Tag: fighting terrorism

Try the 9/11 Conspirators in Both Federal Courts and Military Commissions?

That’s the proposal Benjamin Wittes makes in today’s Washington Post. Wittes says that by splitting the legal baby, by “charging the 9/11 case in both military commissions and federal court,” the Obama administration can satisfy political considerations on both sides of the aisle.

This is a path fraught with legal issues. The constitutional bar against double jeopardy would prevent a trial in one forum and re-trial in the other for the same actions. Wittes spells out his proposal in greater detail in this post at the Lawfare blog, and he acknowledges this risk. The same sovereign cannot try someone twice for the same crime and Wittes acknowledges that the “John Allen Muhammed Model,” named after one of the Beltway snipers, used the separate sovereigns doctrine in ways that do not apply to Guantanamo. The Beltway snipers were liable for separate crimes in Maryland and Virginia in a way that does not translate directly to the 9/11 conspirators.

Wittes recognizes these legal issues and proposes that federal prosecutors and military commissions prosecutors clearly separate the crimes they respectively charge.

I’d go further. The clearest way to make this work is not to “charg[e] the 9/11 case in both military commissions and federal court.” This proposal only works if you charge pre-9/11 conduct in an Article III court and the 9/11 attacks in a military commission.

The Double Jeopardy Clause of the Fifth Amendment would prevent “charging the 9/11 case in both military commissions and federal court.” Federal prosecutors charged Khalid Sheikh Mohammed well before 9/11 for his participation in the Bojinka Plot, a plan to blow up airliners over the Pacific Ocean. To the extent that he and other 9/11 co-conspirators can be charged with crimes related to Bojinka or other pre-9/11 attacks, this would pass constitutional muster. Otherwise, this is a not an advisable course of action.

Where Double Jeopardy is a concern, the broad sweep of Material Support of Terrorism (MST) charges works against the government, not for it. If an MST charge is used in federal court in anything 9/11-related, the defendants have an excellent case that it bars any charges related to that attack in a military commission and vice versa. MST charges don’t even belong in a military commission, as Assistant Attorney General David Kris warned Congress before it revised the commissions with the Military Commissions Act of 2009. So if you’ve got MST on your mind, best to keep it in a civilian court. The Court of Military Commissions Review is getting ready to weigh the validity of MST in the commissions in the case of Ali al Bahlul, so stay tuned.

The Double Jeopardy bar in prosecuting before a military commission and then in a civilian court is also grounded in first principles. When Benedict Arnold betrayed General Washington and the fortifications at West Point, he escaped. His co-conspirators did not. British Major John André was tried and hanged by a military commission. Joshua Hett Smith, a citizen of New York and citizen of what would become the United States, was likewise tried by a panel of military officers. The panel found insufficient evidence to convict him. The prosecution failed to establish that he knew the true object of André’s meeting with Arnold, and might have reasonably believed that he was ferrying a British officer to negotiations with an American officer without knowledge of Arnold’s betrayal. When Smith transferred to a local jail, the civilian grand jury found that he could not be tried for treason for the actions that previously subjected him to a military trial; his protection from Double Jeopardy stood firm.

Keep in mind, I’m not endorsing Wittes’ plan. Wittes has a lot of “creative” ideas that I think are destructive of the liberty we’re trying to protect. He says in his book, Law and the Long War, that the “psychological Rubicon” of preventive detention is something “we simply need to cross.” Count me opposed, as I said in this post. But it’s worth noting that, before anyone gets too excited about a bipartisan compromise, there are serious issues with two sets of trials for KSM and the rest of the 9/11 co-conspirators.

1,000 Troops = $1 Billion/Year

There is a useful math lesson buried near the end of Greg Jaffe and Karen DeYoung’s widely discussed story on an Afghan war game that the Obama administration is using to weigh the costs and risks of competing strategies.

