Published for The Wall Street Journal, October 5th, 2011:

With interrogations and even Guantanamo detention ‘off the table,’ drone strikes are the default option in our war against al Qaeda.

The elimination of Anwar al-Awlaki last week was a splendid achievement. Awlaki was a terror guidance counselor whose ghastly roster of alumni included two of the 9/11 hijackers, Fort Hood shooter Nidal Hasan, would-be Christmas Day underwear bomber Umar Farouk Abdulmutallab, would-be Times Square bomber Faisal Shahzad, and participants in more than a half dozen other terrorist incidents.

An American citizen fluent in English, Awlaki was a formidable recruiter and tactician. The attack on him also killed another American, Samir Khan, who barely a week ago published the seventh edition of a slick al Qaeda magazine called Inspire. Among its articles: an exhortation of readers to imitate the exploits of Hasan, and detailed instructions in how to build bombs.

It may be that capturing Awlaki and Khan wasn’t feasible logistically. But what could we have done had we captured them? Were they subjected to the interrogations techniques renounced by the Obama administration with great fanfare, they could have provided a wealth of intelligence on potential attacks and attackers.

Khalid Sheikh Mohammed (KSM), the admitted mastermind of the 9/11 attacks, is probably the most famous but certainly not the only captured terrorist to have broken following experience with these harsh techniques. Indeed the mere availability of that program caused at least one captured al Qaeda operative to cooperate once he learned he was in CIA custody, even though he didn’t know precisely what the harsh techniques entailed

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Published for The Wall Street Journal, May 6th, 2011:

Former CIA Director Michael Hayden said that as late as 2006 fully half of the government’s knowledge about the structure and activities of al Qaeda came from harsh interrogations.

Osama bin Laden was killed by Americans, based on intelligence developed by Americans. That should bring great satisfaction to our citizens and elicit praise for our intelligence community. Seized along with bin Laden’s corpse was a trove of documents and electronic devices that should yield intelligence that could help us capture or kill other terrorists and further degrade the capabilities of those who remain at large.

But policies put in place by the very administration that presided over this splendid success promise fewer such successes in the future. Those policies make it unlikely that we’ll be able to get information from those whose identities are disclosed by the material seized from bin Laden. The administration also hounds our intelligence gatherers in ways that can only demoralize them.

Consider how the intelligence that led to bin Laden came to hand. It began with a disclosure from Khalid Sheikh Mohammed (KSM), who broke like a dam under the pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information—including eventually the nickname of a trusted courier of bin Laden.

That regimen of harsh interrogation was used on KSM after another detainee, Abu Zubaydeh, was subjected to the same techniques. When he broke, he said that he and other members of al Qaeda were obligated to resist only until they could no longer do so, at which point it became permissible for them to yield. “Do this for all the brothers,” he advised his interrogators.

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Published for The Enterprise Blog, January 21st, 2011:

In February 2008, while serving as attorney general, I visited Guantanamo. Before that visit, I found the clamor to close the facility puzzling; afterward, I found it incomprehensible. As a sitting judge, I had had occasion to visit prisons in the United States. Guantanamo compares favorably with medium security facilities run by the U.S. Bureau of Prisons. While there, I was able to see the high-value detainees, who are monitored on closed circuit television, other than Khalid Sheikh Mohammed, who was out of his cell visiting with a delegation from the International Committee of the Red Cross. I took the opportunity to visit his quarters, which included an adjacent exercise room equipped with an elliptical machine that was the same make and model as the one in the gym at the Lansburgh, where I was then living.

The medical care the detainees receive is better than the care their captors receive. There is a library with numerous works of Islamic interest available, as well as a large choice of DVDs, including many in Arabic. The most popular was “Walker, Texas Ranger.”

The only violence at Guantanamo is directed by the prisoners at the guards, who must wear plastic face shields when they approach or enter cells to protect themselves from the cocktails of urine, feces, and other bodily fluids that are regularly hurled at them.

