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Counterterrorism on the Defensive By: R.K. Joyad
FrontPageMagazine.com | Monday, May 22, 2006

These are strange times for those in the counterterrorism business. The more they get it right, the more they take the heat. 


I am not referring to the intelligence community, which has had its share of shake-ups lately.  The intelligence community collects information that it feeds to those involved in counterterrorism decisions. Counterterrorism personnel are those government officials entrusted with decisions on how to react to credible threats, and what to do with persons captured alive who are planning to kill us. They are generally apolitical, although they report to political appointees.

For counterterrorism personnel, the last few weeks saw the culmination of the Zacarias Moussaoui case, where justice appears to have been served, yet there is criticism of the government’s actions from both sides of the aisle. They also saw the resignation of a prominent federal appellate who was among the strongest voices for unfettered Executive Branch authority in counterterrorism.  Why? Apparently, it was because he was outraged that the Executive Branch acted with too much unfettered discretion in how it handled Jose Padilla.

Let’s take Moussaoui first. After valiant efforts to bring justice to the victims of 9/11 by insisting on a full, public trial for the one living participant capable of treatment by the criminal justice system, prosecutors succeed in convicting him. Getting there was not easy. They twice had to take the case up to the Fourth Circuit Court of Appeals, due to the trial judge’s insistence that  Moussaoui was entitled to more discovery than the Pentagon was willing to permit. The government prevails in the Fourth Circuit, and the prosecutors ultimately secured Moussaoui’s conviction.  

At the penalty phase, they succeeded in establishing Moussaoui’s eligibility for the death penalty, even in the face of the release of e-mails from a fellow government lawyer describing the case as hopeless.  After a prolonged hearing that involved family members of 9/11victims testifying for the defense, the jury finally speaks.Moussaoui is sentenced to life without possibility of parole. The system works.  Moussaoui did not get what some people, apparently including himself, wanted. But the death penalty is a fairly rare result in federal courts. Failing to push the case to this stage would certainly have opened the government up to second-guessing by historians about what the jury might have done. Now we know for sure. We are undoubtedly better off for it.

But you would not know it from reading the commentary from both sides of the political spectrum.  On May 5, 2006, the Washington Post published an editorial about the Moussaoui case by David Cole,a left-wing professor of law at Georgetown, titled “How Not To Fight Terrorism.”  The next day, the Wall Street Journal published an op-ed by right-wing commentator Andrew McCarthy, titled “This Is No Way To Fight A War.” Cole and McCarthy have more in common than the same headline writer.  Strange days make strange bedfellows. To Cole, the Moussaoui prosecution was “an object [sic] lesson in how the government's overreaching has undermined our security.” He complains that the final result in the Moussaoui case was the same as if the government decided not to appeal the trial court’s ruling original on his right to discovery. That appeal to a decision that Cole suggests was obvious: that the government’s position on discovery was depriving Moussaoui of exculpatory evidence and therefore due process. Cole does not mention that the Fourth Circuit rejected this very characterization of the information at issue, since that is inconvenient to his argument. This does not stop him from finding great significance to the jury’s decision, and using it to condemn the government’s tactics. His method is simple: If the Fourth Circuit rejects your claim, you ignore it. If the jury rejects the government’s arguments, you tout it.

Cole claims that the Moussaoui case is “emblematic of the administration's approach to fighting terrorism. It has repeatedly overreached and sought symbolic victories, adopting tactics that have undermined its ability to achieve real security while disregarding less flashy but more effective means of protecting us.”  Cole does not offer any suggestions on how the government should handle someone like Zacarias Moussaoui or Jose Padilla, other than his claim that the administration needs to turn away from symbolism and “toward substance” if it is to have any hope of protecting us from the next attack.

McCarthy's substantive article does not have the same flaw. His suggestion is very clear: Terrorists like Moussaoui should be treated like people we capture on the battlefield: either killed immediately or executed later as enemy combatants. Moussaoui’s “active participation in targeting civilians for mass-murder, to which he gleefully admitted, was a heinous violation of the laws of war. In a military commission, it would plainly have qualified him for execution.” McCarthy then describes how the penalty stage of the hearing “presented an arresting contrast pitting the slaughter of innocents against the terrorist's sad-sack upbringing -- ‘root-causes’ psycho-babble so hackneyed that even Moussaoui snickered at it....For those of Panglossian bent, this is all to the good: our system functioning, its enlightened fairness on display. They're dreaming.”

In McCarthy’s world, our counterterrorism apparatus is filled with far too many touchy-feel types who do not understand the need for expedience. This attitude is ironic, since it comes from commentator who cut his teeth in the national security world as a terrorism prosecutor, whose various terrorism defendants never received the death penalty.  His attitude seems to be untethered to the reality that we live under the rule of law. If the jury had misgivings about subjecting Zacarias Moussaoui to the ultimate penalty, there is no question that most would get a little nervous if the government picked people off the American streets and executed either on the spot or after summary proceedings.

Although they advance contrasting views, both Cole and McCarthy take untenably large leaps of faith.

