Policy Responses To The Newtown Massacre

Earlier this month, a man stole three guns from his mother's collection, killed his mother, broke into a locked entrary at an area elementary school in Newtown, Connecticut, where he killed twenty-five people (mostly five and six year old children, as well as several adult school employees), and then killed himself.  We still have almost no idea what his motives were or what warning signs, if any, may have been misssed.

The immediate question that has come up in the wake of this tragedy is what policies governments could take to prevent these kinds of incidents from happening in the future.  Discussions have mostly focused on mental health treatment and the perpetual hot button issue of "gun control."

Other Recent Incidents And "Near Misses"

Not long before that, there was a mass shooting at a Washington State mall.

Earlier this year, a former graduate student at the University of Colorado Health Sciences Center in Aurora, Colorado went to a late night showing of the latest Batman movie, opened fire on a movie theater full of people killing many of them, and then was promptly apprehended.  We know that he had received some psychiatric care prior to the incident and made threats that had caused him to be banned from campus in the wake of learning that he had been dropped from his PhD program in neuroscience because of his poor academic performance.

There have been other incidents in Colorado in recent memory as well. 

The most famous was the Columbine High School shooting in Littleton, Colorado in 1999 where many students and teachers were killed by two disaffected students with guns who died in the incident who has also unsuccessfully tried to set off propane bombs that could have killed even more people. 

A Colorado man killed a couple of fellow college students in metropolitan Denver and then tried to go on massacre people at a Colorado Springs megachurch when he was killed by a female congregation member who was on duty as a private security guard at the church. 

A former student opened fire outside another suburban Denver public school, but was stopped by brave, unarmed faculty members at the school.

A man who had lost access to mental health prescriptions that had helped him manage his condition, opened fire and killed his ex-girlfriend at her place of work at a metropolitan Denver strip mall.

A mentally ill man attempted to assassinate Colorado Governor Ritter and would have killed others had a state trooper on his security detail not killed him.

A Douglas County woman who had a restraining order against her husband called law enforcement officials to let them know that he was armed and had taken their children and was likely to kill them, but Douglas County law enforcement officers ignored her pleas and he killed the children and himself before there was a law enforcement response.

Going Amok

The Indonesian language has a work for this kind of incident which English has borrowed as a loan work.  It is called "going amok".  These incidents have taken place at least once in all but three of the last thirty years in the United States, but are nevertheless very rare events.  There have been sixty-two such events over thirty years.  Frequently

The FBI statistics of multiple homicide incidents includes incidents like gang violence that don't fit this profile.  But, the incidents are much more similar to the more common incidents where someone kills a spouse and the family's children, and sometimes other family members or other people who happen to be present.  Another common fact pattern involves an attack at a workplace or former workplace of the perpetrator, or a school or former school that the perpetrator attended. 

Usually, far fewer people are killed in these incidents and usually few of the victims are total strangers.  But, a minority of these incidents, like the Newtown Massacre, do involve people who are predominantly total strangers to the perpetrator. 

The vast majority of the incidents in which large numbers of people are killed involve firearms, although not all of them do.  Many years ago, there was an elementary school massacre in the United Kingdom (where guns are almost completely banned) that was carried out with a sword, and in Japan (where guns are likewise almost completely banned) there was an incident in which a group tried to conduct a mass killing with poison gas.  Mass killings with machetes or other bladed weapons have been carried out with some frequency in Africa, although most of those incidents are more akin to insurgencies or tribal warfare than to "going amok" incidents.

Fewer than 80 people died in going amok massacres this year, and this year has been the worst such incident in (at least) the past thirty years.  More than 40 people died in the years that included the 2007 massacre at Virginia Tech and in the year that included the 1999 massacre at Columbine High School in Littleton, Colorado.  The average number of deaths per year over the last thrity years from this kind of incident has been less than twenty, and in additional there have been on average six or seven injuries from these events.  (Due to excellent work by first responders and Denver area hospitals, the Aurora theater massacre this year stands out as the incident with the highest percentage of victims who were shot but survived their injuries.)

There does seem to be an upward trend in the number of deaths from these incidents in the last few years, but the absolute numbers are very small and it is very hard to distinguish between random flukes and genuine trends in incidents that are so uncommon.

These incidents have never caused even 1% of all firearm homicides in the United States in a single year.  On average, over the last thirty years, they have accounted for about 0.2% of U.S. gun homicides.

Only two mass killings in the United States in recent memory, the 9-11 attack and the Oklahoma City bombing, were terrorist incidents rather cases of a homicidal and suicidal breakdown of a troubled individual whose problems were more personal than political.  (The shooting of Congresswoman Giffords and several people with her was arguably a third.)

Law Enforcement Responses During The Incident

The law enforcement response to the Columbine Shooting in 1999 was faulted for being too timid.  While first responders arrived on the scene very quickly, rather than pro-actively rushing while the shooting was in progress, they waited for backup or more highly trained SWAT officers arrived.  By then, the perpetrators had killed themselves and the incident was over.  Since then, law enforcement agencies nationwide have made it a matter of standard operating procedure to rush in immediately with whatever deadly force is available during "active shooting incidents."

Law enforcement officers have followed that policy in all subsequent massacres of this type in the United States, and have no doubt saved lives as a result.  The lives of scores of children in Newtown, Connecticut were saved earlier this month by this law enforcement response; the shooter killed himself when he heard police moving in to stop him.

Post-Incident Consequences

A very large share of people who commit these acts commit suicide or are killed in the course of the incident itself, and often set out in the first place to kill as many people as possible during the course of what is basically a suicide attempt.  Perpetrators who don't die while committing these incidents are invarabily captured within hours, charged with first degree murder, and either sentenced to death, sentenced to a prison term that extends for the rest of that person's life (or very nearly so), or found to be innocent by reason of insanity and involuntarily confined to a mental institution from which the perpetrator is almost never released (or at least, is not released from many decades).