I write this for two reasons. First, when I asked a guard whether there was anything I could do to improve the lot of those who serve at Guantanamo, he asked only that I tell what the place is really like, so I do that whenever the occasion presents itself. Second, I write it in the hope that someone can explain in coherent fashion what it is any rational person thinks we will gain by closing a facility that is remote, secure, and humane, and instead either release those who are held there, whose known recidivism rate exceeds 20 percent, or bring them to the United States where they will then use our courts as trampolines and become totemic figures within the prison system.

Again, I just don’t understand it.

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Published for The Wall Street Journal, September 8th, 2010:

The plan was disrupted because we were lucky enough to have the key witness in detention. It’s a shame we didn’t try to extract similar intelligence from Times Square bomber Faisal Shahzad.

The terrorism alert issued this week to Americans traveling abroad, and the events that generated it, have put in bold relief yet again dilemmas we face—some self-created—in our ongoing struggle with militant Islamists.

On the surface, the news certainly is not all bad. A German citizen of Afghan descent captured in Afghanistan disclosed a plot to American interrogators at the Bagram Air Field prison. The plan, Ahmed Sidiqi said, was to conduct coordinated attacks on tourists in European cities, and it involved other naturalized German citizens from Afghanistan. U.S. authorities issued a terrorism alert to travelers, and on Monday five of the conspirators, along with three Pakistanis and three others of undisclosed nationality, were killed in a drone strike in North Waziristan.

So far so good. One captured terrorist in military custody since July—at a location that prevents him, at least for the moment, from hauling his captors into a U.S. court—discloses valuable intelligence that appears to have headed off, at least for the moment, an atrocity.

Below the surface, the news is more troubling. Sidiqi and his associates are German citizens; that, and the arrest of a French citizen of Algerian origin as a suspected member of al Qaeda (plus 11 other arrests in southern France), make it plain that Islamist terrorists are succeeding in recruiting people whose passports give them free entry into all the countries of the European Union, and facilitate their travel in general. In 2009 and 2010 alone some 43 American citizens or residents of various backgrounds have been arrested here and abroad for terrorist-related activity, according to the Bipartisan Policy Center’s National Security Preparedness Group.

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Published for The Washington Post, July 20th, 2010:

There were fatal flaws in the recent suggestion that Congress should designate Guantanamo Bay part of an existing federal district court or as a separate federal district court so that those accused of the Sept. 11, 2001, attacks can be tried there ["Try them in federal court -- at Gitmo," Washington Forum, July 16].

Eugene R. Sullivan, a former chief judge for the U.S. Court of Appeals for the Armed Forces, and Louis J. Freeh, a former U.S. District Court judge and director of the FBI, argued that creating, by statute, a civilian district court trial at Guantanamo would provide a fair, independent and universally respected forum, in contrast to “untested and widely questioned” military commissions; deny to Khalid Sheik Mohammed and others a military forum that enhances their image as “warriors”; and avoid the “prohibitive” security costs of a trial elsewhere in the United States.

They are wrong on numerous levels.

First, the Sixth Amendment guarantees defendants a trial “before an impartial jury of the State and district wherein the crime shall have been committed.” Given the locations of the Sept. 11 crashes, this would require a jury drawn from the Southern District of New York, the Eastern District of Virginia, the Western District of Pennsylvania or the districts where the flights originated. Most if not all jurors have families, friends and co-workers who would know they were serving in a distant location. Their anonymity could not be preserved. Two “anonymous” jurors in the far less celebrated trial of the “Blind Sheikh,” Omar Abdel Rahman, were terrified to find reporters waiting at their homes after the verdict.

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As published for The Wall Street Journal on May 12th, 2010:

Some good news from the attempted car bombing in Times Square on May 1 is that—at the relatively small cost of disappointment to Broadway theater-goers—it teaches valuable lessons to help deal with Islamist terrorism. The bad news is that those lessons should already have been learned.

One such lesson has to do with intelligence gathering. Because our enemies in this struggle do not occupy a particular country or location, intelligence is our only tool for frustrating their plans and locating and targeting their leaders. But as was the case with Umar Faruk Abdulmutallab, who tried to detonate a bomb aboard an airplane over Detroit last Christmas Day, principal emphasis was placed on assuring that any statements Faisal Shahzad made could be used against him rather than simply designating him an unlawful enemy combatant and assuring that we obtained and exploited any information he had.

