10 March 2010

Terrorism on Trial: Agility is Our Greatest Tool

Introduction: Poll Data
Two weeks ago, we Editors of al Sahwa requested you share your thought in response to our first-ever poll question, "How should suspected terrorists be tried in the United States of America?" The majority, 44%, concluded that terrorists ought to be tried on a case-by-case basis.

This past week, we asked a more particular question, "How should KSM be tried in the United States of America?" The majority, 58%, think he ought to be tried in a military tribunal while 37% think that a civilian trial ought to proceed.

Our Tool: Legal Agility
The US is engaged in a war against al-Qaeda; we seek to dismantle their expanding operational environments and counter their narrow apocalyptic narrative. It is consistently re-iterated that our leaders need to utilize every tool we have mastered and continue to develop innovative ones that are intellectually intuitive and mechanically strong. All-the-while, AQ's ideological strategy and operational tactics shift and morph, often tailored to local strongholds while maintaining a "global jihad." Our tools that provided solutions earlier falter or lag in delivering results if we do not proactively and interactively stay ahead of the cycle.

We must be agile in our discernment on how to put terrorism on trial, and to aid our dialogue I assess here three separate yet interconnected cases. They are separate because they each have different circumstances, but they are interconnected because each highlights what type of enemy(ies) we are fighting. Both aspects can support our decisions on how to use our tools to dismantle and counter.

KSM: International Combatant
Much political back-and-forth continues to surround the case of KSM. I do think that such debate can cause confusion - an atmosphere I think AQ wants as a part of its Phase IV Strategy to disrupt our culture and values in aiding its targeting of economic and military structures - but also create fervent dialogue about who we are and what actions we need to take. We need to get it right in order to secure our freedoms.

KSM, by definition, is a international terrorist, an unlawful enemy combatant who planned and executed the horrific attacks on the World Trade Center and Pentagon (and caused the crash in Pennsylvania) carried out on Thursday, September 11, 2001. As a part of Phase I of AQ Strategy, he spearheaded the most successful attacks from an international, geographical coordinates on the "Far Enemy," the infidel of the West. This was the beginning of the jihadi awakening, a showcase of AQ's operational power.

In short, KSM ought to be tried in a military tribunal according to the Military Commissions Act, which bestows authority on the President of the United States to establish such commissions to try an unlawful enemy combatant;
"(i) a person who has engaged in hostilities or who
has purposefully and materially supported hostilities
against the United States or its co-belligerents who is
not a lawful enemy combatant (including a person who
is part of the Taliban, al Qaeda, or associated forces);

‘‘(ii) a person who, before, on, or after the date of
the enactment of the Military Commissions Act of 2006,
has been determined to be an unlawful enemy combatant
by a Combatant Status Review Tribunal or another competent
tribunal established under the authority of the
President or the Secretary of Defense."

The political implications of where such a tribunal is held shall be debated and disputed by representative parties, but most importantly, this process restricts habeas corpus and/or the Brady Rule. Moreover, Subchapter I (Trial Procedure), Section 949d (Sessions), stipulation 3f seeks to safeguard classified information;
information shall be protected and is privileged from disclosure
if disclosure would be detrimental to the national security.
The rule in the preceding sentence applies to all stages of
the proceedings of military commissions under this chapter.
‘‘(B) The privilege referred to in subparagraph (A) may
be claimed by the head of the executive or military department
or government agency concerned based on a finding by the
head of that department or agency that—
‘‘(i) the information is properly classified; and
‘‘(ii) disclosure of the information would be detrimental
to the national security.
Our legal system can in no way serve as an entry point for AQ, both Central and affiliates, to penetrate our process, procedures, and protocol.

In conclusion, having made the points that KSM ought to be tried in a military tribunal due to his status as an "unlawful enemy combatant" in alignment with his international operations as well as the process of safeguarding national intelligence, I think our legal tools inherent in the proceedings will pragmatically serve justice and define the US as a nation that is willing to use every masterful, logistical avenue we have to assist in the disruption and countering of AQ abroad.

Zazi: Transnational Combatant
Zazi, who recently pleaded guilty for his acts of conspiracy against the US in planning to execute an attack in NYC on the subways, is also an enemy combatant. However, is a transnational terrorist who was trained abroad and sought to carry out plans on American soil after receiving instructions from AQ conspirators. He purchased the materials in the US, drove a van in the US, resided here, ate, slept, and went to the bathroom here. (I am usually not this loose in my language, but wish to make a point). When considering the case of KSM, Zazi's intentions and acts certainly showcase a progression in the AQ Strategic Plan (Really, you must the report linked here): Operatives have been (and will continue to be) deployed to bring the fight to the far enemy in close quarters. Zazi used deception and deceipt while operating amongst the infidel who was his "Near Enemy," a term conventionally applied to US military soldiers and civilians "occupying" international countries.