This was true not only in the "going amok" incidents, but also in all three of the case of the people who actually carried out incidents which had political dimensions. 

There were perhaps as many as a dozen or two non-participant organizers of the 9-11 attack who were not immediately incarcerated or killed after that incident.  But, military action authorized by Congress in the wake of that event, carried out by Presidents George W. Bush and Obama, has resulted in the death of mastermind Osama bin Laden and many of his key subordinates and succcessors and their associated.  This military action led to the exile of the Afghanistan branch that planned the 9-11 attack to the frontier provinces of neighboring Pakistan.  The U.S. has captured and militarily detained many other individuals involved sometimes tangentially and sometimes influentially in the organization that planned and carried out the 9-11 attacks.  All together, more people have died at the hands of the U.S. and its allies in military actions seeking retribution for the 9-11 attackes (even excluding entirely the Iraq War which Dick Cheney claimed counterfactually was justified in some way by the 9-11 attacks that Iraq had absolutely no involvement in), than were killed in the attacks themselves; far more than had any meaningful or even tangential involvement in the 9-11 attack itself.

In short, existing criminal laws have a perfect record of holding people who personally carry out these incidents accountable in a way that makes repeat incidents by the same person or an ordinary post-incident life for that person, impossible.  And, in the only incident with substantial non-participant organization that was a terrorist act by a significant group of individuals, rather than a "going amok" act or plot of just a couple of individuals (and incidentally, an incident that did not involve firearms or explosives), vengence has still be very complete and effective.

There is essentially no room for improvement in the criminal justice response to these incidents.

Preventing Future Massacres

Deterring the people who carry out these incidents with the threat of extreme, swift and certain consequences for their acts is futile.  These consequences are already in place and haven't prevented these incidents from taking place at a very low level.  Criminal justice consequences don't matter to someone who is planning on dying in the course of their killing spree anyway.

Improved Mental Health Treatment

One approach which has been proposed has been to do a better job of identifying people whose mental health problems and pre-incident behavior marks them as a threat to others and themselves, and to be more effective in treating them and denying them access to weapons. 

The Mental Health System Is Fundamentally Broken

The mental health treatment system in almost all parts of the United States is deeply flawed.  It has never recovered from the blow is suffered when the mentally ill were deinstitutionalized; it has been reconstructed in only a piecemeal and inadequate way.

It is underfunded.  It is not very proactive.  It does not communicate names of people who should be prohibited from purchasing guns to gun purchase background check agencies reliably as U.S. law ineffectively mandates.  It is conflicted by tensions between a core principle of client confidentiality and the exceptions to those principles in situations where someone poses a threat to others or himself.  There are far more mentally ill people who are incarcerated, often for misdemeanors or quite minor felonies, and receive no treatment while incarcerated, than there are inpatient mental health patients - when these inmates terms of incarceration expire, they are at high risk of reoffending, perhaps in more serious ways.

But, even a much improved mental health system might not have much of an impact.  While there are just a couple of going amok massacre incidents in any given year, the profile of people at risk of committing them is sufficiently vague that the number of people who pose a greatly elevated risk of committing them at any one time is not less than 200,000 and could easily be 2,000,000 or more.  The likelihood that someone who after the fact would seem to have had all of the warning signs that he was about to carry out a massacre would, before the fact, have presented only a 1 in 100,000 or a one in a million chance of doing so.

On the other hand, an across the board improvement in basic mental health care systems, not directed primarily at preventing incidents like the Newtown Massacre certainly would be a good thing for all sorts of reasons not closely related to public safety, and might prevent some of these incidents as well, without anyone ever knowing it.

Moreover, the people who are in the best position to gain advanced knowledge of some sort of planning to commit a massacre (which is often fragmentary or entirely undocumented, as perpetrators often act alone and are private loners in their everyday lives), are often not part of the corps of professionals who can be feasibly taught to recognize the kind of conduct that is a warning sign for conduct that could cause deadly harm to others.

An overly pro-active response could produce vast numbers of false positive warnings on the basis of non-specific and non-definitive warning signs with consequences that could be as harmful as they are helpful and could simply cause people at risk of avoiding voluntary treatment for their mental health issues entirely.

Intermediate Responses To Mental Health Risks

One possibility to encourage precautions in gray areas would be to have options for concerned informants that are intermediate between calling 9-1-1 or seeking a short or long term mental health commitment, and doing nothing.  This could prevent incidents in the common cases where a threat is less than clear.

One would be the possibility of allowing concerned individuals to put a "yellow card" in a gun purchase background check database, based upon a reasonable suspicion, rather than probable cause or some higher standard of certainty, that there are concerns about someone's fitness to purchase a gun.  This "yellow card" might expire after some set period of time, but while in effect would trigger more of an investigation by authorities than a bare record check before granting permission to purchase a firearm.  The yellow card concerns would be made known to the person who would have an opportunity to rebut them, but there would be genuine investigations rather than mere record checks in cases where someone had flagged a concern.

Another would be to have a category of mental health determination below that for which a civil commitment was authorized, in which the individual adjudicated to be subject to it would remain in the community, but would be subject to search and check ins with officials similar to those for people on probation.  These kind of determination might require the same kind of probable cause needed for an ordinary search warrant (in this case, probable cause to believe that individual is a threat to himself or others), might be limited in duration, might come with a temporary gun ban while it is in force, and like a temporary restraining order might be capable of being undone in a hearing scheduled promptly after it is imposed.

Juvenile and Educational Disicpline Privacy

The sealing of juvenile deliquency records and secrecy surrounding juvenile delinquency proceeding and education insitution disciplinary records can deprive communities that include people who were involved in these incidents of the capacity to connect dots from prior behavior to current risks and from recognizing risks when they are present. 

Details of a juvenile delinquency and educational institution disciplinary record are frequently excellent predictors of future anti-social activity, and in the case of fairly young offenders who have recently had their records sealed, are far more probative of the risk that they pose to the public than their adult criminal records which are matters of public record.

