CAFE Insider Newsletter #39: Evil & Cowardice, but also Good & Courage

CAFE Insider Newsletter #39: Evil & Cowardice, but also Good & Courage

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Dear Reader,

It was the worst of times. September 11, 2001. Today is the 18th anniversary of that mind-numbing day, and as usual, words seem to fail; they fail to convey properly the hurt and the heroism, the shock and the anger. It is also hard to convey, in words, the resolve in America in those trying days.

Every year you’re overwhelmed by the remembrance. Every year you are sad. Some anniversaries seem especially poignant. This is one of those. Eighteen is significant. As I note in tomorrow’s Stay Tuned podcast, babies born that day become adults on this anniversary. Children of lost firefighters are themselves being sworn in as New York’s bravest on this anniversary. These infants have no personal memory of the day, but live with the loss and are America’s hope for the future.

The tenth anniversary was a tough one too. I remember that the lead-up in 2011 felt particularly sad and heavy, to me at least. On that date, the long-awaited 9/11 Memorial opened. Cabinet officials were in attendance. Both New York Senators came. President Obama spoke. I was fortunate enough to be there too.

But other than the public officials, on that first day the only other people permitted inside the gate were the families of 9/11 victims. This was a day just for them, to come and pay tribute, to honor the dead, to see the names of their loved ones etched in bronze. This is what I remember the most: realizing that every person I saw that afternoon, whether they appeared sad or stoic, had suffered unspeakable personal loss ten years before. It was overwhelming just to be amongst them.

At SDNY, we held a quiet commemoration in the Court of International Trade across the street from our Manhattan office, not far from the memorial. I invited Mary Jo White and a few others to speak. Mary Jo was the U.S. Attorney who hired me and was in office on that terrible day in 2001.

I concluded the ceremony with short remarks. For what it’s worth (and with apologies for what in hindsight appears to be an obvious Ted Sorensen influence), this is what I said:

I respectfully submit that the lessons of 9/11 boil down to a few simple and timeless truths:

  • There is evil in the world, but there is also good.

  • There is cowardice in the world, but also courage.

  • There is terrible tragedy, but also hope.

Sometimes a world-altering tragedy is thrust upon us – epic in scale and suffering and made more shocking because it is wrought not by nature but by wicked men.

That is when good people announce themselves with great force and in great number.

That is when good people – even knowing they can never fully console the grieving or calculate the loss or even comprehend the act – dedicate themselves simply and tirelessly to healing the harmed, fighting for justice, and rebuilding their city.

That is when good people make a commitment – lasting not merely for a moment or a day or a year – but for as long as they have breath to dismiss the differences among them and awaken to what is important.

It is a commitment to living life in the service not just of oneself, but also for the benefit of other people.

It is a commitment to carry whatever load one’s limbs can bear and make whatever sacrifice one’s spirit can tolerate to, in the words of Aeschylus, “tame the savageness of man and make gentle the life of this world.”

There were many, many heroes on 9/11 and after.  We have been reminded of some of their stories this week.

But whoever makes that commitment, whoever holds to that pledge – even if you never had the chance to be one of the heroes who pulled a victim from the burning towers or rescued a fellow soldier on the field of battle. . . or saved countless countrymen by choosing to crash your own plane in a field in Pennsylvania – whoever makes that commitment to service makes a contribution to the ultimate cause of peace and justice.

Because through each of those private pledges to do one’s part to ease some suffering and to at least respect – if not love – your fellow human beings, interwoven between millions of other like pledges, made by people of every color, class, and faith, is stitched the fabric of a heroic nation.

That is the simple creed of good and justice-loving people everywhere.

And it is the defining creed of the men and women of SDNY.

My best,

Preet

STAY TUNED LIVE TOUR

Stay Tuned is going on the road! Don’t miss Preet as he hits the road for a night of fun and engaging conversation in the following cities:

Denver | October 24, 2019
Shannon Watts, gun reform activist and founder of Moms Demand Action

Minneapolis | November 5, 2019
Jacob FreyMinneapolis Mayor and civil rights attorney

Detroit | November 12, 2019
Dana Nessel, Michigan’s 54th Attorney General and long-time advocate of LGBTQ rights

Atlanta | December 4, 2019
Sally Yates, a veteran of the Justice Department who served as the Acting Attorney General, Deputy Attorney General, and U.S. Attorney for the Northern District of Georgia

THE TRIALS & TRIBULATIONS OF 9/11 PROSECUTIONS

The vast legal complex currently under construction on the US Guantanamo Naval Base in Cuba is pictured 08 November 2007. Baptized “Camp Justice”, the site will accommodate the large number of clerks, military police, lawyers, journalists, witnesses, and observers for pending lawsuits. AFP PHOTO/Fanny CARRIER (Photo credit should read Fanny Carrier/AFP/Getty Images)

Today marks the 18th anniversary of the 9/11 terrorist attacks. Only last month did the Office of Military Commissions announce that the trial of notorious al Qaeda leader Khalid Sheikh Mohammed (KSM) and four other men accused of plotting the attacks would begin on January 11, 2021, at the U.S. Naval facility in Guantanamo Bay, Cuba. The nearly two-decade delay is due to the complicated nature of the case which has involved dozens of pretrial hearings and continues to present thorny questions of law and facts.

