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May 15, 2008

Exclusive: The Dilemma of the Civilized: From '60s Radicalism to Islamic Jihad

Jeff Breinholt

Andrew McCarthy is a friend and former colleague. He's also a convenient guy for me to have around - someone whose career was similar to mine and who, now out of government and making a living as a public commentator, can be counted on to take an argument further than I would. That means whenever I worry about having been overly bellicose in my writings about government incompetence or the evil aspirations of Muslims (as sometimes happens), McCarthy has probably already beaten me to the punch, and gone even further.

McCarthy's book, Willful Blindness: Memoirs of the Jihad (Encounter 2008) follows this pattern. It is his story of prosecuting Sheik Omar Abdul Rahman, and includes quite a bit of geopolitical analysis that formed the background of the case. How willing is McCarthy to damn the consequences in the current climate and state what's on his mind? Consider the final paragraph of his book (which approximates my current sentiments):

"Islam is like fire. For the majority of Muslims who would reject, reform or tacitly ignore its combustible elements, it is a force of good: a source of comfort, a guide to dignity and the life honorably lived. But for countless others - not a fringe, but tens of millions over who the majority is bereft of influence - it is a conflagration waiting to happen. We are the realm it would engulf. And there is always a Blind Sheikh ready to light to fuse. We can open our eyes and see it. Or not."

In the choice among which options in our multi-tool arsenal we should exercise against radical Jihadists, McCarthy does not need any more fact-specific details. He believes we are doomed unless we fight the urge to treat al Qaeda and its adherents as anything short of a military problem. Fire the lawyers like him. Bring in the Marines. As he describes it:

"It is a thrill and a source of patriotic pride to observe the world's greatest legal system grant full flower to due process to our committed enemies and see them, nonetheless, brought to heel. It is, further, a counterintuitive absurdity to observe the world's greatest legal system grant full flower of due process to our committed enemies, with the result that we can neutralize only minute percentages of them while surrendering boatloads of intelligence to make the result of them more efficient at killing us."

"A counterterrorism strategy that places too much reliance on [terrorism prosecutions] thus has numerous harmful consequences. It shifts national-security (as opposed to police) functions from the ambit in which executive discretion to respond to threats is necessarily broad to the ambit in which executive action is heavily regulated and the federal courts, by performing their ordinary functions, actually empower our enemies."

What is striking about Willful Blindness is that someone who cut his teeth in the national security world as a prosecutor can be so dismissive about the value of law enforcement in fighting terrorism. This is not a criticism, since McCarthy is an effective advocate, and writes with aplomb. His descriptions are self-effacing, as if to remind us that he knows he was part of the problem and has made the necessary corrections. He does not pull any punches on the dangers of an over-lawyered society.

When the World Trade Center was first attacked in 1993, McCarthy claims the government missed the boat when it chose to treat the culprits as criminals, even though he had a starring role in the resulting stage production. He mocks the FBI supervisor who, commenting on the Bureau's ham-handed treatment of an informant who quit in disgust rather than continue to insinuate himself further into the conspiracy, remarks "Imagine the liability." In McCarthy's telling, "The thud I was sure I heard had to be the sound of my jaw striking the war room floor." We had been attacked my foreign militants, and the FBI boss feared risk ambulance chasers, insisting that the FBI limit what taskings the informant could accept from the terrorists. In the Bureau's world, the goal was to avoid accountable error, be being intentionally ignorant, lest it have too much information to establish plausible deniability when bad things happen that might have been indicated by the information."

