Dark Matters

America’s terror courts will continue to exist because they spare U.S. officials from public accountability.

It’s a pity that Kathryn Bigelow, the director of the acclaimed war-on-terror thriller Zero Dark Thirty, didn’t have the opportunity to read Jess Bravin’s meticulously reported account of America’s trial practices for post-September 11 terror suspects, The Terror Courts. If she had, she might have grasped how self-defeating the Bush Administration’s embrace of torture has turned out to be and depicted it as an egregious mistake rather than a necessary evil. Bravin, The Wall Street Journal’s Supreme Court correspondent, broke several of the earliest and most important stories about the Bush Administration’s brutal interrogation and detention program. Here he details how the case of one 9/11 defendant after the next was legally and ethically poisoned by the sadism, amateurism, and zealotry of their questioners. The interrogators and the bureaucrats who authorized their brutality posed as Hollywood tough guys, like those lionized in Bigelow’s film. In fact, as Bravin tells it, by resorting to criminal misconduct they unwittingly weakened America’s efforts to win the war on terror in countless ways for which the country is still paying.

The history of the Guantánamo military commissions, which Bravin has covered since 2001, isn’t an easy one for a writer to tell or a reader to follow. The record is so cluttered with false starts, unexpected turns, multiple detainees with impossible-to-remember names, and complicated legal twists, it might verge on incoherence in the hands of a less dogged narrator. But Bravin brings cohesion and drama to the story, which is a genuine public service. He does this by focusing on the struggle of a wonderful protagonist, military prosecutor and Marine Corps Lieutenant Colonel Stuart Couch, whose moral clarity and professional ethics are repeatedly assaulted by the unconstitutional process in which he finds himself participating. We see much of the story through Couch’s eyes, and as a result, the drama is personal, even emotional.

Couch, a Republican and a devout Christian, had become a JAG in the Marine Corps in 1996, but left in 1999 for private practice and later a stint as assistant district attorney in Beaufort, North Carolina. In August 2001, he returned to the Marines for a temporary assignment. Then 9/11 happened, during which Couch lost a friend, and he re-enlisted permanently with the hope of bringing the perpetrators to justice.

But the system Couch returned to was vastly different from the one he knew. Bravin explains that the small cadre of Bush Administration officials who designed the legal process for Al Qaeda suspects and other detainees were ideological radicals intent upon proving that, as commander in chief, President Bush had absolute executive authority to disregard international law and other legal norms in accordance with the executive branch’s interpretation of “military necessity.” Under this “new paradigm,” suspects would have virtually no legal rights. Instead, as stated in the draft copy for the new military commission system these officials were designing, it was “not practicable” for military commissions to follow “the principles of law and the rules of evidence” that defined American justice. Instead of customary notions of due process, detainees would have no presumption of innocence, no right to proof beyond reasonable doubt, no right to confront or cross-examine their accusers—whose hearsay testimony could be admitted against them—and no right to remain silent. Their own statements, coerced under torture, could be used against them too. The only standard was that evidence must have some “probative value.” Further, members of the military commission that would decide their fate—men and women who would serve as judge and jury—need not be lawyers. “The Bush Administration envisioned creating for the first time a permanent legal structure under the president’s sole command,” Bravin writes.

In creating this radical legal regime, the Bush lawyers—most notoriously John Yoo and David Addington—had purposefully excluded the top military experts, who, upon seeing the details, were flabbergasted. The rules for the new military commissions ran roughshod over the Uniform Code of Military Justice. “We looked at each other in disbelief,” Bravin quotes Major General Thomas Fiscus, the Judge Advocate for the Air Force. Before long, legal scholars such as Laurence Tribe and Neal Katyal criticized the proposed military commissions too, launching the first round in what would become a protracted battle over the constitutionality of Bush’s extralegal experiment.

John Yoo had once described the naval station in Guantánamo Bay, Cuba as the “legal equivalent of outer space.” Bravin depicts Couch’s arrival in this new cosmos as a rude shock. Couch almost instantly notices prisoners being abused, not randomly, but rather as part of a program that, as he recognizes from his own military resistance training, is modeled on some of the world’s worst and most illegal torture methods. Before long, he begins to piece together the secret program that, as he discovers, will ironically undermine his ability to try and convict all but the most low-level detainees.

Couch wanted to prosecute major terrorists, and aimed at first to go after the detainee he concluded had “the most blood on his hands,” a Mauritanian named Mohamadou Ould Slahi. But under U.S. law, Couch knew, prosecutors are barred from introducing evidence produced in ways that “shock the conscience,” in Felix Frankfurter’s phrase. No one would tell Couch exactly what happened to Slahi, so he and an ally conducted an intelligence operation against their own colleagues in order to piece together what the detainee had been subjected to.

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