David Kris, the former head of the Justice Department’s National Security Division and an expert in national security law, has published in a scholarly journal a lengthy defense of the use of criminal prosecution as one tool in the larger counterterrorism toolbox. Kris is universally respected on both sides of the aisle: he worked on national security issues from 2000-2003 in the Ashcroft Justice Department and was confirmed 97-0 in March 2009 by the Senate for the Obama administration post.
Kris boils down his case as follows:
As I understand it, the argument for excluding law enforcement from
counterterrorism is basically the following:
(1) We are at war.
(2) Our enemies in this war are not common criminals.
(3) Therefore we should fight them using military and intelligence
methods, not law enforcement methods.
This is a simple and rhetorically powerful claim, and precisely for that reason it may be attractive to some. In my view, however, and with all due respect, the argument is not correct. And it will, if adopted as policy, make us less safe. Of course, I do not contend that law enforcement is always the right tool for combating terrorism. But it is not the case that it is never the right tool. The reality, I think, is that it is sometimes the right tool.
And whether it is the right tool in any given case depends on the specific facts of that case. Here is my version of the argument:
(1) We are at war. The President and Attorney General have said this many times.
(2) In war, the goal is to win – no other goal is acceptable.
(3) To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the
tool that is best under the circumstances.
He then cites a selection of the scores of terrorism convictions over the last ten years, and presents examples of intelligence gained from law enforcement handling of terrorism cases. The latter is particularly interesting:
Here are some specific examples of intelligence obtained through the criminal justice system that have been provided by the FBI and career prosecutors in NSD’s Counterterrorism Section:
• A terrorism suspect arrested in 2002 provided the FBI with information regarding the role of Khalid Sheikh Mohammed (KSM) as the principal
architect of the 9/11 attacks, stated that KSM was continuing to plan terrorist plots against the United States, and provided the FBI with telephone numbers
and email addresses that he had used to contact KSM immediately prior to his arrest. The individual also told the FBI that KSM and Hambali were directing
his participation in a joint al Qaeda/Jemaah Islamiyah plot to bomb U.S. military targets and U.S. and Israeli Embassies in Singapore. Although the
plot had been disrupted prior to the individual’s arrest, he identified other participants and provided contact information for them. This was especially
significant because neither KSM nor Hambali had been captured at the time.
• A terrorism suspect arrested in 2003 explained to the FBI that he had traveled to Afghanistan in March 2002 to train at an al Qaeda camp that he referred to
as “the camp of Osama bin Laden.” He advised the FBI that in addition to basic training, specialized training was carried out at the camp, including the
use of anti-aircraft guns, explosives, suicide missions and poisons. He explained that other trainees in the camp were being taught how to attack
locations by using poison gas. He also explained that he had met with Abu Hafs, then al Qaeda’s military commander, who advised him of al Qaeda
tradecraft that could be used to avoid suspicion when he traveled back to North America. The FBI believed that this individual had been dispatched by al
Qaeda for an operation in the United States and that the operation was likely disrupted by his arrest and interviews.
• A terrorism suspect arrested in 2001 told the FBI that he met personally with Osama bin Laden at an al Qaeda poisons training facility near Kandahar,
Afghanistan. He provided important information about bin Laden, such as that, since the September 11, 2001 attacks, bin Laden and his cadre of
bodyguards moved every four hours to avoid capture, and a description of the vehicles used in bin Laden’s convoy. He also explained that according to other
al Qaeda members and training camp instructors, bin Laden had plans for additional attacks against the United States and had already dispatched
operatives to carry out future attacks. This individual described in detail the training he had received from al Qaeda, the facilitators who aided his entry into
training camps, and the camp instructors.
• A terrorism suspect provided information to the FBI on the potential hide-outs of Osama bin Laden in Afghanistan. He drew detailed maps of specific
locations which were provided to the DoD prior to the U.S. invasion of Afghanistan.
• A terrorism suspect told the FBI, in the course of multiple interviews in the spring of 2003 prior to his arrest, about al Qaeda operations, leaders, and plans
for attacks to be conducted in the United States. He provided detailed information and identified photos of Maqsood Khan, a high ranking al Qaeda
associate who was involved with KSM and at the time was at large in Pakistan and being sought by the United States, including detailed descriptions of
vehicles that Maqsood used to travel within Pakistan and his communication protocol and security measures. Using a map, he then identified the location of
an al Qaeda safehouse and camp located near Kandahar, where he had previously met with Osama bin Laden. He also identified a photo of KSM and
explained that he knew KSM by an alias, as a high ranking al Qaeda official whom he had met during his lunch with bin Laden; this was particularly
significant because KSM had been captured only weeks before in Pakistan. He described meetings with KSM in which he was tasked to perform surveillance
on specific targets in the United States, and noted that KSM was particularly interested in obtaining forged American drivers’ licenses and social security
cards for al Qaeda operatives so that they could enter the United States without suspicion. This individual also provided information to the FBI regarding
links between KSM, Maqsood and other individuals sympathetic to al Qaeda located in the United States, including his contacts with Majid Khan, a high
value detainee who had been arrested in Pakistan in the weeks prior to the individual’s interview with the FBI.
But the ultimate question is how law enforcement works relative to military detention and interrogation. For that, Kris lays out five strengths for each approach. Military trials have lower burden of proof thresholds, easier admissibility of confessions, the ability to close the courtroom to prevent release of classified evidence, the ability to use hearsay as evidence and greater flexibility to use secret evidence to make the case. Civilian trials deliver absolute certainty (where military trials are new and constantly challenged on appeal), can be applied to terrorists associated with any group, not just al Qaeda or the Taliban, provide greater opportunity to turn a suspect for the purposes of intelligence gathering, can guarantee a terrorist will be held for life as opposed to only the end of hostilities, and makes international cooperation on cases easier.
Each of these tools is valuable in its own right. Each has strengths and weaknesses, and whether it is legally appropriate and strategically wise to use any tool in a particular case depends on the circumstances of that case. The choice about which tool to use can be complex and fact-intensive, and should be informed by the judgment of national security professionals who understand the tools and their application in particular contexts.