States will treat suspected terrorists as national security threats rather than ordinary criminals. "Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution,"¹⁰⁴ said Attorney General John Ashcroft in November 2001. This opinion has led to a variety of debates over the extent to which civil liberties concerns should impede the government's efforts to detain, interrogate, and try suspected terrorists. In the first two years of the war on terrorism, there have been more questions than answers on these issues.

Detention Without Trial

An aura of secrecy pervades the detention of suspected terrorists. Journalist Mark Bowden reports that "there is no clear count of suspected terrorists now in U.S. custody."¹⁰⁵ As of July 2003, about 680 people were being held at a specially constructed prison at the U.S. naval base in Guantánamo Bay, Cuba. Most of them were captured during the U.S. invasion of Afghanistan in October 2001. Hundreds of other suspects are being held around the world in America's military installations or those of its allies. The government has not made public the numbers or names of those being held for intelligence reasons: "Once a top-level suspect is publicly known to be in custody," reports Bowden, "his intelligence value falls. His organization scatters, altering its plans, disguises, cover stories, codes, tactics, and communication methods."¹⁰⁶

Of course, civil libertarians and human rights advocates object whenever any government secretly arrests people and holds them without charging them with a crime. As law professor Stephen Schulhofer puts it, "To say that the Executive Branch on its own determination can pick somebody up and hold them indefinitely without any procedure or access to a court or to counsel or the press is an absolutely staggering thought."¹⁰⁷ However, civil libertarians understand the intelligence concerns involved, and many of them accept the need for secrecy in the detention of suspected terrorists. Moreover, in the absence of more information about those being held by the government and how they are being treated, even the most mistrustful government watchdog groups have little choice but to hope that the U.S. government conducts this aspect of the war on terrorism in a fair and lawful manner. For example, they must accept Secretary of Defense Donald Rumsfeld's assurance that "no detainee has been harmed; no detainee has been mistreated in any way."¹⁰⁸

The Importance of Public Trials

One of civil libertarians' main concerns about the government's treatment of suspected terrorists is that they will be tried in secret. The most commonly cited benefit of public trials is that they help ensure that the accused get a fair trial. In the June 10, 2002, issue of the Nation, attorney Edward J. Klaris discusses how the public also benefits from public trials.

"Public criminal trials are so commonplace in our society that few think twice about the rights underlying this openness. When they do, the criminal defendant's Sixth Amendment right to a public trial usually comes to mind. However, it is now beyond dispute that a separate right of access to attend trials also arises from the First Amendment. That right to attend criminal proceedings—which belongs to the press and public, not to the defendants—mandates that trials be open, absent compelling and clearly articulated reasons for closing them. This independent constitutional right of access was first recognized by the Supreme Court in 1980 in Richmond Newspapers v. Virginia. In that case, the Court held that an order closing the courtroom for the trial was unconstitutional, noting the public policy reasons behind the rule: 'When a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic [preventive] purpose, providing an outlet for community concern, hostility, and emotion.' In describing the need for open criminal proceedings, Professor Laurence Tribe of Harvard Law School wrote: 'The courthouse is a 'theatre of justice,' wherein a vital social drama is staged; if its doors are locked, the public can only wonder whether the solemn ritual of communal condemnation has been properly performed.'"

However, the issue of detention without trial came closer to home with the arrest of two U.S. citizens with ties to the al-Qaeda terrorist network. Yaser Esam Hamdi, born in Louisiana to Saudi Arabian parents, was captured while fighting for the Taliban in Afghanistan, and Jose Padilla (also known as Abdullah al-Mujahir), a New Yorker of Puerto Rican ancestry, was arrested in June 2001 at a Chicago airport after allegedly plotting a bombing with al-Qaeda operatives. Like the hundreds of foreign terror suspects, neither man was charged with a crime, but both have been held in military brigs since their arrests.

Unlawful Combatants

In legal terms, the Bush administration has justified its detention without charge of terror suspects, including Hamdi and Padilla, by declaring that they are "unlawful combatants." This term comes from the 1949 Geneva Convention, which defines the laws and customs of modern war, particularly the treatment of individuals captured during wartime. The Geneva Convention distinguishes between captured lawful combatants, or prisoners of war (POWs), and unlawful combatants. Unlawful combatants are those who do not carry their arms openly, do not wear a uniform or insignia to identify themselves as soldiers, and otherwise conceal their identities before launching an attack. Unlawful combatants do not enjoy the same privileges as POWs, who, according to the Geneva Convention, have the right to refuse to disclose military information and cannot be held indefinitely but must instead be tried or freed once hostilities are over.