On Sunday, Attorney General Eric Holder said that in regard to terrorism investigations he supports “modifying” the Miranda law that requires law enforcement officials to inform suspects of their rights to silence and counsel. But his approach—extension of the “public safety exemption” to terror investigations—is both parsimonious and problematic. The public safety exemption allows a delay in Miranda warnings until an imminent threat to public safety—e.g., a loaded gun somewhere in a public place that might be found by a child—has been neutralized. In terror cases it is impossible to determine when all necessary intelligence, which in any event might not relate to an imminent threat, has been learned.

The lesson from our experience with Abdulmutallab, who stopped talking soon after he was advised of his rights and did not resume for weeks until his family could be flown here to persuade him to resume, should have been that intelligence gathering comes first. Yes, Shahzad, as we are told, continued to provide information even after he was advised of his rights, but that cooperation came in spite of and not because of his treatment as a conventional criminal defendant.

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As published for The Wall Street Journal on March 10th, 2010:

Over the past several years lots of boiling ink and flaming breath have been expended attacking lawyers who took legal positions or represented clients that were or became unpopular. The attorney who represented Bernard Madoff, for instance, was subjected to, among other threats and condemnations, messages expressing regret that his family had not been killed in the Holocaust.

More recently, we’ve witnessed a campaign to impose professional discipline on two former Justice Department lawyers, John Yoo and Jay Bybee, for legal positions they took as to whether interrogation techniques devised and proposed by others were lawful—a campaign that also featured casual denunciations of them as purveyors of torture.

Most recently, lawyers now employed at the Justice Department who, while in private practice, volunteered to represent suspected terrorist detainees, or argued legal positions supporting various rights of such detainees, have been portrayed as in-house counsel to al Qaeda.

This is all of a piece, and what it is a piece of is something both shoddy and dangerous. A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe. And a lawyer who undertakes to represent someone whom his neighbors—perhaps rightly—revile as a threat to the public welfare is obligated to bring his talents to bear just as forcefully in favor of that client as he would if he were representing Capt. Alfred Dreyfus, the French artillery officer who in 1895 was found guilty of treason and sent to Devil’s Island for little more than being Jewish.

Political disagreements with the Bush administration fueled and still fuel much of the intensity underlying attacks on Messrs. Yoo and Bybee. Similarly, I believe the results achieved by lawyers representing Guantanamo detainees have had a good deal to do with the criticism of them.

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As published for The Washington Post on February 12th, 2010:

It seems to me unlikely that Umar Farouk Abdulmutallab will be known to future generations of lawyers for generating any groundbreaking legal principle or issue. But when it comes to illuminating our public discourse about the “global war on terror,” he is right up there with Clarence Earl Gideon, Ernesto Miranda or even Jose Padilla. His case presents in one tidy package virtually all the issues that arise from the role intelligence plays in this struggle and compels us to examine what the law requires and what it doesn’t.

When Abdulmutallab tried to detonate a bomb concealed in his undershorts, he committed a crime; no doubt about that. He could not have acted alone; no doubt about that either. The bomb was not the sort of infernal device readily produced by someone of his background, and he quickly confirmed that he had been trained and sent by al-Qaeda in Yemen.

What to do and who should do it? It was entirely reasonable for the FBI to be contacted and for that agency to take him into custody. But contrary to what some in government have suggested, that Abdulmutallab was taken into custody by the FBI did not mean, legally or as a matter of policy, that he had to be treated as a criminal defendant at any point. Consider: In 1942, German saboteurs landed on Long Island and in Florida. That they were eventually captured by the FBI did not stop President Franklin Roosevelt from directing that they be treated as unlawful enemy combatants. They were ultimately tried before a military commission in Washington and executed. Their status had nothing to do with who held them, and their treatment was upheld in all respects by the Supreme Court.