In November 2001, President George W. Bush, acting on a joint congressional resolution, issued an order governing the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” The trials, the order stated, would be administered by a military commission. The accused, subject to the order, were suspected members of al Qaida or other non-U.S. citizens who “engaged in, aided or abetted, or conspired to commit, acts of international terrorism.” The order further provided, in part:

“Given the danger to the safety of the United States and the nature of international terrorism…it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.”

A series of legal challenges to the order culminated in the Supreme Court’s 2006 decision in Hamdan v. Rumsfeld concluding that Congress had not authorized the type of military commission the order created and that the commission stood in violation of the Geneva Convention and the Uniform Code of Military Justice.

Congress enacted the Military Commissions Act (MCA) in 2006 to deal with the Court’s holding in Hamdan and later amended the legislation in 2009 to address a range of other legal and policy concerns, among them, the Supreme Court’s 2008 ruling in Boumediene v. Bush holding that it is unconstitutional to strip federal courts of habeas corpus jurisdiction in all cases brought by individuals challenging their detention.

A myriad of procedural and legal issues have continued to crop up over the years growing out of the inherent differences between the Article I military commission and Article III federal courts. (For an overview of some of the legal issues, read the 2014 Congress Research Service report).

So where does the case against KSM and his co-conspirators stand today?

Colonel W. Shane Cohen of the Air Force, who is the third judge since 2012 to oversee the 9/11 cases, recently ordered the government to prepare plans for “the provision of food for everyone associated with the trial in any capacity for the nine months or so that the trial process could last,” acknowledging that the trial “will face a host of administrative and logistics challenges.”

The commission is set to decide complex questions about the admissibility of evidence. The alleged torture of the detainees – through waterboarding and other enhanced interrogation techniques used at secret CIA black sites – is complicating the prosecutors’ efforts to admit into evidence inculpatory statements made by the defendants.

In U.S. courts, a statement, such as a confession, is generally admissible into evidence only if it is given voluntarily, without coercion. In 2006, FBI agents attempted to obtain new, admissible confessions from KSM and the other men upon their arrival at Guantanamo Bay. These new investigators were referred to as the “clean teams.”

Under the current law applicable in military trials, a statement cannot be entered into evidence if it was obtained by “the use of torture or by cruel, inhuman, or degrading treatment.” Only “voluntarily given” statements – as determined by the “totality of circumstances,” such as the “military training, age, and education level” of the accused – are admissible.

The defense argues that new statements gathered by the FBI “clean teams” should not be presented to a jury because of the Bureau’s close cooperation with the CIA during the initial black site interrogations from 2002 to 2006. Though the extent of the collaboration between the FBI and the CIA is a subject of dispute, the defense maintains that the FBI’s involvement has blurred the lines between inculpatory statements extracted through torture and the statements the FBI “clean teams” later elicited at Guantanamo Bay.

In August 2018, the first trial judge assigned to the case, Colonel James L. Pohl, ruled that the statements made to the FBI “clean teams” were inadmissible, only for the statements to be reinstated by interim Judge Colonel Keith A. Parrella following Judge Pohl’s retirement. It is now up to Judge Cohen to once again determine whether each of the five defendants’ statements to the FBI should be admitted into evidence and whether justice will finally be delivered for the thousands of families whose loved ones perished in the 9/11 attacks.

Has the military commission failed to deliver justice? Let us know what you think by replying to this email or writing to us at [email protected].

THIS WEEK ON STAY TUNED

Retired FDNY Captain Brenda Berkman is this week’s guest on Stay Tuned. The only named plaintiff in a 1982 class action suit that forced the New York City Fire Department to accept women in its ranks, Captain Berkman served the city for 25 years, including on September 11, 2001.

In this sneak peek at the interview, Captain Berkman explains why it’s beneficial for firefighting departments to diversify their ranks:

If you have some people who have different life experiences that they bring to [firefighting] and they are actually heard, their opinions are actually respected, they’re encouraged to participate in the organization in an equal way–which didn’t happen a lot of the time–that is to the benefit of everybody. Corporations recognize this. They know that you need different voices in the room and the fire service has been very slow to come to this realization. Some departments are much faster than others. New York: like a dinosaur.

Don’t forget to listen to this week’s episode. It drops this Thursday, September 12th.

FOLLOW

The National 9/11 Memorial Museum is located within the archaeological heart of the original World Trade Center site. The museum is the country’s principal institution concerned with examining the historic implications of the attacks through multimedia displays, archives, narratives, and a collection of artifacts. Visit the 9/11 Memorial Plaza and Museum, which is open to the public year-round, and follow @Sept11Memorial to stay up to date on special events and announcements.

DOJ, KSM, OLC

If you haven’t already, listen to the latest episode of the CAFE Insider podcast: “DOJ, KSM, OLC,” and follow along with this transcript of the Preet and Anne’s conversation.

*Please note, you may now manually add your unique Insider Podcast feed to your favorite podcast app. Here are the instructions.

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

— The CAFE Team

Tamara Sepper, Carla Pierini, Julia Doyle, Calvin Lord, David Kurlander, and Aaron Dalton

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