The value of lawyers and the criminal justice system in counterterrorism is one of these things about which McCarthy and I will have to agree to disagree. I'm a believer, in part because there seems no other viable option in certain circumstances. I cannot fathom any other way we can handle American citizens, plotting to commit terrorist attacks on American soil. That is a specific challenge that cries out for American lawyers. Even if these subjects are part of an al Qaeda conspiracy, we cannot execute them on the streets or handle them with military tools, via military tribunals or otherwise. Jose Padilla, unfortunately, taught us that. Padilla got what he deserved and was convicted, but this required an American courtroom, prosecutors, a jury, and a judge. There is also the fact that, for better or worse, we live in a multilateral world, which is based on the rule of law. We are likely to get greater UN responsiveness when we talk about terrorism prosecutions rather than military operations. This makes lawyers like us a necessary evil

This hardly makes me soft, or shy about mocking fellow attorneys who advance frivolous arguments in an attempt to frustrate otherwise lawful American military operations. After all, I occasionally get hate mail from the human rights epicenters of Scandinavia and New York, whenever I suggest that they are making it hard for us to exploit legal tools against terrorists. I believe these lawyers deserve more public ridicule, rather than less. It would be truly anomalous, for example, if they succeeded in establishing that the U.S. could not, without a warrant, search a building located overseas, whereas the Air Force could that same building without any judicial oversight. My bet is that the lawyers who achieved this principle would have no trouble taking the next step and suggesting that the American military must obtain prior judicial approval for the bombing. This absurd notion that would get us laughed out of NATO.

Maybe we are thinking too much, and the answer is as obvious as Andrew McCarthy suggests. After all, during World War II, the FBI captured several German saboteurs, ran them through a summary legal process, and promptly executed them. Modern historians have not focused on the fact that one of these prisoners was - horrors! - an American. Still, the sun came up the next day.

Nevertheless, I doubt that we are willing to accept Americans being picked off the streets and given to military justice, let alone American soldiers mobilized in our cities and being involved in the arrests. Faced with this reality, the American criminal justice system is the only option for certain national security challenges, as much as people like Andrew McCarthy may hate it.

It is hardly an ideal situation. It is true that the justice system has been stretched to the limit. McCarthy saw that first-hand in the Sheik Rahman case. A few years later, getting Zacarias Moussaoui before an American jury for the 9/11 plot required a fairly clumsy process, and two trips to the Fourth Circuit Court of Appeals Discovery rules means that the government is often faced with the Hobson's Choice of disclosing an unpalatable amount of intelligence and dropping the case, where the middle ground may be to cut the evidence down so much that the case is hard to win. This problem has been remedied somewhat by the Classified Information Procedures Act (CIPA), which resulted in the happy ending in Moussaoui. Additional reforms are undoubtedly necessary.

Some, like Max Boot and Jack Goldsmith, have called for special national security courts to handle terrorism prosecutions. This idea would be an improvement, but only if the rules of evidence and discovery were drastically changed. Some of these rules, however - the right to a jury trial, the right of the accused to confront his accusers - are constitutional in nature. This means that creating special court that is truly effective would require a constitutional amendment. Given how hard it has become to get political agreement with Congress on foreign surveillance authority, how likely is that? To achieve a durable legal process to handle the modern terrorism challenge, we are going to need to weigh the relative value of treating terrorists as a law enforcement matter against the value of procedural protections that are now part of our national fabric, and cough up something in the process. No one said this would be easy

Perhaps it is not as hard as we think. Maybe the answer is staring us in the face, and we already have experience attacking the problem of American-based Jihadists. Maybe it could be done without the courts. Maybe it is time to bring back the devious FBI, and to reconsider the "abuses" of COINTELPRO, to determine whether they were worth the cost in a new era.

The question suggested itself to me recently as I read the 1970s classic Who Killed George Jackson? by the late Jo Durden-Smith. Black Panther leader George Jackson was killed in an attempted escape from California's San Quentin Prison in 1971. Think Jackson was not involved in terrorism? An earlier escape attempt, orchestrated by his brother, resulted in a shoot-out and the death of a judge. No matter how you cut it, when judges are taken hostage and killed, that's terrorism.

Jackson was a hero to the 1960s Left, based on his memoirs Soledad Brother, which spawned a prison reform movement premised on the notion that (surprise, surprise) people incarcerated in American prisons are not having much fun. Durden-Smith set out to solve the mystery of whether Jackson had been set up by a fearful, racist government, which wished him dead because of his ideas and growing political influence. He spoke to people who offered a variety of conflicting facts, to the point where he did not know what to think. The final part of the book is a shocker, and directly applies to our current question of how to combat political violence.