On the other hand, the desire to give youthful offenders a fresh start is a major commitment of the current juvenile deliquency and educational discipline system that is deeply embedded in the current system both as a matter of state and federal law, and as a matter of the institutional culture of the organizations that administer these laws.

Gun Control

Gun control can dramatically reduce going amok massacres, murders, gun based violent crimes, and suicides.  But, it is only more than slightly effective if it involves, at least, a comprehensive ban in an entire border controlled country.  However, increased efforts to crack down on failures to secure guns from theft and on gray and black market gun transfers, and to improve background databases for gun purchasers might help somewhat.

American Exceptionalism

The United States in almost the only country in the world that has meaningful constitutional protection of the right to bear arms, and has levels of gun ownership which are stunningly high compared to most developed countries (the most notable counterexamples would be countries like Israel and Switzerland where there is mass gun ownership as a result of very comprehensive citizen militia membership as a matter of national security).  The United States is especially unrestrictive when it comes to the ability of private individuals to own handguns and to possess concealed weapons.

It is also clear that most of these massacres would have no have occurred at all, or would have been far less deadly, if the perpetrators had not had access to guns (in 54 of 62 cases, in particular, to handguns). 

Gun Control That Actually Works Is Mostly An All Or Nothing Affair

But, as the Newtown incident where the perpetrator stole the guns from his mother who was legally in possession of them, and the NRA slogan that if guns are illegal only criminal will have guns, illustrate, gun control measures can be only slightly and incrementally effective in the context of a nation where there are no internal border controls and there is widespread gun ownership. 

For example, a large share of the guns used in crime in both the Northeastern U.S., where the entire region long had strict gun control laws, were purchased in the South where gun control laws were more liberal and brought across unpatrolled borders to that region. 

Similarly, while Mexico has strict gun control law, enforcing those laws is difficult because internal policing efforts are deeply corrupted and rendered ineffectual by the illegal drug trade there (which is mostly financed by U.S. based consumers of illegal drugs).  And, while border crossing trips out of Mexico into the U.S. are highly regulated, trips from the U.S. to Mexico are not.  As a result, criminals have widespread access to guns in Mexico, most of which are purchased in the U.S. in states with weak gun control laws and then illegally exported to Mexico. 

In any situation where there are many people who can potentially have their guns stolen from them, or illegally sell their guns to people not allowed to own them, formal legal prohibitions on gun control will not be very effective in stopping the potential perpetrators who pose the greatest threat to public safety.

Gun control is close to useless if it is not comprehensive within an entire border controlled region in which law enforcement is otherwise generally able to maintain the kind of civilized, orderly societies where legal prohibitions are capable of having real meaning.

The only kind of gun control that has been proven to be effective, in places like Canada, the United Kingdom, Australia and Japan, is a nearly comprehensive ban on private handgun ownership.  Even in countries like Israel and Switzerland, where gun ownership is nearly universal as a result of large citizen militias, handgun ownership and possession are quite rare.  Comprehensive handgun ownership bans reduce the number of gun related homicides by 98% of more, and also materially reduce gun related suicides (the number of accidental deaths from guns would also be reduced, but is very modest relative to the number of gun related homicides and suicides).  A nearly comprehensive ban on handgun ownership might not reduce going amok massacres by the same percentage as these individuals might be more likely than most to use long guns if handguns weren't available, but it would surely reduce the number of people killed in going amok incidents materially as well.

This point was made nicely (via a Volokh Conspiracy post) by "Charles Krauthammer — a conservative, but one who is distinctly anti-gun — writing in the Washington Post in 1996:

The claim of the advocates that banning these 19 types of “assault weapons” will reduce the crime rate is laughable.... Dozens of other weapons, the functional equivalent of these “assault weapons,” were left off the list and are perfect substitutes for anyone bent on mayhem....

In fact, the assault weapons ban will have no significant effect either on the crime rate or on personal security. Nonetheless, it is a good idea, though for reasons its proponents dare not enunciate. I am not up for reelection. So let me elaborate the real logic of the ban:

It is simply crazy for a country as modern, industrial, advanced and now crowded as the United States to carry on its frontier infatuation with guns. Yes, we are a young country, but the frontier has been closed for 100 years. In 1992, there were 13,220 handgun murders in the United States. Canada (an equally young country, one might note) had 128; Britain, 33.

Ultimately, a civilized society must disarm its citizenry if it is to have a modicum of domestic tranquillity of the kind enjoyed in sister democracies like Canada and Britain. Given the frontier history and individualist ideology of the United States, however, this will not come easily. It certainly cannot be done radically. It will probably take one, maybe two generations. It might be 50 years before the United States gets to where Britain is today.

Passing a law like the assault weapons ban is a symbolic — purely symbolic — move in that direction. Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation. Its purpose is to spark debate, highlight the issue, make the case that the arms race between criminals and citizens is as dangerous as it is pointless.

De-escalation begins with a change in mentality. And that change in mentality starts with the symbolic yielding of certain types of weapons. The real steps, like the banning of handguns, will never occur unless this one is taken first, and even then not for decades....

As Krauthammer notes, in the short run, the only kind of gun control that could really work well is politically impossible.  Indeed, recent U.S. Supreme Court interpretations of the Second Amendment would very likely be held unconstitutional now as well, something that makes the prospect of meaningfully effective gun control seem even more distant now than it was in 1996 when he wrote his article.

Regulating Illegal Gun Transfers And Failure To Safeguard Guns

Still, cracking down through civil liabilty or criminal penalties, on people who transfer guns to people who are not allowed to have them and use them in crimes, or fail to secure guns that are as result fall into the wrong hands and are used in crimes, may be one of the most fruitful ways, short of outright gun prohibition, to prevent gun crime.  In particular, it is the most viable gun control approach to preventing some future going amok massacres like the one in Newtown, Connecticut.