One question being debated is whether more U.S. troops would improve the performance of the Afghan government by providing an important check on corruption and the drug trade, or would they stunt the growth of the Afghan government as U.S. troops and civilians take on more tasks that Afghans might better perform themselves. Another factor is cost. The Pentagon has budgeted about $65 billion to maintain a force of about 68,000 troops, meaning that each additional 1,000 U.S. soldiers in Afghanistan would cost about $1 billion a year.

I haven’t seen this figure before, and it is based upon a back-of-the-envelope calculation that might be undone by economies of scale. It is not obvious, for example, that the first 1,000 troops would cost the same as the last 1,000. Still, it is a reasonable estimate that is apparently being used inside of the Obama administration.

Accepting the number as basically accurate, the question then turns to “Is it worth it?” That can only be answered by weighing the opportunity costs.

If the Obama administration goes along with Gen. Stanley McChrystal’s request for more troops, and therefore chooses to spend additional money on this mission, the administration is saying, in effect, that an expanded troop presence will do more to prevent a repeat of 9/11 than if the money had been spent on countless other missions and programs ostensibly directed to the same purpose.

Count me a skeptic. There is considerable evidence that a large-scale and open-ended troop presence is counterproductive to fighting terrorism. Meanwhile, there have been a number of highly effective counterterrorism programs that cost far, far less than even $1 billion a year. The proponents of a huge troop increase in Afghanistan obviously disagree, and thus implicitly claim that $40 billion is money well spent (for reference, the entire Dept. of Homeland Security budget for FY 2010 will total $42.8 billion).

Let the advocates for a larger troop presence attempt to make that case. At least now we have a tangible measure for weighing competing options. Thanks to Jaffe and DeYoung for shedding some light on a previously under-reported statistic.

The Zero Percent Doctrine

I was never a fan of Dick Cheney’s one percent doctrine.

According to Ron Suskind, after 9/11 Cheney explained to law enforcement and intelligence officials that they should treat even the one percent chance of a terrorist attack as a mathematical certainty. The particular case was of a Pakistani nuclear scientist helping al-Qaeda to acquire a nuclear bomb, but the standard became a shorthand for U.S. counterterror efforts generally. No scale of effort would be too great. Better to chase down 100 leads, 99 of which turn out to be bogus, because finding just that one nugget would have been worth the level of effort.

Now we have evidence that the federal government is chasing down far more than 99 blind alleys for just one lead. From today’s front-page story in the New York Times, Eric Schmitt explains how the FBI has adapted and evolved since 9/11:

The bureau now ranks fighting terrorism as its No. 1 priority. It has doubled the number of agents assigned to counterterrorism duties to roughly 5,000 people, and has created new squads across the country that focus more on deterring and disrupting terrorism than on solving crimes.

But the manpower costs of this focus are steep, and the benefits not always clear. Of the 5,500 leads that the squad has pursued since it was formed five years ago, only 5 percent have been found credible enough to be sent to permanent F.B.I. squads for longer-term investigations, said Supervisory Special Agent Kristen von KleinSmid, head of the squad. Only a handful of those cases have resulted in criminal prosecutions or other law enforcement action, and none have foiled a specific terrorist plot, the authorities acknowledge. (Emphasis mine.)

So, just to review:

  • 5,500 leads over 5 years
  • 5 percent deemed credible
  • “A handful” technically would mean five or less, but charitably might total a few dozen. Still, that translates to far less than 1 percent of leads investigated resulting in a criminal prosecution.

But, and here’s the kicker,

  • None – zero, zip, nada – foiled a specific terrorist plot.

On the face of it, this seems like a waste of time and resources that should be spent elsewhere.

There are several plausible explanations, however, for why I’m wrong and why those who believe that we are not dedicating sufficient resources to combating terrorism are right.

  • Perhaps other government agencies have been far more effective at disrupting terror plots. (But when the relative comparison is zero, it isn’t very hard to clear that bar.)
  • Perhaps Schmitt got his facts wrong. (Doubtful. He is one of the most experienced and reliable reporters on the beat.)
  • Perhaps the knowledge that 5,000 people chasing down 5,500 leads deters would-be terrorists from even attempting anything. (Or it could simply be helping bin Laden’s plan “to make America bleed profusely to the point of bankruptcy.”)

