Book Review: 'The Terror Courts' By Jess Bravin : NPR
A Bona Fide American Tragedy In 'The Terror Courts'
The torture of alleged terrorism suspects at Guantanamo Bay — first reported by the Red Cross in 2004 and since attested in thousands of declassified memos and acknowledged by a top official in the administration of George W. Bush — has never been far from the headlines, and rightly so. But another breach of human rights and American values at the Cuban prison camp gets far less attention: the secretive military commissions that prosecute these suspects away from the American justice system. In this parallel legal universe, normally inadmissible material is as good as gospel; the accused can be denied access to evidence; the military can censor any proceedings it chooses; and even an acquittal doesn't mean you'll be released.
Jess Bravin, a reporter for the Wall Street Journal and a tireless investigator of this secretive world, has been traveling to the Guantanamo courts since they opened in August 2004. The Terror Courts, his exhaustive and highly disturbing history of the nation's shadow justice system, takes us deep into the heart of the military and its unprecedented effort to retain legal control over detainees. It reads at times like a political thriller, with dramatic showdowns between Bush officials and military veterans. But this book isn't fiction. It's not even really a history: These commissions are still going on.
It's forgotten now, but in the days and months after the Sept. 11, 2001, attacks, none of the major arms of the national security service — not the CIA, not the FBI, not the Justice Department, not the Pentagon — contended that the federal courts were inadequate to handle the task of prosecuting and convicting terrorists. Rather, as Bravin shows, the construction of a parallel legal system was a governmental power grab: a shift of authority from the legislative and judicial branches to the executive, masterminded by Bush-era lawyers and advisers such as David Addington, the vice-presidential legal counsel known as "Cheney's Cheney," and John Yoo, who penned the so-called "torture memos" at the Justice Department. These architects of the expansive executive branch did not want an ad hoc military tribunal, such as in Nuremberg after World War II. They wanted their own permanent system, under their control, and they built it from scratch. "In effect," writes Bravin, "today's military commissions are the legal equivalent of a war of choice."
Bravin details the many legal battles, reaching all the way to the Supreme Court, that surrounded the creation of the commissions. But the hero of Bravin's book, if that's the right word, is Stuart Couch, a Republican lawyer with the U.S. Marine Corps who volunteered for the military commissions after his friend died on Sept. 11. With Couch as his guide, Bravin describes the creation of the tribunals, the sapped morale among their participants, and the pressure from Bush appointees on figures lower down the chain of command.
Couch couldn't wait to prosecute Mohamedou Ould Slahi, a Mauritanian radical imam (who is still being held at Guantanamo Bay) — but it didn't take long before he concluded that the evidence he had to work with was inadmissible if not worthless. As Bravin reports, at Guantanamo Slahi was stripped naked and subjected to a probe of his anal cavity; beaten so hard that he suffered "rib contusions"; exposed to extreme temperatures under a heater or in a room known as "the freezer"; forced to stay awake amid blaring rock music and strobe lights; and taken to a room whose walls were covered with images of women's genitalia while female interrogators rubbed their breasts over his body.
Eventually he provided his interrogators with some kind of testimony. But Couch, a devout Christian, at first had religious misgivings about torture, then legal ones. When he told his superior that Slahi's interrogation had violated the Geneva Conventions and other treaties, he was waved away. So he refused to prosecute. "I hate to say it," he tells his wife, "but being a Christian is going to trump being an American."
Couch, like other brave figures in the military and the administration, spoke out about the inadequacy of the tribunals, but that hasn't made them go away. When he came to office in 2009, President Obama promised to shut down Guantanamo Bay (he did not, of course), but he didn't exactly promise to end the military tribunals that were taking place there. Khalid Sheikh Mohammed — the Sept. 11 mastermind whom Eric Holder attempted and failed to have tried in New York — is currently being prosecuted in one of these tribunals, and as Bravin witnesses from the press box at Gitmo, it's a fiasco. The defendants fail to acknowledge the legitimacy of the court, while a military censor hits a button to cut the audio feed to journalists, families of Sept. 11 victims and the rest of the outside world.