This would be particularly the case if a crack down on sources of illegal guns was accompanied by more effective incorporation of mental health and juvenile delinquency and educational disciplinary information in databased that must be checked for someone to be eligible to legally purchase a gun.

While mentally deranged massacre perpetrators and violent criminals may not be deterred or influenced in their actions by laws further criminalizing those acts, legal gun owners or minor criminals who contemplate getting involved in the black market or gray market gun trade might be very persuaded to secure their own guns more effectively and to refrain from making technically illegal gun transfers, by threats of serious civil and criminal liability for doing so.

The community might also consider the acts of people who make it possible for perpetrators to gain access to guns might also be more strongly condemned morally, if the law clearly and specifically made their conduct illegal.  A shift in community moral norms about transferring guns to people in the gray market or black market, and about failing to secure guns from theft adequately, could bring about widespread voluntary compliance and reporting of third parties who fail to honor these widely accepted moral obligations to law enforcement.  Yet, this kind of reform might be moderate enough in its impact on lawful gun owners to potentially overcome resistance of the vast majority of people who legally own guns in time.  Legal gun owners right now often proudly talk about the importance that they place on training and safety precautions.  Moral disapproval of gray and black market gun transfers and inadequate gun safeguards could be incorporated into that ethos.

For example, in the Newtown case, the perpetrator's mother might have more effectively secured her guns if these kinds of laws were on the books and has made their way into the ethos of lawful gun owners.  It might very well not have done that, but the chance of that happening would have been greater if these laws were on the books at the time.

TSA Style Security Measures Counterproductive

A new book, "Against Security" by Harvey Molotch, reviewed here, cogently argues that the approach to securing public places exemplified by the Transportation Security Administration, is really "security theater" that may actually put us at greater risk.

Sometimes we implement security measures against one threat, only to magnify another. . . . special “high-entry” subway turn­stiles make it much harder for people to sneak in for a free ride but also make platform evacuations much slower in the case of an emergency. . . .

[E]ffective security comes less from the top down and more from the bottom up. . . . When we don’t know what sort of threats we want to defend against, it makes sense to give the people closest to whatever is happening the authority and the flexibility to do what is necessary. In many of Molotch’s anecdotes and examples, the authority figure—a subway train driver, a policeman—has to break existing rules to provide the security needed in a particular situation. Many security failures are exacerbated by a reflexive adherence to regulations. . . . this kind of individual initiative and resilience [is] . . . a critical source of true security.

We get much more bang for our security dollar by not trying to guess what terrorists are going to do next. Investigation, intelligence, and emergency response are where we should be spending our money. . . .we do better as a society when we trust and respect people more. Yes, the occasional bad thing will happen, but 1) it happens less often, and is less damaging, than you probably think, and 2) individuals naturally organize to defend each other. This is what happened during the evacuation of the Twin Towers and in the aftermath of Katrina before official security took over. Those in charge often do a worse job than the common people on the ground. . . . we should focus on nurturing the good in most people—by giving them the ability and freedom to self-organize in the event of a security disaster, for example—rather than focusing solely on the evil of the very few.

A low key, liberal society has a lot of payoffs that even its advocates often don't fully appreaciate. A society where people are comfortable passing along tips to the right people are more effective than checkpoints, and reliance on every day heros may be more effective than efforts to creat giant bureaucracies of security specialists.

We would also be well served, generally, by learning to better teach our children the generalized skill of self-organization, something that Americans have tended to do less well in the last half century or so, for example, than their Japanese and British peers.

Probate Law and 9-11

Osama bin Laden is dead. Why care? Because it opens the door to probate claim litigation in his estate for 9-11 victims.

Osama bin Laden evaded civil liability for 9-11 and other terrorist attacks prior to his death because no process server could find him.

Bin Laden’s death could open the door to civil litigation targeted directly at him if new assets are uncovered, said Bill Wheeler of Mississippi’s Wheeler and Franks. The firm is pursuing a civil suit pending in Washington federal court stemming from the 1998 embassy bombings in Africa.

If an estate is discovered abroad, said Wheeler's co-counsel, James Franks, “that would be much easier than trying to get service on bin Laden [when he was alive].” But the ability to access those assets would depend on the probate laws in that country, he added.

Of course, the probate issues in these kinds of cases are non-trivial. Bin Laden was a Saudi Arabian national and at the time of his death was domiciled in Pakistan, both jurisdictions that use Islamic law as determined in Shari'ah courts to determine the inheritance rights in the estates of Muslim decedents like Bin Laden. In rem jurisdiction would also be present, under general Anglo-American and civil law principles, in jurisdictions where Osama bin Laden owned property. My understanding is that he was disinherited by his family, so none of the substantial inheritance to which he would otherwise have been entitled would be available to him or to his creditors.

Testamentary freedom is limited in the Islamic law regime, with only one-third of an individuals estate distributable to a non-designated heir, and I am not familiar with how it handles claims arising from the acts of decedents. Western legal systems typically provide some priority in an estate for spouses and children of a decedent over the claims of tort creditors. Also, it is likely that Bin Laden dedicated a significant share of his wealth to religious organizations which he controlled, rather than personally owning that wealth.

Shari'ah law does provide for the payment of "blood money" (diyah) when one causes the wrongful death of another, a remedy that parallels that of a civil suit, but there is not consensus among scholars of Islamic law over whether the 9-11 terrorist event was wrongful. Some Islamic law scholars have issued proclamations stating that the attack was wrongful under Islamic law, but Bin Laden likely had conferred with an Islamic law scholar, or had the authority as an Islamic law scholar himself, to determine that the attacks were conducted pursuant to a valid Jihad.

Not surprisingly, the Quran, which is the primary source of authority in Islamic law, is particularly sparse in resolving issues of jurisdiction, venue and collateral estoppel in a system of Shari'ah law courts that has no one central organization and was mostly not in place at the time that the Quaran was written.

