Justice and the Enemy is a thorough and organized masterpiece about the global war on terror. William Shawcross is very successful in laying out a dense amount of information in a succinct format. This work has the suspense and chronological timelines of Killing Kennedy by Bill O’Reilly. It has the intellectual makeup and refined arguments of The Federalist Papers. Finally, this work has the profoundness and painful truths also found in another book about the global war on terror’s relation to Islam titled, How to Win A Cosmic War by Dr. Reza Aslan.
This book presents a historical account of terrorism, while also presenting the competing philosophies of bringing terrorists to justice in the modern world. Shawcross seeks to examine competing solutions in bringing justice to an enemy that seeks the annihilation of the west. He also accurately examines the controversy in bringing terrorists to justice in a time of political correctness and legal perplexity. While the blame for rising tensions and hateful rhetoric towards the United States has often been attributed to American involvement in the Middle East, Shawcross accurately explains these tensions actually stems “from the struggle within the Muslim world for the soul of Islam.”
This book can be broken down into two major questions. First, should terrorists be tried in civilian courts or military courts? Second, should enhanced interrogation techniques be used in the global war on terror? The following analysis will discuss these two major points in further detail.
II. Should terrorists be tried in civilian courts or military courts?
“Military commissions have long been recognized as part of American and international legal practice. U.S. presidents have claimed the authority to conduct these commissions under Articles I and II of the U.S. Constitution. ” Shawcross explains that a further precedent for military trials is found in the case of Ex Parte Quirin. The Supreme Court held that a military tribunal had jurisdiction to try eight Nazi saboteurs that landed by U-boat on U.S. soil. The most important distinction made in this case is that between a lawful enemy combatant and an unlawful enemy combatant. Lawful enemy combatants are uniformed soldiers, while unlawful enemy combatants enter the country in civilian dress. The Supreme Court said that unlawful enemy combatants are subject to “trial and punishment by military tribunals.”
Furthermore, in Johnson v. Eisentrager, Shawcross quotes Justice Robert Jackson’s majority opinion in which he says “We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.” Shawcross says this opinion makes it clear that unlawful enemy combatants do not have the same rights as American citizens.
While the opinion in Ex Parte Quirin and Johnson has been the majority view for over five decades, the Obama administration has interpreted the decision in a different manner. Shawcross explains that in 2009, Attorney General Eric Holder invoked a protocol called the “Determination of Guantanamo Cases Referred for Prosecution.” This protocol says, “that where feasible, federal courts should be used unless other compelling factors suggested that prosecution in ‘a reformed military commission’ was more appropriate.” Shawcross bluntly says that if there is an attack on “U.S. soil and its victims were Americans, and particularly American civilians, then a civilian trial would be favored” based on this protocol. This decision was a tremendous departure from the ruling in Ex Parte Quirin and Johnson. One could almost call it a “lawfully” blind analysis because the protocol overlooks whether the combatant is lawful or unlawful. As a result, Attorney General Holder moved forward with prosecuting Khalid Sheik Mohammed on American soil after the protocol was invoked.
Shawcross counters the opposition to Military Tribunals by explaining, “Defendants in military tribunals have ultimate rights of appeal almost identical to those convicted in federal court.” This results from the safeguards that have been introduced since 2001. While concluding the discussion on tribunals, Shawcross bluntly states that it does not matter whether a Military Tribunal or Federal Court tries an Islamist because Islamists will denounce the decision. In fact, radical Muslims denounce all law except Sharia.
What may be even more interesting than the idea of the Islamic disregard of the American court system is Shawcross’s discussion of justiciability of whether or not an enemy combatant is tried before a military commission or a federal court. Shawcross reveals that Justice Jackson remarked, in Ex Parte Quirin, that there might not be justiciability of the military commission issue because it is a political question left for another branch of government. If a claim is not justiciable, then a federal court will likely not hear it. If this type of claim is not justiciable, it could have broad and sweeping ramifications on the trials of enemy combatants. This also means that the legislative branch and executive branch could be at liberty to try an enemy combatant any way they prefer. Whether this is good or not is left up for discussion.
III. Should enhanced interrogation techniques be employed in the global war on terror?
“Michael Ignatieff says “torture is probably the hardest case in the ethics of the lesser evil. A clear prohibition…erected in the name of human dignity comes up against a utilitarian case also grounded in a dignity claim, namely, the protection of human lives.” Shawcross is clear to point out that “enhanced interrogation” may save human lives, but the legality of this form of torture is left for debate. The first question that Shawcross answers is whether there are legal grounds to use enhanced interrogation.