Why has Obama, a distinguished constitutional law scholar in an earlier life, failed to roll back the massive expansion of executive power orchestrated by the last administration's lawyers and advisers, people whose vision of justice he doesn't come close to sharing? Bravin speculates that the president really did want to end the program but thought "his political capital was better spent on other priorities — health care, economic recovery, the Iraq drawdown." Given Obama's embrace of drone strikes and other elements of Bush's military strategy, that may be a wishful read. Whatever the reason, the military commissions now have "a bipartisan imprimatur that virtually ensures they will be a fixture of American law for years to come." It's a stark conclusion to this essential book, but a necessary one. The Terror Courts may read like a thriller at times, but really it's something else: a bona fide American tragedy.
Read an excerpt of the Terror Courts
Excerpt: The Terror Courts
Prologue
November 24, 2001. Around Noon.
Checkpoints were common as potholes on the roads of Afghanistan. Salim Ahmed Salim Hamdan, driving north on Highway 4 in a Toyota hatchback, was not surprised to be stopped by a group of armed men as he approached the fortified town of Takht-e Pol.
Afghanistan was at war. It had been at war for decades. On October 7, less than a month after terrorist attacks obliterated the Twin Towers in New York and destroyed part of the Pentagon in Washington, the United States had become the latest entrant in the Afghan wars. American air strikes and Special Forces backed a loose confederation of militias hostile to the ruling Taliban movement, but here, in Kandahar province, the Taliban still dominated. The city of Kandahar, according to legend founded by Alexander the Great, was the home of Mullah Mohammed Omar, a half-blind cleric who led the Taliban with the aid of Pakistani intelligence. Highway 4 ran southeast from Kandahar to the frontier, into the Pakistani province of Baluchistan and its capital, Quetta. In recent decades, Quetta had been transformed by an influx of Afghan refugees and the elements that inevitably accompanied them: arms dealers, drug smugglers, factional cadre, intelligence agents. The city, which sat just outside the war zone, was a haven for various parties with an interest in Afghanistan. As the American-led campaign turned toward Kandahar, more Afghans would set out along Highway 4 seeking safety in Quetta.
But Hamdan was headed the other way: to Kandahar. And to his apparent surprise, the fighters at the checkpoint weren't Taliban but part of the enemy Pashtun militia. Hours before, American air strikes had blasted out Takht-e Pol's Taliban defenders, allowing fighters from the eight-hundred-man militia under the warlord Gul Sharzaito enter the town without firing a shot. These fighters, nominally loyal to the former king, Mohammed Zahir Shah, were clandestinely obliged to the Central Intelligence Agency.
Sharzai's men had set up highway roadblocks north and south of Takht-e Pol, which would serve as a staging ground for a coming assault on Kandahar, after another American-paid Pashtun militia—this one headed by Hamid Karzai—arrived from the north. Traffic had been slight. Earlier, a white van had tried to blow past the checkpoint, prompting a shootout that left two Egyptian occupants dead and a third man captured, a Moroccan whose name would turn out to be Said Boujaadia.
Hamdan was not so bold. He tried to flee, but the Afghans nabbed him and immediately identified him as an Arab. He was being dragged away to an uncertain fate when the American officer managing the Sharzai operation, Major Hank Smith, showed up to see what the shooting was about. The Pashtuns pointed to two SA-7 Grail surface-to-air missiles in battered, olive-drab carrying tubes. They said the missiles had been taken from the Arab's car.
With barely a dozen Americans on hand—soldiers and CIA—Smith hardly was equipped to deal with enemy prisoners of war. Still, Afghan militias were even less inclined to take prisoners, and summary execution of captured enemies was not unknown as a local tradition. Smith had his American soldiers take Hamdan and Boujaadia, hooded and bound, to a nearby shack.
A search of the Toyota turned up two passports, Yemen Airways tickets for Hamdan and a woman named Fatima, a handheld radio, brevity codes—a form of radio shorthand—and a folder with newspaper and magazine articles about al Qaeda. Plenty of cash was found—$1,900, plus about $260 in Pakistani rupees. There was a passport photo envelope from Razi's Portrait Inn Studio and Express Lab, located in Unit 44 of the Shalimar Shopping Center in Karachi, Pakistan. There were five photos of a baby girl. And there were letters. One, handwritten in Arabic on a page ripped from a small spiral-bound notebook, was addressed to "Brother Saqr."