Indeed, from a formal structural perspective, a large share of all the schisms and conflicting interpretations of Shari'ah within Islam that divide it into religious sects and national polities have this lack of clear canon law jurisdictional rules at their root. The problem is somewhat less acute in Shi'ite Islam, where there is or was for a long period depending on the sect, a living person to adjudicate these disputes, than for Sunni Islam, but in Shi'ite Islam, disputes over the legitimate order of succession among Imams (itself a quasi-probate issue) produced similar schisms.

Criminal Trial For Gitmo Defendants A Safe Bet

Those who were worried that the 9-11 defendants would be acquitted by New York juries, rather than being convicted by military tribunals needn't have worried.

At least one -- and possibly all five -- of the detainees with alleged ties to the terrorist attacks of September 11, 2001, will plead not guilty in a "justification defense," arguing the attacks were responses to American foreign policy, according to a lawyer who met with one of the defendants.

Attorney Scott Fenstermaker said he met with defendant Ali Abd al-Aziz Ali at the Guantanamo Bay, Cuba, detention facility last week, and that when Ali and four other men face trial in New York, they likely will plead not guilty and then argue that the attacks were justified.

Fenstermaker, who is representing Ali in a procedural matter at Guantanamo, said he expects Ali will acknowledge a role in the 9/11 attacks, and believes Ali's goal in pleading not guilty would not necessarily be acquittal. The attorney said Monday that during his meeting with Ali at Guantanamo, "he said, 'Here's my goal,' and he wrote down the word 'death' on a piece of paper." . . . He said he cannot speak on behalf of the other four suspects, but he understands they have agreed to coordinate their strategies.

This isn't exactly a surprise. IIRC, men said they were guilty and asked for executions before military tribunals. The likelihood that the defense will involve making a political case against America, rather than a case of legal innocence, also avoids a host of thorny criminal procedure issues flowing from the initial decision of the U.S. government to detain these men as enemy combatants, rather than to move forward in the criminal justice system.

A New York federal jury may or may not hand down a death penalty as the cases are considered one by one. It is certain that Eric Holder, Jr., the U.S. Attorney General, will press charges that authorize the death penalty. It is virtually certain given the defense posture, that there will be convictions on those counts. Indeed, there is little reason to think that the defense will vigorously fight the death penalty in these cases. If there is any crime that could spur a New York jury to impose the death penalty, it is this one. And, this is one case where there is essentially no chance that a Presidential pardon would be forthcoming. President Obama has said as much.

Suppose a jury decides not to impose the death penalty. Shouldn't the will of the people of the Southern District of New York (basically the New York City metropolitan area), as expressed through the jury, prevail?

The discussion in the jury room will probably be one driven by foreign policy. Would these executions, really suicides by court, serve a valid purpose? Should we make them martyrs or not? There are arguments either way on that point. A New York City jury, as representatives of the victims where the crime impacted so many people, is particularly suited to make that choice for these men. They come from a legal culture where representatives of the victims usually have the ultimate say on the imposition of the ultimate penalty.

Eight Years Evaluated

Today's date does not go unnoticed.

In about four years, a replacement for the World Trade Center buildings that were destroyed, called the Freedom Tower, will be ready for occupancy.

The Pentagon building has been repaired and a memorial has been errected.

When the damaged section of the Pentagon was rebuilt, a small indoor memorial and chapel were included, located at the point of impact. For the fifth anniversary of the September 11, 2001 attacks, a memorial of 184 beams of light shone up from the center courtyard of the Pentagon, one light for each victim of the attack. In addition, an American flag is hung each year on the side of the Pentagon damaged in the attacks, and the side of the building is illuminated at night with blue lights. After the attacks, plans were developed for an outdoor memorial, with construction underway in 2006. The Pentagon Memorial, which consists of a 2-acre (8,100 m2) park with 184 benches, according to the victims' ages, from 3 to 71, was opened to the public on September 11, 2008.

A temporary Flight 93 memorial has been established while a permanent one is built, at the crash site.

Many, probably most, of the legal claims of 9-11 victims have been settled. One such mediation result was just released last month.

The Military Response and Anti-Terrorism Response

The main rsponses to 9-11 that are visible to the average American are increased airport security measures and an increased bureacratic burden to get identification documents. There have been military, quasi-military, criminal, legislative, and judicial reseponses as well. But, there has been no draft to raise personnel for these ventures which have relied on Reserve and National Guard forces instead, the active duty military is only slightly larger, and the trillions of dollars of spending for these efforts has been financed almost entirely with borrowed money rather than tax increases.

Less than a month after the 9-11 attacks in 2001, the U.S. had intervened militarily against al-Qaeda which was behind the attack, and the Taliban, the leading political force in a civil war torn Afghanistan which was al-Qaeda's base of operations and was not cooperative enough with U.S. authorities in taking action against al-Qaeda to suit it. The ultra fundamentalist Taliban regime was routed in less than fourteen months.

Low level conflict has continued since then as a civilian regime in Afghanistan was rebuilt around the Northern Alliance of warlords who had opposed the Taliban. al-Qaeda and Taliban leaders fled mostly to Northwest Pakistan's frontier provinces where active military conflict with Pakistani and U.S. forces continues. Taliban ressurgence in Afghanistan has led President Obama to increase troop levels in Afghanistan while moving towards the slow withdrawal of U.S. troops from Iraq.

The scope and details of the Central intelligence agency campaign against alleged terorists in the wake of 9-11 that included secret prisons and torture of detainees are starting to be revealed. CIA torture carried about before high level approval was obtained from the Bush Administration, who were not granted a Congressional amnesty as those who took actions with legal cover were, are being investigated criminally. The role of many senior Bush Administration officials and White House lawyers who approved and provided legal cover to the CIA's illegal actions have been disclosed.

