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EARLY ONE AFTERNOON in the mid- 1990s, a then-colleague of mine, Judge John Sprizzo of the U.S. District Court for the Southern District of New York, and I were returning from lunch, and as we walked up Pearl Street in lower Manhattan, he surveyed the scene - a dump truck blocking vehicular access to the street; concrete barriers in front of the courthouse; deputy U.S. marshals brought in from other districts around the country, clad in black SWAT uniforms and bulletproof vests, carrying firearms of a sort more associated with the battlefield than the cityscape. Sprizzo shook his head: “What the hell are we doing here? This is a military problem, not a legal problem.” That casual comment has seemed, at least in retrospect, like lightning in the middle of the night, suddenly and starkly illuminating the landscape before darkness envelops it again. Of course, even the darkest night gives way to dawn, and it should by now be clear to all but the most obtuse that terrorism is substantially a military problem, and military means and measures, even military tribunals, are the appropriate way to deal with some or all of it.
It should by now be clear to all but the most obtuse that terrorism is substantially a military problem, and military means and measures, even military tribunals, are the appropriate way to deal with some or all of it.
The scene Judge Sprizzo was looking at and reacting to had been precipitated by the February 1993 bombing of the World Trade Center that killed six people; injured more than a thousand and caused tens of millions of dollars in damage; and led to the trial of four of the perpetrators. Among the plotters’ announced goals was securing freedom for El Sayyid Nosair, who had been convicted in the state courts of New York in connection with the November 1990 murder of Meir Kahane, a right-wing Israeli politician shot by Nosair just after delivering a speech in a midtown New York hotel. Oddly, the prosecutors had presented so many overlapping witnesses with contradictory accounts of the shooting that Nosair was actually acquitted of the murder but convicted of using the weapon involved. At the time he committed his crime, Nosair had been dismissed as a lone misfit. The contents of his apartment, including jihadist literature and writings containing fantasies about attacking the United States by toppling tall buildings, had sat largely unexamined in a warehouse until after the 1993 bombing. Indeed, an amateur video of Kahane’s November 1990 speech, examined in 1993, would show that present in the hall, in addition to Nosair, was Mohammed Salameh, who would later participate in the 1993 bombing to help free Nosair. Other evidence would show that Nosair was supposed to have made his escape by getting into a cab driven by Mahmud Abouhalima, another 1993 bomber, and was captured when he jumped into the wrong cab and eventually had to flee on foot.
There would be later plots, successful and unsuccessful. A partial list includes the plot in December 1994 and January 1995 to blow up airliners over the Pacific, which actually resulted in one bombing in December 1994 that killed a Japanese engineer on a flight from the Philippines to Tokyo. In addition, there were the 1998 car bombings, moments apart, at the U.S. Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, that killed 224 people and wounded thousands, and the millennium plots that included a plan to blow up Los Angeles International Airport, foiled when Ahmed Ressam, betrayed by his nervous demeanor, was captured aboard a Seattle ferry with a bottle of explosives in the trunk of his car. An attempt to blow up the destroyer USS The Sullivans in Aden, Yemen, failed when the would-be suicide bombers overloaded their skiff with explosives and it sank. The follow-up of that attack, in October 2000, was the bombing of the USS Cole in Aden, Yemen, which killed 17 sailors.
And there would be other trials, including the trial of Ramzi Yousef, mastermind of the 1993 World Trade Center bombing and architect of the Pacific airliner bombings. There was also the trial of Omar Abdel Rahman, the so-called “blind sheikh,” and several codefendants, including Nosair, for a wide-ranging terrorist plot that encompassed the Kahane murder in 1990; the 1993 World Trade Center bombing; and a plan to blow up various critical sites in New York City, including the Lincoln and Holland tunnels, FBI headquarters in Manhattan, and the United Nations. Finally, there was the prosecution of millennium bomber Ahmed Ressam.
The 1993 World Trade Center bombing was described at the time as a wake-up call to this country to take notice that it was dealing with something broader than random criminal acts. That something was Islamic violence to which this country was no longer immune. Unfortunately, our response to each subsequent act was framed in the argot of conventional criminal prosecution: a stern declaration that we would “bring to justice” those responsible. The ongoing assumption was that “justice” meant a trial in a federal court, with attendant discovery for the defendants and their supporters outside the courtroom of not only the evidence the government would introduce to convict them but also of some of the means and methods used to gather that evidence. This presented a trove of intelligence for those on the outside. For example, when the government followed the standard practice in conspiracy cases of disclosing to the defense the unindicted conspirators in the prosecution of Omar Abdel Rahman, the “blind sheikh,” the list included Osama bin Laden; it was learned years later that that list found its way within weeks to bin Laden in Khartoum, Sudan.
Perhaps not unnoticed during all of this, but certainly not taken at face value, was the declaration by Osama bin Laden, first published in a London newspaper in August 1996 and reissued in 1998, that included a call to “every Muslim who believes in God and wishes to be rewarded to comply with God’s order to kill the Americans and plunder their money wherever and whenever they find it.”
After September 11, 2001, the Bush administration made it clear that conventional criminal investigation and prosecution would no longer set the limit of the government’s response. Although few had taken bin Laden seriously when he issued his call in 1998, September 11 seemed to mark a turning point. To “bring them to justice” was added “bring justice to them.” Relying on the Authorization for Use of Military Force issued by Congress in the days following the terrorist attacks, the administration went to war. That disconcerted many, not only those on the left, who may be expected to cringe at any assertion of executive power, particularly by a Republican administration, but even those actually engaged in the business at hand. Thus, for example, Islamic fundamentalism was not identified as the source of the problem. Indeed, even as he mobilized the nation in an address to Congress, President Bush assured us that Islam is a religion of peace and said that it had essentially been kidnapped by a band of extremists. To savor how far political correctness has carried us, and in what direction, imagine President Roosevelt telling Congress on December 8, 1941, that the peaceful Shinto religion had been kidnapped by a cabal of militarists. The Bush administration presented the war as “a war on terrorism.” Anyone with a pulse knew who was supposed to be in the crosshairs. But “global war on terrorism” did not invite precise analysis of either the nature of the threat or who presented it. On the contrary, it gave an opening to those who opposed the whole enterprise. Some carped at imagined hypocrisy because the effort was directed only at Muslims and not at the IRA, Basque separatists, Peru’s Shining Path guerrillas, etc. Others claimed derisively that it was at least misleading to speak of a war against a tactic rather than those employing it or their goal.
Like many disputes that engage the attention of lawyers (and the controversy over our response to terrorism has engaged lawyers to a degree never before seen in our history), this dispute turned as much heated attention on the label as on what was inside the package. The choice of label, it appeared, would determine the outcome of the debate. This was particularly so in a conflict in which the adversary did not follow the rules of war and should not have been able to invoke the protections of those rules. If the struggle legitimately could be called a war, then all the