Then again, they have constituencies that expect this of them. As a result, those who devoted the last four years of their life to the Moussaoui case seem to be getting it from all sides. They should take solace from this realization: If partisans on both side agree that you are wrong, you have probably done something right.


Then we have the strange case of Judge Michael Luttig, who resigned last week from his lifetime appointment on the Fourth Circuit Court of Appeals to take a job as General Counsel of Boeing.  People should not be criticized for quitting public service, especially when, like Judge Luttig, they start thinking about their kids’ college tuition bills.  Luttig’s decision, however, smacks of immaturity and sour grapes, at least if you believe the inside account published on in the Wall Street Journal on May 11. (Jess Bravin and J. Lynn Lunsford,  “Breakdown of Trust Led Judge Luttig To Clash With Bush”).

According to the Journal, Luttig never recovered from the anger he felt on November 22, 2005, when he turned on the television in his judicial chambers and saw Attorney General Alberto Gonzalez announcing the indictment of Jose Padilla.  Two months earlier, the jurists had written an opinion upholding the president’s right to hold Padilla as an enemy combatant, in the face of arguments that, as an American citizen, Padilla was entitled to be placed in judicial proceedings.  Luttig apparently put his own credibility on the line, convincing his colleagues to join his opinion. Based on his own experience working national security issues within the Executive Branch, he argued that the government would not be seeking such extraordinary powers unless absolutely necessary. This is exactly the type of judicial decision-making we should welcome. We select judges who bring a range of experiences to the bench, and expect them to draw for them.

However, we do not expect our judges to feel that they remain part of the Executive Branch after they take the bench, since this would be an abrogation of the doctrine known as Separation of Powers. According to the Journal, Luttig thought that the government, in deciding to place Jose Padilla in the criminal justice system, had somehow pulled the rug out from under him, since it meant that his opinion would not get the benefit of a review by the Supreme Court. 

Luttig’s disappointment is understandable. After all, he worked hard on the Padilla case. But did he really think that the Executive Branch and the Federal Judiciary should somehow be equal players in deciding on the appropriate treatment of Padilla?  His job was to rule on the case and the controversy before him. The only way a member of the judiciary could possibly feel justified in complaining about the Executive Branch pulling the rug out from under him is if two branches of government were somehow in cahoots.  In his own mind, it seems, he had sweat equity invested in the fate of Jose Padilla, and this somehow entitled him to some joint decision-making authority.  Of course, these were exactly the arguments he worked so hard to reject when they advanced by Padilla’s lawyers, who wanted a stronger judicial role in their client’s fate.

The Department of Justice’s decision to make a criminal case against Padilla based on evidence that is independent of any statement he may have provided while in U.S. custody as an enemy combatant was almost certainly based on a cost-benefit analysis. It may have been informed by what the public would tolerate. On the one hand, there are the David Coles of the world arguing that Padilla just needs a little more love and he will be cured.  On the other, there were the Andrew McCarthys arguing that we should emulate 1970s Santiago and borrow some of the tactics on General Pinochet. The better course was likely somewhere in the middle.  What other factors should have driven this decision?  Despite the supposedly-independent efforts of Judge Luttig (which should not have been motivated some expectation of a reward for tilting in favor of the Administration, which would make him something less than independent), there was a real risk that the Supreme Court might not have agreed with Fourth Circuit.  If there was a prosecutorial option available -- and there apparently is -- the better course may well have been to make the tough decision, to bite the bullet and let the career prosecutors at Justice have at him.  That way, there is an end-game, and justice will be served.

In any event, the question of what to do with Jose Padilla was not for Judge Luttig to decide, any more than it was for David Cole or Andrew McCarthy.  If Executive Branch discretion is to mean anything, it is that these types of decisions must be made by those responsible for them.  This was exactly the principle Luttig tried to promote in his Fourth Circuit decision.

How did Luttig react when the Department of Justice’s decision did not conform with what he wanted to see happen?  On December 21, 2005, he delivered a bombshell, issuing an opinion refusing to move the now indicted Padilla to the custody of the U.S. Marshals, accusing the government of being unprincipled and practicing expediency.  This action, which looked suspiciously like a tantrum, was quickly reversed.  Padilla is now being treated like a criminal defendant, something that is not nearly as expedient as his prior detention status.

In the end, Michael Luttig chose to move on to greener pastures, which in America is everyone’s right to do. The only thing that causes someone to question his motives is the decision to publicize them in the national media. According to the Journal, people familiar with Luttig’s thinking said he had become disillusioned by the encroachment of politics on the judiciary, and the view that judges are on "our team" or "their team."  When combined with other statements reported in the article, these sound like the words of someone who is feeling unappreciated for the work he did on behalf of some political handlers, rather than someone who understood the role of a federal judge. 

Both the Moussaoui verdict and Luttig’s controversial exit thus offer the same lesson for the counterterrorism community. The stakes are too high for feelings to predominate over the law.

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R.K. Joyad is the pen name for a national security lawyer in Washington DC.

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