Two other points bear consideration. First, it is possible that arresting, prosecuting and convicting people of lesser crimes disrupts what might someday become a full-scale terror plot. There is no reason to think that the guy trying to cut down the Brooklyn Bridge with a blowtorch was much smarter than the 15 guys who provided the muscle for the 9/11 attacks. The difference was leadership, which defined a plausible terrorist attack and devised the means to carry it out. That said, there are problems associated with the expansion of federal laws, and the growing power of prosecutors, and I would still much prefer that common criminals be handled in a run-of-the-mill fashion. Local cops, local prosecutors, local jails.

Which leads to the second point. Reflecting the growing federalization of the criminal law, the FBI strayed into a number of areas even before 9/11 that should have been handled by local law enforcement. This expansion of the federal criminal law poses a threat to individual liberty. (Thanks to Tim Lynch for pointing to this source.) But counterterrorism is one of the few legitimate functions for a federal law enforcement agency, and if the FBI is devoting more resources to that than to other crimes, that in and of itself wouldn’t be a bad thing.

I remain unconvinced, however, that what we are seeing is a wise expenditure of resources. And while I understand that zero terrorist plots uncovered is not equal to zero threat of a future attack, it is incumbent on the FBI – and more generally those who think that the problem is too little, as opposed to much, being devoted to counterterrorism – to prove why they need still more resources.

Until that occurs, I think that UCLA’s Amy Zegart, who is quoted in the Times story, should get the last word on this point:

Just chasing leads burns through resources. … You’re really going to get bang for the buck when you chase leads based on a deeper assessment of who threatens us, their capabilities and indicators of impending attack. Right now, there’s more chasing than assessing.

Civil Liberties and President Barack W. Bush?

It’s fair to say that civil liberties and limited government were not high on President George W. Bush’s priorities list.  Indeed, they probably weren’t even on the list.  Candidate Barack Obama promised “change” when he took office, and change we have gotten.  The name of the president is different.

Alas, the policies are much the same.  While it is true that President Obama has not made the same claims of unreviewable monarchical power for the chief executive–an important distinction–he has continued to sacrifice civil liberties for dubious security gains.

Reports the New York Times:

Civil libertarians recently accused President Obama of acting like former President George W. Bush, citing reports about Mr. Obama’s plans to detain terrorism suspects without trials on domestic soil after he closes the Guantánamo prison.

It was only the latest instance in which critics have argued that Mr. Obama has failed to live up to his campaign pledge “to restore our Constitution and the rule of law” and raised a pointed question: Has he, on issues related to fighting terrorism, turned out to be little different from his predecessor?

The answer depends on what it means to act like Mr. Bush.

As they move toward completing a review of their options for dealing with the detainees, Obama administration officials insist that there is a fundamental difference between Mr. Bush’s approach and theirs. While Mr. Bush claimed to wield sweeping powers as commander in chief that allowed him to bypass legal constraints when fighting terrorism, they say, Mr. Obama respects checks and balances by relying on — and obeying — Congressional statutes.

“While the administration is considering a series of options, a range of options, none relies on legal theories that we have the inherent authority to detain people,” Robert Gibbs, the White House press secretary, said this week in response to questions about the preventive detention report. “And this will not be pursued in that manner.”

But Mr. Obama’s critics say that whether statutory authorization exists for his counterterrorism policies is just a legalistic point. The core problem with Mr. Bush’s approach, they argue, was that it trammeled individual rights. And they say Mr. Obama’s policies have not changed that.

“President Obama may mouth very different rhetoric,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “He may have a more complicated process with members of Congress. But in the end, there is no substantive break from the policies of the Bush administration.”

The primary beneficiaries of constitutional liberties are not terrorist suspects, but the rest of us.  The necessary trade-offs are not always easy, but the president and legislators must never forget that it is a free society they are supposed to be defending.