Yesterday, the Senate Judiciary Committee held a full hearing on "Improving Detainee Policy: Handline Terrorism Detainees within the American Justice System." Thanks to a fellow Kossack, I was able to submit written testimony for the record. It probably won't get any press play, but it's the first time in this 7-year-old saga that I've officially given my story to Congress. In it, I offer a 2-pronged prescription for trying terrorist suspects in American civilian courts.
I have direct, personal expertise on this topic because I was the Justice Department ethics advisor in the case of "American Taliban" John Walker Lindh. In 2001, I told the Criminal Division, which was advising the FBI in Afghanistan, that Lindh could not be interrogated without his counsel. That was on a Friday. The Criminal Division called back on Monday and said that the FBI had interrogated him anyway. They wanted to know what todo. I advised that the interview would have tobe sealed and used only for national security purposes or intelligence-gathering, not criminal prosecution. Again, my advice was ignored.
Three months later, I inadvertently learned of a discovery order, which had been deliberately concealed from me, for all justice Department correspondence related to Lindh's interrogation. When I went to comply, my e-mails had been purged from the file. With the help of technical support, I recovered them from my computer, turned them over to my boss, took home a copy in case they "disappeared" again, and resigned.
Despite my experience, I still believe that the civilian courts are the best way to handle terrorism detainees, with two caveats: first, do not taint legal proceedings against suspected terrorists by engaging in torture or abusive interrogation techniques; second, follow the rule of law.
The reason that the case against Lindh imploded was because, although the Justice Department was eager to prosecute him in the criminal courts, both of these tenets were disregarded. As an initial matter, Lindh was blindfolded, duct-taped naked to a board, and held in an unlit shipping container for days. The Department of Defense knew that this evidence would come out a Lindh's suppression hearing, and leaned on the Justice Department to offer an eleventh-hour plea deal in order to prevent early exposure of its new policy on the torture of captives in the war on terrorism. As part of the plea, Lindh had to swear that he had "not been intentionally mistreated" and waive any future claim to torture. Abusive interrogation techniques and torture will likely taint any legal proceedings against suscpected terrorists.
The second reason the Lindh case collapsed was due to flouting the rule of law. Pulitzer-prize winning journalist Eric Lichtblau's book, Bush's Law, recently documented a clash that had never before become public. Alberto Gonzales, who was then White House counsel, made it clear that the White House was calling the shots and that he, as White House counsel, had decided not to turn anything over to Lindh's defense lawyers in the way of documents.
The White House improperly inserting itself into the judicial process, and the Judtice Department incompletely complying with discovery, is just one of many examples of not following the rule of law. Another example is FBI agent Christopher Reimann, who admits that when informing Lindh of his right to counsel, ad-libbing, "Of course, there are no lawyers here . . .' Cutting corners in the judicial process undermines the legitimacy of the criminal justice system and is unacceptable.
Our government has experience and success in using civilian criminal courts to combat organized crime and terrorism -- prosecuting Mafia bosses, drug kingpins, domestic terrorists such as Timothy McVeigh and Ted Kaczynski, and foreign terrorists. Ramzi Yousef, mastermind of the first World Trade Center bombing, was convicted for the 1993 attack in a federal criminal court. Wadih el-Hage, and American citizen, was convicted in a civilian court for bombing the American embassies in Kenya and Tanzania. Despite some procedural bumps [due in large part to violating prong #1, namely torturing these guys], French national Zacarias Moussaoui, and American citizen Jose Padilla, have been convicted in civilian court during the current war on terrorism. The military tribunals that have been established at Guantanamo Bay have proven to be a poor substitute for the federal criminal courts, which are well-equipped to handle such cases.