If possible, FBI custody is even less relevant today in determining someone’s status. In 1942 the FBI was exclusively a crime-fighting organization. After Sept. 11, 2001, the agency’s mission was expanded beyond detection of crime and apprehension of criminals to include gathering intelligence, helping to prevent and combat threats to national security, and furthering U.S. foreign policy goals. Guidelines put in place in 2003 and revised in September 2008 “do not require that the FBI’s information gathering activities be differentially labeled as ‘criminal investigations,’ ‘national security investigations,’ or ‘foreign intelligence collections,’ or that the categories of FBI personnel who carry out investigations be segregated from each other based on the subject areas in which they operate. Rather, all of the FBI’s legal authorities are available for deployment in all cases to which they apply to protect the public from crimes and threats to the national security and to further the United States’ foreign intelligence objectives.”

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As published for The Wall Street Journal on January 7th, 2010:

The president’s job is not detecting bombs at the airport but neutralizing terrorists before they get there.

There was much to celebrate in the providential combination of an incompetent terrorist and surpassingly brave passengers and crew who saved 288 people aboard Northwest Airlines flight 253 on Christmas Day. There is a lot less to applaud in the official reaction.

Well-deserved mockery has already been heaped on the move-along-folks-nothing-to-see-here tone of the administration’s initial pronouncements—from Janet Napolitano’s “the system worked,” to President Obama’s statement that Umar Farouk Abdulmutallab was an “isolated extremist.” This week brought little improvement.

The president acknowledged that the plot had been hatched in Yemen, but not without adding the misleading statement that Yemen faces “crushing poverty and deadly insurgencies.” That Yemenis have to cope with “crushing poverty” is irrelevant here. Abdulmutallab is the son of a wealthy Nigerian banker. Other jihadists, including the physician who blew himself up and killed seven CIA agents in Afghanistan last week, and indeed the millionaire Osama bin Laden, prove that poverty does not beget terrorists. “Deadly insurgencies” is a half-truth, which omits the fact that the Yemeni government itself has supported al Qaeda and continues to harbor at least two people—Jamal Ahmed Mohammed Ali al-Badawi and Fahad Mohammed Ahmed al-Quso—involved in the bombing of the USS Cole.

Then, too, there was the unfortunate metaphor chosen by a senior intelligence adviser to account for why a conspiracy helped along by at least two Guantanamo alumni had not been discovered before Abdulmutallab boarded the plane. There was, he said, “no smoking gun”—a clue one would expect to find after disaster strikes, not before. There were, as it happens, many smokeless but redolent clues lying about before the plane took off. These included Abdulmutallab’s father’s warning to the State Department that his son was being radicalized and had gone to Yemen; the one-way ticket purchased for cash; no luggage; and intercepted communication referring to a plot involving “the Nigerian” in Yemen.

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As published for the Washington Post on November 6, 2009:

Ali Saleh Kahlah al-Marri, who by his own account came to this country most recently in 2001 to help organize a second wave of attacks after the Sept. 11 atrocities, received a jail sentence on Oct. 29 that could free him within six years. This again prompts the question of whether it is wise for the administration to cancel the military trials of those held at Guantanamo Bay and charged with planning the Sept. 11 attacks and, instead, to bring them to the United States to be charged anew and tried in civilian courts.

Marri acted on the direct order of Khalid Sheik Mohammed, the alleged mastermind of Sept. 11 among other accomplishments, to enter the United States not later than Sept. 10, 2001. He entered on a student visa and stayed in touch with his mentor, Mohammed, by cellphone and through coded messages sent via e-mail accounts in fictitious names. Marri used his computer to research the toxicity, availability and price of various cyanide compounds, as well as the location of dams, waterways and tunnels where such compounds could be used with lethal effect.

He was arrested initially in December 2001 for credit-card fraud and later charged with lying to federal agents about his travel and telephone calls. In 2003, President George W. Bush, relying on World War II-era Supreme Court authority, designated Marri an unlawful enemy combatant and ordered him detained in the naval brig at Charleston, S.C. Marri’s legal challenge to that detention was about to reach the Supreme Court when he was transferred in February to civilian custody and charged with providing material support for terrorist activities.

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