Unlike KSM, Zazi was monitored, tracked, and arrested on American soil by FBI federal agents, which all give reason(s) to proceed with a civilian trial in accordance with the US Constitution, for example:
a) How due process shall be carried out;
1. Amendment Six: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
2. Amendment Seven: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Zazi's guilty plea is good and useful, and was most likely facilitated through the leveraging of his parents' immigration status. However, even in light of this we must decide how habeas corpus and the Brady Rule, only two tools of many that can be used by suspected terrorists to delay the process, will affect civilian procedures and allow terrorists to ambiguously guise their fidelity to anti-American principles of justice. For example, Ghailani, a suspect in 1998 Embassy bombings in Kenya and Tanzania, has argued his right to a speedy trial has not been met and the charges against him must be dismissed.

In conclusion, the circumstances particular to Zazi's case fittingly serve to aid our efforts to dismantle and counter AQ in a civilian trial and promise to uphold and promote our legal values and traditions; although, I think issues will arise given the availability of rules like Brady. Our discernment does not end once the civilian trial ensues.

Conclusion: Agility & Abdulmutallab
More cases of international and transnational combatants are bound to present vague circumstances for the US legal system. When I was little, my parents bought me that wooden fraction set which taught me how to fit pieces in their rightful place; circles in circles, squares in squares, and triangles. The scenarios presented by AQ tactics and ideology are not as easy as fitting wooden pieces in their place, and Abdulmuttalab's case, I think, presents such a challenge.

Abdulmutallab is also an unlwaful combatant, but he is a terrorist that trained abroad and committed an act of terrorism while in transnational movement on an international flight destined for US. (Regardless of his failure to accomplish the act, thank God, his motive and intention is cause enough to call it a terrorist act). Is he, then, by definition, an international or transnational terrorist? He was only arrested on American soil. Like Zazi, the US pragmatically leveraged his parents as a resource for information, but unlike Zazi, arguments hold that his circumstances still give reason(s) for military tribunal even though a civilian trial will proceed.

Whether or not a military or civilian trial ensues, this is an oppotune time to establish the protocol for issuing miranda rights; to whom, when, and for what reasons.
By no means am I, you, and/or our allies thankful for such an opportunity (as we work to prevent them at all times), but Abdulmuttallab's case begs us to formulate a structure particular to these circumstances that answers my initial question; namely, "How do we exploit our resources to be right and pragmatic; to ensure an outcome that serves justice and maintains processes and procedures?"

For one, current arguments support the allowance of time for suspects to first be interrogated and then read miranda rights. Although pragmatic, yes, the implications of these actions will reverberate as we consider the cases of international detainees at Guantanemo like Khadr, who's Defense argued "The procedures governing the appointment of the Chief Trial Judge and Military Judge in [his] Military Commission contravene Mr. Khadr’s right to be tried by a fair and impartial tribunal" as well as persons operating domestically like Hasan and the newly infamous, Jihad Jane. The Obama Administation may eventually argue to use "custodial interrogation" with suspected terrorists, which prescribes procedures during interrogation after miranda rights have been issued.
Moreover, our work will shape our domestic and foreign policies, and will certainly serve as an aid (or rebuttal of) legal procedures elsewhere: We shall consider those undertaken in Pakistan trying five men once operating in Virginia and another trying four men in a court in Duesseldorf. If we succeed, others will too. If we preserve, others will follow.

The process by which we put terrorism on trial will prevent terrorists from returning to battle, as I do not think it will stop terrorists from being recruited: AQ ideology targets also Western economic and social practices, along with military and civilian operations to generate recruitment efforts.
With the expansion of operational environments and ever-morphing AQ tactics, a case-by-case method of legal proceedings will effectively and efficiently aid in the disruption and countering of international, transnational, or - most dangerous to our immediate security - domestic plots against the great nation of the United States of America because we will be able to consistently show how fortified we are; that we figured it out and no attack can decay who we are and what actions we take to safeguard our Nation, our values and traditions.

We have the agile tools to get it right the first time around, and for that matter, every time.

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