Hundreds alleged terrorism figures were detained indefinitely without due process at at a U.S. military base at Guantanamo Bay, Cuba. Large numbers of those detained there have been deported. An Australian man pleaded guilty at a military tribunal and served his sentence in his home country. The right of the detainees to habeas corpus review has been recognized by the courts and the first cases are starting to come to judgment, some ordering the release of prisoners, although no release purely due to a court order has taken place yet. The legal process for these detainees, now numbering a little more than two hundred, is still in flux, and President Obama is considering moving them to a U.S. based detention facility. Many rural towns that already have prisons would welcome the opportunity to handle such a facility.

The handful of enemy combatant detentions of U.S. citizens or of legal aliens present in the United States have had their cases concluded, either through transfer to the criminal justice system for terrorism related charges (Padilla and Al-Marri), or through deportatioon (Hamdi). There are some bad precedents supporting the authority of the government to take these actions that remain on the books. Jose Padilla was convicted of conspiring to carry out deadly terrorist acts by a Floridaa jury and his case is now being appealed. A number of terrorism related criminal cases in the United States have produced convictions.

Some leading al-Qaeda and Taliban figures have been detained or killed. Osama bin Laden, the putitive leader of al-Qaeda, is not among them.

Civil liberties litigation over abuses of material witness warrants, mistreatment of Muslim detainees in jail, "extraordinary rendition" of terror suspects to countries that practice torture, illegal wiretaps, and other abuses of state power that followed 9-11 are at various stages, often involving defenses unique to national defense cases. The U.S. Supreme Court in Ashcroft v. Iqbal, one such case, narrowed the substantive scope of civil rights liability for supervisors and heightened the standard for dismissing lawsuits for failing to state a claim in all lawsuits cases. The U.S. Supreme Court has now handled a number of war on terrorism related cases.

There is also some possibility that federal courts may grant some habeas corpus review to those held as enemy combatants in foreign prisons controlled by the United States, particular in Baghram, Afghanistan, which appears to be the largest such prison, where many detainees were captured elsewhere and brought to Afghanistan, undermining an extigencies of the battlefield justification for a lack of U.S. court review. The question of the extent to which U.S. Constitutional rights apply outside U.S. territory in placces the the U.S. controls remains an open one.

Torture and the intrusive search measures instituted that do not rely on probable cause have not produced meaningful benefits, and have come at high civil liberties and war on terrorism success costs. For example, some CIA agents face indictments for their unlawful actions in key ally Italy, where the U.S. relies on an Air Force base for its Middle Eastern operations.

The Obama Administration is still in the process of coming to terms with what practices of the prior administration it will defend and which ones it will abandon. The results to date have been less of a change than many of the President's supporters in the election expected.

President Bush commenced the Iraq War in 2003 on two main pretenses, first that Iraq was a supporter of Al-Qaeda, and second that it had weapons of mass destruction that were a threat to the region. Both of these pretenses were false. There was no link between 9-11 and Iraq until after President Bush (the younger) created that link. More U.S. soldiers were killed in Iraq than were killed on 9-11. The Iraqi deaths have numbered in the hundreds of thousands. The removal of the old Iraqi regime without providing a prompt replacement produced a cauldron of ethnic violence that has physically segregated the country, produced hundreds of thousands if not millions of refugees (most numerously in Jordan and Syria), degregated the economic standard of living and safety for almost everyone in the country, and left an weak civilian government that will be hard pressed to continue to operate Iraq as a true single country. Detainee abuses by U.S. forces in Iraq together with widely perceived injustices and abuses in the U.S. War on Terror has provided a rallying cry for anti-American militant groups worldwide making Americans less safe and undermining America's reputation as a defender of human rights. U.S. troops are in the process of a measured and phased withdrawal that will take more than a year from now before it reaches a more or less permanent low level presence.

The U.S. has rendered impotent two of the main potential military threats to Iran, from Iraq and Afghanistan. Iran, meanwhile, recently publicly put down public unrest in response to an unfair election and has been not very responsive in addressing international concerns about its nuclear programs. The new Iraqi government, because it is Shi'ite dominanted, is a natural friend for Iran, while the old regime was a natural enemy for it.

Obama Moderates Detainee Policy

The Obama Administration is taking a less extreme position than the administration of George W. Bush regarding Presidential authority to engage in extra-judicial detention, but isn't abandoning a claim to the power either. SCOTUS Blog explains:

Here are the differences:

First, the new version requires proof of “substantial” support of Taliban or Al-Qaeda forces, while the former version required proof of “direct” support of such forces.

Second, the new version requires proof of “substantial” support of forces (other than Taliban or Al-Qaeda) engaged in hostilities against the U.S. and its coalition partners, while the former version only required “support.”

And, third, the new version applies to a person who “directly” supported hostilities to aid enemy armed forces, while the former version only required “support” of such hostilities, and did not include the word “armed” as to enemy forces who had been supported.

The practical effect of this position is to strengthen the case, legally and politically, of the more marginally culpable individuals detained at Guantanamo Bay, Cuba by U.S. forces as enemy combatants, in part in the hope that admitted terorrists and more culpable individuals who remain there can still be detained indefinitely, probably in some U.S. prison or military brig.

The Obama administration is also relying strictly upon the Authorization for Use of Military Force declaration from Congress, rather than the inherent powers of the President as Commander-in-Chief. This is notable because the 2001 AUMF applies only to people appropriately connected to "the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks," and to "persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners."

Outside the arena of the war in Afghanistan (and neighboring areas like Northern Pakistan), this is quite a small subset of all people who are terrorists or allies of potential military adversaries. It would exclude, for example, individuals affiliated with the "Real IRA" of Ireland, the Tamil Tigers of Sri Lanka, or, in all likelihood, perpetrators of the Mumbai terrorist attacks of Thanksgiving 2008.