Secretary of Defense Donald Rumsfeld and other U.S. officials have said that since terrorist groups such as al-Qaeda are not recognized military forces and since they do not follow the rules of war, terrorists are unlawful combatants and may be held indefinitely without trial. Former Supreme Court justice nominee Robert Bork defends this reasoning:

The government's policy is as follows: if a captured unlawful enemy combatant is believed to have further information about terrorism, he can be held without access to legal counsel and without charges being filed. Once the government is satisfied that it has all the relevant information it can obtain, the captive can be held until the end of hostilities, or be released, or be brought up on charges before a criminal court.¹⁰⁹

Civil libertarians are concerned that by simply labeling someone as an unlawful combatant, the United States is claiming authority to hold terror suspects indefinitely, in violation of the Fifth Amendment's guarantee of due process and the Sixth Amendment's guarantee of a speedy and public trial. They point out that in the war on terrorism, it is unclear when, if ever, "hostilities" will end. In addition, they maintain that the designation of terror suspects as unlawful combatants is unconstitutional because the United States has made no formal declaration of war, which requires an act of Congress. The Constitution, argues the American Civil Liberties Union (ACLU), gives Congress, not the president, "the power to declare war, make rules concerning captures, and regulate the armed forces."¹¹⁰ Finally, civil libertarians worry that labeling terror suspects as unlawful combatants is part of a broader plan to try terror suspects in military tribunals rather than normal courts of law.

Military Tribunals

President Bush first raised the issue of military tribunals on November 13, 2001, when he issued an executive order stating that noncitizens accused of terrorism could be tried under a military tribunal. With the designation of terror suspects Hamdi and Padillo as unlawful combatants, there is speculation that military tribunals could be used to try both citizens and noncitizens.

The Need for Clearer Guidelines on Military Tribunals

Although President Bush issued his executive order authorizing military tribunals for terror suspects in November 2001, in the first two years of the war on terrorism no military tribunals have been convened, and the administration has issued only general guidelines on how such tribunals would be conducted. In a December 2001 Atlantic Monthly article, Stuart Taylor Jr. suggests that more specifics about military tribunals would allay civil libertarian concerns about them.

"On November 28, Assistant Attorney General Michael Chertoff, head of the criminal division, assured the Senate Judiciary Committee that the detailed rules—to be drawn up by the Pentagon—would contain credible fair-trial guarantees. And a senior Administration official tells me: 'I don't think that we're going to end up using military tribunals to try people captured in the United States'—not even accused Al Qaeda terrorists. Not many of them, at least. In addition, this official predicts, if and when military commissions are used, the rules will require a presumption of innocence and proof of guilt beyond a reasonable doubt, even for terrorists caught in Afghanistan. And White House Counsel Alberto R. Gonzales told me that any military proceeding would be public except to the extent necessary to protect 'national security interests.'

These are comforting words. If the President, or Attorney General John D. Ashcroft, or Defense Secretary Donald Rumsfeld publicly provides similar assurances, it would allay the concerns of many of the domestic critics who are alarmed by the breathtaking sweep of the President's order."

Military tribunals are a little-known aspect of the U.S. justice system; in the first two years of the war on terrorism, no one has been tried on terrorist charges outside of normal federal court. Military tribunals are different from either normal civilian courts or ordinary military courts-martial. The specific guidelines for military tribunals may be set on a case-by-case basis by the secretary of defense. They will probably be closed to the public and have a lower standard of due process than either civilian courts or military courts-martial. For example, it is likely that guilt will not have to be proved beyond a reasonable doubt, the verdict need not be unanimous, and secondhand hearsay evidence and evidence that has been collected improperly may be allowed. Defendants might not be allowed the lawyer of their choosing or the right to appeal.

Trial by military tribunals is one of the most controversial measures that the Bush administration has proposed in the war on terrorism. "The Administration's proposal to substitute military tribunals for the regular justice system poses a profound challenge to the nation's ability to preserve civil liberties as it combats terrorism,"¹¹¹ warns the ACLU. Civil libertarians have marshaled an array of arguments opposing the tribunals. The ACLU charges that, like detention of suspects without trial, military tribunals are unconstitutional unless war has formally been declared. Civil liberties groups also argue that, since military tribunals are presided over by military personnel and not independent judges, they concentrate too much power in the executive branch of government. Critics also question why military tribunals are necessary, pointing to the successful prosecution, in federal court, of the terrorists who bombed the World Trade Center in 1993. Above all, human rights advocates worry that, by shrouding proceedings in secrecy and limiting the rights of the accused, the use of military tribunals will lead to the conviction of people who are innocent.

In response, advocates of military tribunals have argued that normal criminal trials are too slow. One of the trials resulting from the 1993 World Trade Center bombing lasted nearly nine months; another involved more than two hundred witnesses; and either one could have resulted in a mistrial if a single juror had refused to join in the verdict. Officials have also expressed concern that such high-profile trials would make tempting targets for other terrorist attacks.