"I hope you and all the brothers with you are well," it read. "If possible, please send me 25 to 30 original Russian Pikka"—a type of machine gun—"belts. Likewise, if you can find Pikka magazines. Most of the Pikkas we have do not have them and we are in urgent need of them. Even Grenav"—another Soviet-made weapon—"magazines will work. We cut them off and adapt them for the Pikka in the workshop. Please do whatever you can.
"Your brother, Khallad."
P.S. "Can you find three military compasses for us? They said there are a lot of them in Kabul."
Major Smith looked at the SA-7s, now sitting on the tailgate of a blue pickup. By themselves, they were inoperable. No launchers or firing mechanisms had been found.
The Taliban had no air force. The only planes in the sky, the only possible target for a surface-to-air missile—the sort of weapon that in the 1980s, when supplied by Washington to the mujahideen, had proved so devastating to the Soviet military—was the American-led coalition air forces. After photographing the missiles to include in a future report, Smith ordered them destroyed. Not so Hamdan's car. He affixed an orange insignia to the hood, the signal to coalition air forces that the vehicle was friendly, and gave the car to one of his local interpreters. Smith considered it a form of "recycling."
Small and swarthy, Hamdan sat on the dirt floor of a mud hut, his hands bound before him in flexicuffs. With a video camera running, a masked US Army interrogator questioned him in Arabic. An armed guard stood behind the prisoner, remaining silent as the interrogator struggled to make himself understood through his heavy American accent.
Hamdan spoke rapidly, his eyes bright, his smile and occasional nervous laugh suggesting he knew his number was up. He said he had come to Afghanistan as a relief worker for al Wafa, an Islamic charity. But with the recent fighting, he had borrowed a car to take his wife and daughter to safety in Pakistan. The car wasn't his—he had borrowed it from somebody named Abu Yasser—and neither were most of the items found in it. Sure, he knew there were SA-7s in the trunk, he said, but they must have belonged to Abu Yasser. Yes, he had heard of al Qaeda, but he knew little about it. "I heard that they train people who come to Afghanistan for training," he said. Perhaps he didn't expect ever to leave that hut. "I am not lying to you," he said.
"It's all finished for me, why should I lie?"
Years later, from a cell at Guantanamo Bay, Hamdan recalled the events somewhat differently. He had been working in Kabul when the fighting began in October 2001, and feared for his wife and daughter in Kandahar. So he asked his boss, Osama bin Laden, for permission to go to them. "I decided to borrow a car to drive my family to Pakistan," he said. After depositing them near the border, "I tried to return to Afghanistan to return the car to its owner," and to sell his belongings to raise enough money to get the family back to Yemen. But he was stopped by Afghans "looking for Arabs to sell to American forces. When they stopped me, they had already taken another Arab who they shot and killed. I tried to flee, but I failed and they captured me again. They tied my hands and feet behind me like an animal with electrical wire . . . so tight that the wire cut me."
He was taken to a house and then moved to another, "for seven days, where I was questioned by a man in a military uniform who spoke Arabic and said he was an American. The Afghan soldiers told me they had gotten $5,000 from the Americans for me," Hamdan said. He said he saw the money himself.
According to the account dictated from his jail cell in 2004, Salim Hamdan was born in 1969, perhaps, in the rural village of Khoreiba in the southeastern Yemeni region of Hadhramout. That was two years after the British pulled out of the country, which they had ruled as the protectorate of Aden. The newly independent state, following then-fashionable ideological fads, proclaimed itself the People's Republic of South Yemen and later the People's Democratic Republic of Yemen, a minor satellite in the Soviet orbit. In contrast, the adjacent Yemen Arab Republic, better known as North Yemen, independent since the collapse of the Ottoman Empire after World War I, tilted more toward the West, despite its squabbles with adjacent Saudi Arabia. The rival Yemens, among the poorest countries in the Arab world, fought occasional battles that commanded little attention outside the region, until in 1990, in an equally overlooked event, the two states merged.
It was unclear what impact these political developments had on Salim Hamdan. Orphaned as a child, educated perhaps to a fourth-grade level, he spent the 1980s living with relatives in the port city of Mukalla, working odd jobs. At age twenty, he drifted westward to the newly unified Yemen's capital, San'a, "to seek better employment opportunities," he said. He drove a dabbab, a type of jitney, but fortune passed him by until 1996, when he met a man seeking recruits "to aid Muslims struggling against the communists in Tajikistan," he said. That former Soviet republic, on Afghanistan's northern border, was the next target for the international Islamic fundamentalist movement that had toppled the pro-Moscow regime in Kabul.