Then again, the Obama administration has simply argued that the President's power to conduct foreign affairs and act as commander-in-chief, is inapplicable to the very specific situation of Guantanamo Bay, Cuba, not that the President is entirely without authority to act outside the criminal justice system against foreign terrorists in general. But, the existence, scope and source of James Bond-like license to kill authority for U.S. government agents acting at the direction of the President against people believed by the President to be national security threats is not entirely clear. Such cases have largely escaped the courts, in part due to legal doctrines like the "state secret doctrine" (which the Obama administration has defended), the requirement of legal standing to bring suit, absolute and qualified governmental immunities to civil rights liability, the War Powers Act that abdicates Congressional war making authority for small, short conflicts, and the statutory limitations to the causes of action that do exist, such as the Alien Tort Claims Act.

The Congressional authorization for the war in Iraq, unlike the 2001 AUMF, was less amorphously directed at a non-geographical, non-state actor like al-Qaida, and that Congressional authorization has decreasing relevance as U.S. forces withdraw from Iraq and are government by the additional restrictions of status of forces agreements with the Iraqi civilian government.

The Obama administration has also moved away from the Bush Administration "enemy combatant" to describe the detainees at Guantanamo Bay whose habeas corpus petitions are now being viewed by multiple judges in the U.S. District Court for the District of Columbia.

Then there is the issue of geography. Some judges, particularly in the U.S. Court of Appeals for the D.C. Circuit have placed great importance on the legal status of the place of the detention. But, the U.S. Supreme Court's recent rulings on the issue have been more equivocal and focused on particular facts and circumstances.

[T]he [Obama administration] memorandum asserted that the detention power “is not limited to persons captured on the battlefields of Afghanistan.” It mentioned those who “provide substantial support” to a terrorist network “in other parts of the world,” but did not say what that reference meant — and, thus, did not exclude applying the detention power inside the U.S., when “substantial support” for terrorism is found inside the country. . . .

The memorandum expressly noted that the new definition would only apply to individuals now held at Guantanamo Bay. That leaves out, among other detention sites, the U.S. military jail operated at Bagram airbase in Afghanistan. Earlier, the Obama Administration told Judge Bates that it was not changing the Bush Administration view that the Bagram detainees have no rights to challenge their captivity there.

The question of the right to detain people in the U.S. for suspected terrorism raises the issue of the continued validity of the post-U.S. Civil War case, Ex Parte Milligan which was believed to place great limitations on Presidential detention powers within the United States in places where the courts are functioning, but has been called into question by the Padilla and Al-Marri cases, and complicated by a case involving U.S. military saboteurs on U.S. soil during World War II, and a U.S. Supreme Court ruling on the detention of those of Japanese descent during World War II (and subsequent legislation in reaction to that case).

On the other hand, at this point in time, there is no one in the United States (apart from Guantanamo Bay, Cuba) whom the United States government or any credible source has claimed is detained as enemy combatant (although some U.S. nationals have been detained in Iraq in connection with the U.S. conduct of military operations and support of the Iraqi civilian government there).

All other persons detained in the U.S. are detained under long established doctrines such as those in connection with the criminal justice process, foreign extradition laws, the juvenile court system, the mental health custody process, immigration detention process, civil contempt power, the material witness laws, or the very short term preventative detention in connection with terrorism cases allowed by the U.S.A. Patriot Act. The only people held prisoner under military authority in the U.S., apart from Guantanamo Bay, Cuba, are U.S. soldiers detained in connection with the U.S. military justice system. Of these, only brief military detentions of U.S. military personnel, and some immigration detentions lack meaningful supervision from either civilian courts or courts-martial. Court intervention in immigration cases by writ of habeas corpus is sometimes possible, but is very attenuated and often the government claims that detainees have waived what rights they may have to court review of their detention. Practically speaking, even a U.S. citizen misidentified as a deportable non-citizen might secure relief more quickly by accepting deportation and then applying for assistance from a foreign U.S. embassy, than by trying to secure relief while detained by immigration officials through the U.S. court system. Of course, for non-U.S. citizens, securing any legal rights at all is often dependent upon remaining within the U.S. until legal rights can be adjudicated.

Outside the U.S., U.S. troops and certain people affiliated with them may be detained at U.S. military facilities and subjected to U.S. military justice, and in exceedingly rare cases, federal criminal cases are conducted through a U.S. embassy, but most detentions under U.S. authority abroad are made by U.S. military forces or their agents in places where U.S. forces are engaged in wartime deployments (primarily Afghanistan and Iraq).

The Bush Administration was also widely reported by major news outlets to have a network of CIA prisons across the world for extra-judicially detained terrorism suspects, possibly numbering in the thousands. It is unclear how much of that network remains, in the face of complaints from allied nations where those prisons are located, or how many people remain in that kind of detention.

And, it is also unclear to what extent that U.S. affiliated operatives continue to engage in "extraordinary rendition" which is the process of delivering terrorism suspects to be detained by cooperating countries known to mistreat detainees for interrogation and/or punishment purposes. People detained by foreign powers whose detention the U.S. government does not actually control are clearly beyond the scope of traditional habeas corpus jurisdiction, but the U.S. could conceivably be found liable for civil rights violations under these circumstances, something that has so far not occurred.

President Obama has also made no indication that he has backed away from the position of prior administrations that have claimed the authority to detain and return to the U.S. criminal suspects outside the extradition process, a power that the U.S. Supreme Court has upheld, at least in one Mexican case.

It does appear, however, that the Obama administration has disavowed torture to a much greater extent than the Bush Administration did.

The Obama Administration has also stated that it is continuing to review its policies over the next six months.

Six years later

The day started out a lot like today for me, six years ago. It was pleasant enough. I had breakfast and read the morning paper, and started my morning way across town for a work related matter, leaving directly from home. I chose to listen to a CD rather than news on my drive.

I arrived at court that morning ignorant that anything was going on. Most of those around me, as I waited in the county court cattle call, knew little or nothing. Some mumblings started just as I was sent by a court clerk to schedule a hearing at a different office, but it sounded so absurd that it must be a joke. By the time I'd made it upstairs, it was clear that it was more serious. Security was starting to seal off the court house as I left that morning. I spent the better part of the rest of that day on the Internet, trying to glean news of the day's events.