In the Fourth Geneva Convention, which outlawed torture, common article 3 applies to “non-international armed conflicts, including civil wars, internal armed conflicts that spill into other states, or internal conflicts in which third states or a multinational force intervenes.” It could certainly be argued that terrorism is under the umbrella of the “internal conflicts” and “multinational force” provisions. After all, these terrorists start internal conflicts and come from different countries, but are all led by one philosophy, Radical Islam. However, the validity of this convention is in question, especially since it is questionable as to whether any captured American soldiers have been treated according to this protocol since 1950. Therefore, it may not even be germane to this debate.
The Authorization for the Military Use of Force of September 18, 2001, gave the “president the right to use ‘all necessary and appropriate force’ against those who organized the 9/11 attacks.” This authorization shows little regard for international agreements like common article 4. Shawcross says this is legal cover for the killing of supposed terrorists, but it also appears to be legal cover for enhanced interrogation techniques. He describes enhanced interrogation techniques employed in the global war on terror as being the following: sleep deprivation; walling; slapping; forced nudity; prolonged wall standing; and waterboarding. President Bush said these techniques were “designed to be safe, to comply with our laws, our Constitution, and our treaty obligations.” But not everyone agrees with this assessment.
Shawcross explains that President Obama has taken a different approach to enhanced interrogation. One of the first actions he took was shutting down the CIA’s use of enhanced interrogation and only permitting the use of interrogation in compliance with the Army Field Manual. Subsequently, Obama ordered the release of documents detailing the CIA’s interrogation methods. Shockingly, he refused to release documents, at Vice-President Cheney’s request, detailing the success of enhanced interrogation. Are enhanced interrogation techniques successful?
If these techniques are effective, it is absurd that President Obama would not want to release them. While it may not justify using these methods, some credit must be given if enhanced interrogation saves American lives. Shawcross makes a compelling case for why they have been effective. Discussing the capture of Osama bin Laden, he writes, “Important parts of the intelligence that eventually led to his hiding place in Abbottabad, Pakistan, had originally derived from enhanced interrogation of detainees including Khalid Sheikh Mohammed” Leon Panetta, the former Director of the CIA, said that some detainees provided “useful information” after being interrogated using enhanced techniques. However, he said it was debatable as to “whether those techniques were the ‘only timely and effective way’ to obtain such information.”
Shawcross says that Michael Hayden, former director of the CIA from 2006-2009, believed that there was no debating this question. Hayden stated that when first briefed on finding bin Laden, “a crucial component of the briefing was information provided by three CIA detainees, all of whom had been subjected to some form of enhanced interrogation.” Shawcross concludes that enhanced interrogation does save American lives. However, his quote of political scientist Michael Walzer does bring into the moral question of whether torture is the best way to save American lives. While writing about the “the politician who feels he has to make the decision to use torture to save lives” Walzer says, “His choices are hard and painful and he pays the price not only while making them but forever after.”
Mahatma Gandhi once said, “There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.” This statement sums up the question of whether more adequate justice exists in civilian courts or in military courts for enemy combatants. It also brings closure to whether enhanced interrogation techniques should be employed. Shawcross brings forward the evidence in a compelling and vivid way. He provides a format so readers can accurately answer the question of “Does my country’s conscience die when we allow our motives of revenge and retribution to bring justice rather than methods that promote respect for human dignity?”
Shawcross provides compelling evidence that trying unlawful enemy combatants in military tribunals is legal. His use of case law and federal law enforce the conclusion that military tribunals are legal and the most effective means for trying terrorists. Furthermore, he consistently clarifies that these tribunals do not infringe their rights because they can still appeal all the way to the United States Supreme Court.
Shawcross also effectively argues both sides of the enhanced interrogation issue. However, it appears his arguments weigh more heavily in favor of permitting enhanced interrogation because of the undeniable results these techniques provide. While President Obama and many others may be against enhanced interrogation, Shawcross makes the reader question whether Osama bin Laden would have ever been found without employing some variation of torture. He also compels the reader to question whether there will be an increase in terrorist attacks if enhanced interrogation tactics are not used. Despite the shocking of the normal human conscience enhanced interrogation tactics cause, their results may be enough to justify their use
 Shawcross, William. Justice and the Enemy. Page 5 of Hardcopy.
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