Of course, we know that the Black Panthers died out in the 1970s. Their supporters claimed that is was due to unfair tactics by the FBI and California law enforcement, which introduced agents provocateurs into their midst to spread false rumors, and happily watched while the competing factions killed each other. It was the internal dissension, rather than the handful of criminal prosecutions, that ruined the Panthers.

How did the threat of the Black Panthers compare to what we face today from al Qaeda? It is not a far-fetched analogy. J. Edgar Hoover labeled the Panthers part of the largest national security threat of the time. They were never able to pull off anything as spectacular as 9/11, though they did talk about revolution and "offing pigs" (killing cops), and they purported to be part of an international Marxist movement. Huey Newton acknowledged that revolution required the threat of violence. Like McCarthy's defendants, the Panthers organized military training in remote locations, to prepare themselves for terrorist attacks. They had political wings and military wings, and raised money under a charitable cover - including grants from the government - that was skimmed off for terrorism preparation. In many ways, they were the sixties version of the Jihadists today.

One of the problems with the comparison was that the Black Panthers consisted of homegrown Americans, who were not subject to deportation or expedient surveillance methods whose authority today depends on a foreign nexus. However, that might actually help in answering the question of how we deal with that portion of the terrorist problem not redressable by McCarthy's beloved military: American or U.S.-based Muslims who are politically-inspired to kill people within the U.S. The template used successfully against the Panthers may be the solution, if we can stomach the prospect that it might be necessary.

The problem is that, even now, there is widespread belief that the law enforcement tactics used against the Panthers were abusive. In the 1970s, we went through a mass self-flagellation about the U.S. intelligence community. The scandals of Watergate were followed shortly by Congressional investigations of CIA abuses. The FBI's Vietnam Era's operations against the Left, which went by the name COINTELPRO, made many American uneasy. There has not been much of a counter-narrative since then.

Durden-Smith deals with these law enforcement tactics used against the Panthers. He describes how Congress, for example, heard from a witness named Tom Mosher, who the FBI had inserted into the Radical Left to prevent terrorism. Mosher described the murder of Fred Bennett by some black radicals associated with Jackson, seemingly with the approval of American law enforcement, who stood by and let it happen. The tactics by the FBI included falsely labeling certain subjects as snitches ("badjacketing"), which increased paranoia that was already present in Leftist circles. The tactics worked, and they began to take their toll. The Panthers became divided between Huey Newton and the most militant faction led by Eldridge Cleaver, then in exile in Algeria. It was just a matter of time before they started killing each other.

The final chapter of Who Killed George Jackson? is a tour de force. Durden-Smith leaves the Bay Area out of fear for his life, because his efforts have angered too many radicals and government people. He starts to question the Leftist line of Jackson's victimhood after he is nearly killed by some black kids in Oakland himself, and he starts to wonder whether Jackson's murder of an apolitical prison guard was any more "political" than his own death would be at the hands of the political street thugs. Paranoia had infected the California Left, and Durden-Smith had adopted its imaginary complications. He had entered into a world where fantasy and fact were equivalent. His observations are very familiar to those who are now faced with the mystery of the American-Muslim community, and academic discussions about Jihad and Islamaphobia:

"Each of these groups and individuals structured the world they saw in terms of its "facts"; each produced a different world-picture based on those "facts. And none of them recognized their "fact"-talk for what it was, a distortion of what was really there, a way of covering up the mess of mixed motives and mistaken beliefs at the root of action ... in other words, all groups projected into the idea their own nightmares (for the police, police nightmares, for the politicians, politician nightmares) and they ignored the fact that the Panthers were as heterogeneous and as lacked disciplined as any other political group."

The whole idea Durden-Smith had of George Jackson's death as a piece of history had disappeared. He was exploring not truth, but a contest of lies. He leaves town, fleeing to New York, where he immediately realizes how things change so quickly in the five weeks he had been absorbed in the Jackson mystery. The radical ‘60s had given way to the self-absorbed ‘70s, judging my how his acquaintances talk.