Six years later, it is still almost impossible to start your day before thinking about anything else. The date, 9-11, is how we have collectively chosen to describe the events of that day.

No, 9-11 did not change everything. It didn't impact how we provide health care to one in seven Americans who lack it. It didn't change the lackluster state of public education. It didn't make much of a dent in the economy in the long or medium term, outside the airline industry. But, it did leave an indelible mark on our nation.

The response to 9-11 has defined the Bush Presidency, and he has badly bungled it. The Afghan war began rather well at the beginning. A small U.S. force, about a division in size, toppled a Taliban regime on the verge of completely winning a civil war, and a home grown political regime to follow it was put in place rather cleanly. The regime was not all we might dream of, but it had reasonable legitimacy. Osama bin Laden got away, due to bungling, but he was on the run.

But, five and a half years later, the new regime may be in charge, but the Taliban are resurgent and certainly not wiped out. Osama bin Laden or his successors have regrouped at a new base in the wilds of Northwest Pakistan, a nation whom we cannot invade as we did Afghanistan, because its undemocratic regime has nuclear weapons. Detainees from that conflict remain at Guantanamo Bay, symbols of a failed detention policy that has destroyed our nation's international standing, even as the war in Afghanistan itself that these men were fighting (never intending to fight Americans in the first place) is arguably over. There hasn't been another 9-11 attack, but there is little evidence to indicate that the policies taken in reaction to 9-11 helped. It turns out that we had more warning of 9-11 than one would have expected and failed to act.

We have the Patriot Act, but there is little indication that it has made us safer. In any case, the administration has gone far beyond the longer leash it was granted in that legislation. We have the Transportation Security Administration and the terrorist watch list, neither of which has made us safer. We have an ominously named, but half sensible in concept, Department of Homeland Security. But, the Department of Homeland Security has frittered away its credibility with anti-terrorism grants to municipal safety departments in the middle of nowhere, undue attention in its financial transaction and emigration monitoring to Cuba, and an immigration policy focused on deporting Mexican family men supporting their families in construction and meat packing jobs. We have gutted civil liberties and pardoned American war criminal with the Military Commissions Act and the President's pro-torture and anti-due process policies that it ratified, again, with no practical benefit in making us safer. We have reorganized the intelligence establishment and grown the CIA enormously, but it isn't clear that this has been more than a bureacratic reshuffle or that the increased investment is producing increased results. Instead, we've learned just how poor an instrument of policy the CIA has been historically.

We have every reason to quarrel with Saudi Arabia. It was the main sponsor of the Taliban. Most of the 9-11 hijackers were Saudis, as is Osama bin Laden. It has no respect for human rights. It is a powerful anti-Democratic force in the Middle East, and a powerful supporter of radical Islamists. It is a main source of foreign fighters in Iraq. But, instead, we routinely sell them many of our most advanced weapons in large quantities, arming them for a war in which Israel, our ally, is the most plausible opponent. But, they have oil, and that changes everything when we have an oilman in the White House.

Mysteriously, 9-11 was used as a justification for the Iraq War, despite the fact that it had nothing to do at all with Iraq, and contrary to our claims, had no weapons of mass destruction. Honestly, Iraq was one of the more multi-ethnic and secular countries in the region and had a larger middle class than most. Like the Afghan War, it began with a stunning victory for U.S. troops. No country so large, with a military comparably modern, has ever fallen so fast, with such a disproportionate casualty rate between the invaders and the invaded. Iraq was conquered in a couple of months. But, things fell apart. We were prepared to invade, but not to occupy. We blew the brief honeymoon period in which we could have established a legitimate successor government and a climate of peace and order. As a result, we have spent four and a half years fighting a brutal guerrilla war with multiple insurgent groups. The political institutions we have put in place haven't worked well. Iraq is now a breeding ground for terrorism and a failed state. We remains there solely because we broke it and haven't managed to fix it. We are simply looking for a graceful exit and can't find a way out.

Moreover, we have fought the Iraq war on a peacetime footing, with reserves, the national guard, and by overtaxing our troops. Funding of non-war related defense expenditures has continued largely on a business as usual basis. The active duty Army and Marines have grown only slightly, unlike every other war we have fought, and the total active duty military is constant in size, although we have spent much, much more money to fight a war than we would in peace time -- but we have financed the war with debt, while allowing tax cuts for the rich to remain on the books and growing domestic spending. There has, of course, been no draft, either. We have also, adapted our procurement to the current military demands slowly, at considerable cost in loss of life, as items like armored patrol vehicles and body armor and improved small arms have taken a back seat to medium to long term big ticket purchases like new ships and supersonic stealth fighter aircraft.

The 9-11 lawsuits are almost over. Rudy Giuliani was crowned as a leader for how he reacted, George W. Bush was shamed as an incompetent coward. The structural engineers have almost finished digesting the lessons learned from the collapse of the towers. The reconstruction of the World Trade Center and the Pentagon has begun. The passengers of flight 92 that prevented another tragedy by fighting back, are epic heroes of the American consciousness. American business and the American military, the targets of the attacks successfully hit, have fully recovered from the direct damage caused by the attacks. New York is still thriving. The 9-11 widows and orphans have been provided for now, shoved out of the national consciousness by the families of soldiers in our Afghan and Iraqi war who return dead, brain damaged, afflicted with post traumatic stress disorder, or who are simply in peril and far away for long periods of time.

Six years later, we are ready to try to return to normalcy and ordinary problems, but afraid that another attack will set us back all over again. We are weary of war. We are not safer. We are not doing much that is constructive to solve the problem. We need a leader to take out out of this wilderness. We hope that one of the leading Presidential candidates will rise to the challenge. We don't have high hopes.