However, the main argument for military tribunals, just as for detention without charge, revolves around intelligence and need for secrecy. Defendants in criminal trials are protected by the Sixth Amendment's guarantee of a public trial. Public trials of terrorists raise the same intelligence problems as public arrests: They may inadvertently give information to other terrorists. The evidence presented in such trials would reveal the extent of the government's intelligence operations for a particular terrorist group. "If the terrorists know what you know, then they'll know how you found it, and they'll shut that channel off,"¹¹² says former federal prosecutor Ruth Wedgewood. Skip Brandon, a former deputy assistant director of intelligence at the Federal Bureau of Investigation, says that "we've had espionage cases that should have been brought [to trial], but we didn't because we couldn't make the case without introducing evidence that would compromise others."¹¹³

Coercive Interrogation of Suspected Terrorists

Intelligence concerns dominate the civil liberties issues surrounding arrest, detention, and trial, but the area in which intelligence gathering and civil liberties come most clearly into conflict is in the interrogation of suspected terrorists. U.S. officials have repeatedly emphasized the importance of gaining more information on terrorists' whereabouts and plans. The question is, if authorities have captured a member of a terrorist group who refuses to talk, how far should interrogators be allowed to go in order to extract potentially life-saving information from the suspect?

The debate about terrorism and interrogation gained widespread attention in November 2001 when Harvard law professor Alan Dershowitz published an article in the Los Angeles Times suggesting that the physical torture of terror suspects might be justified in very narrow circumstances. Dershowitz proposed a situation in which a captured terrorist knows of an imminent large-scale threat, such as a ticking bomb set to explode at a certain time, but refuses to disclose the details necessary to prevent the attack. "Would torturing one guilty terrorist to prevent the deaths of a thousand innocent civilians shock the conscience of all decent people?"¹¹⁴ asks Dershowitz.

Dershowitz's example, although both hypothetical and extreme, raises the classic ethics question of whether the ends justify the means. He maintains that in such an extreme case, law enforcement agents should torture the suspect for information in order to prevent the terrorist's bomb from going off. Dershowitz maintains that in the war on terrorism, the legal system should prepare for such extreme cases, authorizing courts to issue "torture warrants" when doing so is the only way to save lives. His conclusion is that if torture is going to occur, it should be subject to judicial oversight.

Dershowitz's proposal that the United States condone torture outraged many civil liberties and human rights groups that have been campaigning for the elimination of torture in other countries for decades. Philosophers dissected the do-the-ends-justify-the-means questions that Dershowitz posed, and legal scholars pointed out the constitutional obstacles to his proposal. The Eighth Amendment, of course, protects against "cruel and unusual punishments"; more generally, most constitutional scholars believe that an individual's right of bodily integrity is implicit in the Bill of Rights. In the realm of international law, the Geneva Convention completely bans the mistreatment of prisoners. Finally, President Bush has made America's stance toward torture quite clear: "The United States is committed to the worldwide elimination of torture and we are leading this fight by example,"¹¹⁵ he declared on June 26, 2003, the United Nations's day to honor torture victims.

Conducting Coercive Interrogation on Foreign Soil

Hundreds of terror suspects are being held not by the United States, but by its allies in the war on terrorism. Many of these countries have much less restrictive laws governing the treatment of criminals, and some people believe that these suspects have been subjected to interrogation tactics that are illegal in the United States. Reporters Rajiv Chandrasekaran and Peter Finn note in this excerpt from a March 2002 Washington Post article:

"Since Sept. 11, the U.S. government has secretly transported dozens of people suspected of links to terrorists to countries other than the United States, bypassing extradition procedures and legal formalities, according to Western diplomats and intelligence sources. The suspects have been taken to countries, including Egypt and Jordan, whose intelligence services have close ties to the CIA [Central Intelligence Agency] and where they can be subjected to interrogation tactics—including torture and threats to families—that are illegal in the United States, the sources said. In some cases, U.S. intelligence agents remain closely involved in the interrogation, the sources said.

'After September 11, these sorts of movements have been occurring all the time,' a U.S. diplomat said. 'It allows us to get information from terrorists in a way we can't do on U.S. soil.'"

Ideals vs. Reality

Nevertheless, the issue of interrogating terror suspects remains a delicate one, with many gray areas. As journalist Mark Bowden explains, interrogators do not necessarily need to physically torture suspects to get them to talk:

There are methods that, some people argue, fall short of torture. Called "torture lite," these include sleep deprivation, exposure to heat or cold, the use of drugs to cause confusion, rough treatment (slapping, shoving, or shaking), forcing a prisoner to stand for days at a time or to sit in uncomfortable positions, and playing on his fears for himself and his family. Although excruciating for the victim, these tactics generally leave no permanent marks and do not do lasting physical harm.¹¹⁶

In 1987, Israel legalized some of these forms of coercive interrogation, permitting "moderate physical pressure" and "nonviolent psychological pressure" in cases where the suspect had information that could prevent terror attacks. In 1999, however, the Israeli Supreme Court banned even these techniques, in part because their use had become much more widespread than originally intended. Israel's experience is often cited as a case study in how even "torture lite" can be overused and abused. Nevertheless, Bowden is not alone in speculating that some of these interrogation techniques are being used on some of the hundreds of terror suspects being held around the world by the United States and its allies in the war on terrorism.

The debate over coercive interrogation essentially pits decent people's belief that torture is immoral against their urge to do whatever is necessary to stop terrorists. In this respect, it mirrors many of the debates over civil liberties in the war on terrorism. Again and again the questions come down to whether an open and democratic society must resort to undemocratic curtailments of liberty in order to prevent terrorism.