"New York, by now, brooded with sex, and it had become the reference point of all talk, as the revolution had been two or three years before. The women's movement too was growing in strength, with curious effects. Fraught, eggshell dramas were being enacted in every bedroom and living room. And an aggressive, transvestite chic was beginning to fill the gap in taste left by the failure of the sixties' modes. Sex had become a vehicle for self-expression that politics had been....Instead, people had begun to experience themselves, rather than society in which they found themselves, as a problem in need of a solution. Their horizons had shrunk, and their confidence had gone. And so the language they used to talk about themselves and their place in the world was either aesthetic or else psychoanalytic, the language of one continuously monitoring his own state of mind."

This was a revelation. Durden-Smith knew that the remaining segments of the ‘60s left would eventually drop out, after reaching a moment when they could not endure their alienation any longer. Only when they saw that the Left had been emptied of everyone except the members of a misguided prison movement and the last of the terrorist groups, would they be able to realize their mistake and pick up the pieces of their lives again. The "Me Decade" had started. Disco was just around the corner.

Maybe there is hope against the Jihad after all. I, for one, would accept a revival of disco and would even invest in a new wardrobe, if it meant that radical Islam was no longer a threat.

Compared to our current challenge, the ‘60s radicals had far more domestic popular support than the Jihadists do today, even if we credit the worst about the so-called moderate American Muslims who may secretly cheer for the Muslim Brotherhood to amass greater political power. This might makes criminal prosecutions unnecessary. Perhaps Andrew McCarthy is right that we should keep it a military matter and nothing more. Maybe our ultimate victory over the current brand of terrorism will look very much like what Durden-Smith noticed about the shift in his New York friends' language in the short period he was in California investigating the Jackson's death.

There's only one small problem with this scenario: how do we know that the inability of the ‘60s radicals to foster a violent revolution - if Durden Smith is right, because level-headed people eventually got disgusted with them - was not due to American law enforcement's aggressive tactics, which we later decried as abhorrent? How much of the level-headed disgust might be attributable to the fact that we were forced to handle the domestic terrorist threat of the ‘60s as a law enforcement matter, and cops thus became more aggressive and extremely devious, to the point where they have to suffer through reforms in later years? It may have been due to dirty FBI and California police tactics that impacted public awareness - a smattering of criminal prosecutions - to the Panther's detriment.

Amazingly, Who Killed George Jackson? contains a description of the law enforcement approach to the Black Panthers that could have been written after 9/11 (complete with the civil libertarian concerns that have been articulated recently):

"The preemption power is a very dangerous one. For the only way to reach into the inner counsels of those discussing an illegal act is to infiltrate their group with agents and informers. And such men are difficult to control, especially in the political field. To maintain their cover, for example, they are often given, as a class, to holding a more radical position than the people on whom they are spying. They tend to shift the dynamic of the group toward action and way from discussion. Often they create the crimes for which the police later arrest and indict the group."

Unfortunately, this possibility - that COINTELPRO conquered domestic terrorism - has never been properly considered, in part because of the reformist soul-searching that accompanied the scandals of the ‘70s has really never been questioned. Watergate made it impossible for us to give any credit to the law and order ethos of the Nixon Administration, and there are still people who think the FBI were the villains in the Black Panthers' saga, because they engaged in practices that have since been stamped out by mass reform. Doubt that? Check out what people like Angela Davis and Erika Huggins are saying, when they speak to standing-room audiences on American college campuses today. To them, the Panthers were the saviors. Cops were the villains.

The choice might come down to this: we can either amend our Constitution to limit protections afforded to terrorists so we can adequate prosecute them without suffering too much unpalatable disclosure of intelligence, or we can go back to the days when devious law enforcement tactics made prosecutions an afterthought. If the latter, perhaps we want a lethally sneaky FBI, and we should permit its agents to take off its gloves domestically and do things that are pernicious but which allowed them to defeat the Black Panthers - extra-judicial active measures, like rumor-spreading and infiltration to foster paranoia. Do we? Is our disapproval for these tactics worth constitutional amendments to create special courts to handle terrorists? The choice is yours. It is one of the dilemmas we face, because we are so civilized.

The views in this article are not those of the Department of Justice.

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