x Abu Dhabi, UAEThursday 18 January 2018

Justice and the Enemy: due process must yield to terror fight

William Shawcross, a once left-leaning critic of US policy during the Vietnam War, has shifted decisively to the right.

Justice and the Enemy
William Shawcross 
Public Affairs
Justice and the Enemy William Shawcross Public Affairs Dh88

This is not a book readers might expect from the best-selling, award-winning, left-leaning author of Sideshow. In that 1979 book, which did much to establish his reputation, the British writer William Shawcross condemned the US expansion of the Vietnam War into Cambodia as “a crime”. Over the next 33 years, Shawcross would gradually shift his view of American military policy and the threats facing the West.

In his new book, Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed, Shawcross now asserts that special military tribunals and waterboarding are sometimes necessary techniques to fight terrorism, that the international Geneva Conventions on the protection of prisoners of war are outdated, that conditions at the Guantanamo detention centre in Cuba really aren’t that bad, and that George W Bush, the former US president, is actually an unappreciated hero.

Still, if Shawcross is no longer a diehard liberal, he is also not quite a diehard conservative either. While the book lacks original research and resorts to some phony arguments, the author is an intelligent, thoughtful writer who raises important questions (without easy answers) about how to confront a different kind of enemy.

As he writes: “Since 9/11, America’s attempts to balance justice and national security have drawn criticism at home and abroad. Some has been fair but much of it ignores the difficulties and dilemmas that the US government faces in dealing appropriately with terrorists while fulfilling its principal obligation to protect the lives of its own citizens.”

The main thesis of Justice and the Enemy is woven around the story of Khalid Sheikh Mohammed, the Kuwaiti-born so-called “mastermind” of the September 11, 2001 terrorist attacks on the United States. A close ally of Osama bin Laden, KSM – as he is often known – recruited, trained, organised and equipped the men who carried out those atrocities. That wasn’t all: he helped finance the 1993 bombing of the World Trade Center in New York and the bombing of a nightclub in Bali in 2002. He also claimed to have helped prepare Richard Reid, the British “shoe bomber” whose attempt to blow up an airplane was thwarted by fellow passengers in 2001. And KSM was almost certainly the person who beheaded the US journalist Daniel Pearl in 2002.

He was captured in Pakistan in 2003 by Central Intelligence Agency and Pakistani security officers. Held in a series of secret “black site” prisons in foreign countries, he refused to confess anything, taunting his captors and threatening more attacks. He was waterboarded multiple times (the exact number is in dispute), a practice which Shawcross grimly describes: “The prisoner is strapped with his head down on a tilted board; his face is wrapped in damp cloth onto which water is poured for 20 to 40 seconds. This gives the sensation of drowning.” While critics call this torture, the classic defence for such a technique is to say that its use may be the only way to get hardened terrorists to reveal crucial information that may prevent future violence.

Apparently the technique worked on KSM, who spewed out “seminars on Al Qaeda’s structures, personnel, logistics, communications, plans, and ambitions”. He was later formally charged with almost 3,000 counts of murder relating to the September 11 attacks alone and the Bush administration prepared to put him on trial through one of the special military tribunals that it had created for terrorist suspects.

By then Barack Obama had been elected president, and 21 months later, in November 2009, his attorney-general, Eric Holder, announced that KSM’s trial would be conducted through the regular US judicial process. Holder explained that this would “teach the entire world about who we are but also the basic principles of the rule of law”.

If that seemed idealistic, it also seemed appropriate. After all, wasn’t that what America was fighting for – to demonstrate the difference between the terrorists’ fanaticism and western values of due process, tolerance and equal justice for all, regardless of religion or the heinousness of the alleged crime? A trial of Khalid Sheikh Mohammed under the US legal system would prove that the American way of life had triumphed after all.

However, Obama reversed Holder’s decision, and today KSM awaits trial before a military commission, to be held at Guantanamo, the political risks considered too high that KSM would get away scot-free in a civil trial.

The key factor here is that many types of evidence are allowed in military tribunals but not civil courts – including hearsay, evidence from coerced confessions, evidence obtained without a warrant, and evidence that had been collected in the chaos of KSM’s arrest in Pakistan, even if the unimpeded legal “chain of custody” had been broken along the way. Moreover, in a regular courtroom, KSM could argue that pretrial publicity made it impossible for him to get a fair trial.

Shawcross also asserts that a military trial would still share some of the basic protections of the civilian version. It would be open to the press, and the verdict “can be appealed all the way through the federal courts to the Supreme Court”.

The worst fears of a regular trial were almost borne out in the first terrorism case to be handled that way, the trial of Ahmed Khalfan Ghailani, a Tanzanian accused of participating in the deadly Al Qaeda bombings of the US embassies in Dar es Salaam and Nairobi in 1998. He was acquitted of 284 murder charges and found guilty of only one charge, conspiracy to destroy US government property.

True, Shawcross concedes, one of the sacred credos of western law is that “it is better for 10 guilty men to go free than to have one innocent man convicted”. But he goes on to ask “whether that generous principle must always be extended to those who have boasted that their principal ambition is to murder their way to a destruction of the rule of law and its replacement by a sectarian dictatorship”.

Or, to put it another way, it’s one thing to extend the protection of the law to people who basically accept the validity of that legal system, even if they try to get away with breaking the laws. But why should a society extend those protections to people who refuse to accept the society’s jurisdiction – indeed, who actively and violently seek to destroy its foundations?

Unfortunately, Shawcross’s biases often undercut his credibility, even while he seems to be looking at both sides of the debate. For instance, almost his first words about attorney-general Holder are that he “was an old friend of President Obama’s” who had “attracted unfavourable publicity” for his role in a controversial pardon granted by then-president Bill Clinton. Of course, the book could just as accurately have introduced Holder as the first African-American attorney-general and a lawyer with experience in both government and corporate fields.

Then he castigates Obama for belittling the 1989 truck-bombing that killed 241 marines at the US base in Beirut, asserting that the president should have clearly stated that Hizbollah, Iran, and Syria were behind the attack. As Shawcross notes, the attack succeeded in its goal “to drive the US out of Lebanon”. What he fails to mention was that it was the Republican president Ronald Reagan who effectively handed over that victory by withdrawing the marines.

Worst of all, this book adds no new research to its rehashing of old newspaper and magazine articles.

Also, the Nuremberg reference in the subtitle is misleading. The Nuremberg trials of Nazi war criminals after the Second World War – where, not coincidentally, Shawcross’s father was the British lead prosecutor – is a secondary thread, and the comparison to Bush’s military tribunals is not particularly original. However, for readers who are not thoroughly schooled in this era of history, it’s interesting to learn of the debate among Franklin Roosevelt, the US president, Winston Churchill, the British prime minister, and the Soviet leader Joseph Stalin about how to handle potential Nazi trials. Stalin proposed a firing squad for tens of thousands of top-ranking German officials.

All those flaws, nevertheless, don’t detract from the important questions about fighting terrorism – on the battlefield and in court – raised by Justice and the Enemy, and these questions seem likely to be relevant for some time to come.

Fran Hawthorne is an award-winning US-based author and journalist who specialises in covering the intersection of business, finance and social policy.