Traveling to Afghanistan via Pakistan, Hamdan proved less than a relentless mujahid for the Tajik struggle. "I met with other Muslims who were going to Tajikistan," he recounted. "We traveled by plane, then by car and then by foot until we got to Badashaw," on the Tajik border. But "the forces at Tajikistan wouldn't allow us to go further, and the weather in the mountains was bad." Rather than battle the elements or the border guards, "we turned around and left for Kabul." Hamdan said he just wanted to go home to Yemen, but a comrade named Muhammad reminded him there was no work to be found there. Besides, there was a better opportunity. Muhammad had gotten a lead on a suitable job for Hamdan. "He took me to a farm in Jalalabad, where I met Osama bin Laden," Hamdan said. The emir "offered me a job as a driver on a farm he owned, bringing Afghan workers from the local village to work and back again." As the year passed, Hamdan gained bin Laden's confidence. He "began to have me drive him to various places," Hamdan said.
Bin Laden's family also came from Hadhramout—his father Mohammed was born there—which perhaps explains the austere ideologue's affinity toward his barely literate driver. Soon, bin Laden was functioning as a surrogate father, even arranging for Hamdan's marriage. Bin Laden sent Hamdan and another courtier recruited from the Tajik expedition, Nasser al-Bahri, to Yemen to marry sisters. Al-Bahri,a Saudi who adopted the nom de guerre Abu Jandal, had become one of bin Laden's chief bodyguards. He now was also brother-in-law to Hamdan, who would himself take an al Qaeda name of Saqr al Jeddawi, the Hawk of Jeddah.
Hamdan's resistance training proved somewhat deficient. After capture at the checkpoint, Hamdan later recounted, "I helped and cooperated with the Americans in every way," even though—or perhaps because—they "physically abused" him. "When I took them to the places I had driven Osama bin Laden, they would threaten me with death, torture or prison when I did not know the answers to their questions. One of their methods to threaten was to put a pistol on the table in front of me" and ask, "'What do you think?' "
Within weeks of September 11, the United States had orchestrated regime change in Afghanistan. Directed by intelligence units like the one Major Smith commanded and backed by coalition airpower, the Northern Alliance and other anti-Taliban militias pushed out the black-turbaned Islamist foe. Prisoners, by the hundreds, were a dividend of this surprisingly rapid success. With US forces offering bounties for al Qaeda fighters, typically five thousand dollars or so, Afghan tribesmen turned over hundreds more, assuring the Americans that the prisoners were terrorists.
The US commander, General Tommy Franks, didn't want the small number of ground troops he had in Afghanistan tied up guarding enemy prisoners. That suited the Bush administration. It had developed plans to build a special kind of detention center in the Pentagon's own time zone, at the US naval base, Guantanamo Bay, Cuba. Anew enemy would face a special kind of reckoning, trial by military commission, that could see prisoners prosecuted, convicted, and executed at President George W. Bush's command. Officials called it "rough justice." Guantanamo would be al Qaeda's Nuremberg, the end of the line for perpetrators of monstrous crimes.
Yet Guantanamo held no Mullah Omar, no Ayman al-Zawahiri, no Osama bin Laden. Al Qaeda's high command somehow had evaded the campaign the Pentagon called Operation Enduring Freedom.
A handful of real al Qaeda commanders would fall into American hands — Abdelrahim al-Nashiri, Ramzi Binalshibh, and the terrorist entrepreneur who conceived the 9/11 attacks, Khalid Sheikh Mohammed. The Bush White House, however, would decide that these men were far too important to put on trial. They were sent instead to years of secret detention and sometimes brutal interrogation within a clandestine prison network the CIA operated overseas. Despite pledging to bring the 9/11 conspirators to justice, President Bush hid them from prosecutors and even the abbreviated trial process he had prescribed for the alien enemy.
Pentagon prosecutors, ordered to create a justice system from scratch, scoured their prisoner lists for suitable defendants. Bin Laden had gotten away. But they had his driver.
Excerpted from The Terror Courts: Rough Justice at Guantanamo Bay by Jess Bravin, to be published in February 2012 by Yale University Press. Copyright 2013 by Jess Bravin. Reprinted by permission of Yale University Press.
