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KSM’s Circus

Justice or a Show Trial?

Khalid Sheik Mohammed’s attorney has his hands full.

Idahoans who know Boise criminal defense attorney David Nevin, a quiet, well-spoken, extremely thoughtful fellow, will instantly identify with the challenges he confronts in a courtroom in Cuba as he attempts to mount a defense for the world’s most notorious terror suspect. Nevin, a University of Idaho law grad, would be the first to acknowledge that the sense of fairness that is supposed to be at the heart of our adversary-based judicial system, coupled with a commitment to the “rule of law,” is at the very core of what Americans mean when they think about the concept of justice.

Yet, the circus-like atmosphere that prevailed last Saturday during the long awaited arraignment of KSM and three other defendants seems to have little to do with the American system. “The system is a rigged game to prevent us from doing our jobs,” Nevin complained at the end of the 13 hour proceeding last weekend conducted before the military commission that will, probably years from now, put Khalid Sheik Mohammed on trial.

Specifically, attorneys for the terror suspects can’t have anything like a normal attorney-client relationship with the men they are supposed to be representing. Everything that KSM says, even to his lawyer, is apparently being considered by the government to be a state secret. And torture, specifically the allegation confirmed by the CIA that KSM was waterboarded 183 times, and that torture may have led to a confession is, so far, off-limits in the proceedings.

“The government wants to kill Mr. Mohammed to extinguish the last eyewitness to his torture,” Nevin said, as reported by McClatchy’s Carol Rosenberg.

Nevin is living out the highest calling of the American criminal justice system; the notion that everyone – even the man accused of plotting to bring down the twin towers – deserves a fair trial, a chance to hear all the evidence against him and to introduce evidence, including evidence of torture, if it may help his defense. The trouble for Nevin is simply that he’s been asked to supply an adequate defense for his client in an environment of secrecy and possible torture, while the awful wounds of 9-11 still haven’t begun to heal.

Here’s the real rub: the government of the United States wants to bring these guys to justice – we all do – but for largely political reasons has determined it cannot trust the normal, open American judicial process to work as it should. A decision by Attorney General Eric Holder to conduct the legal proceedings in a New York federal courtroom ignited a firestorm of protest, the Congress got involved and the Obama Justice Department backed down. The military commission with its secrecy, determination to protect “state secrets” and Kafkaesque rules is now what David Nevin and the other lawyers at Gitmo must deal with.

One of the toughest critics of the Gitmo process is the now-retired Air Force Colonel and one-time terrorist case prosecutor, Morris Davis, who resigned his commission and retired rather than go along with a Pentagon ruling that waterboarding was permissible in dealing with terror suspects.

“After a decade of starts and stops and revisions and failures, the system is already presumptively discredited,” Davis said in an interview recently with the Los Angeles Times. “That the apologists for the commissions say they are essentially the same, or virtually the same, or nearly the same as federal court — the fact that they have to put a qualifier on it proves it is not the same.”

Davis predicts that KSM will eventually be executed, a martyr’s death he wants, after wringing the maximum propoganda value from the proceedings. “If we execute him, we will be giving him exactly what he wants,” Davis said.

Our government’s zeal to protect secrets almost always leads to bad outcomes. The desire to protect the secrets tends to pervert the very process that the secret allegedly protects. In the Gitmo cases, the most likey outcome is conviction of KSM and the others for the unspeakable crimes of September 11, 2001 and, while that might feel like justice it also might look to the rest of the world as an outcome derived by means of a distorted and unfair process.

The fundamental strength of the United States, including a justice system that has rules, procedures and methods to protect even the guilty, ends up looking to our enemies like an updated Stalin-era show trial. If the 9-11 mastermind is guilty – and I have no doubt he is – then show the world the evidence in open court. Try him as the suspected criminal he is, not some super human hoarding great secrets, and use the strength of the American justice system to show just what kind of man he is.

We must have a system of justice that is better than those individuals to whom we apply it. It’s doubtful these commissions will pass the test of history and let’s hope we don’t regret that failure to live up to our own best standards.


Slippery Slope

The Ultimate Act of the Imperial Presidency

At least since 1933, when Franklin D. Roosevelt actually suggested in his first inaugural address that he might need to ask Congress for what he termed “broad Executive power to wage a war”  in order to respond to the economic ravages of the Great Depression, every president – every president – has sought to expand, and has expanded, the authority of the nation’s Chief Magistrate. FDR’s critics suggested he really wanted dictatorial powers or, seemingly more benignly, a vast concentration of power in the hands of the president.

In terms of threats to the Republic and erosion of the basic strengths of the founding document, the steady, unchecked expansion of presidential power dwarfs any other complaint the Tea Party or anyone else has about the country slipping from its Constitutional moorings.

While the impact of Roosevelt’s accumulation of presidential power is still widely debated – it’s clear FDR stopped short of becoming a dictator – there is no doubt the modern presidency vastly expanded in scope from what the founders envisioned during his presidency. FDR set the country, and the White House, on the course to what Arthur Schlesinger, Jr. came to call “the imperial presidency.” There has been little let up since.

Harry Truman in 1952 nationalized the steel industry, or tried to, and Dwight Eisenhower planned and John Kennedy implemented, in perfect hindsight, a crazy plan to invade Cuba.

Lyndon Johnson put the patina of legality on the Tonkin Gulf Resolution in 1964 that gave him license to expand the American war in Indochina with a formal declaration of war. As we now know the resolution provided the Executive Branch with a “legal” fig leaf to expand the war on LBJ’s own motion, which, of course, he did. It’s worth noting that this particular expansion of presidential power took place during an election campaign.

Later in the 1960’s, Richard Nixon expanded that awful war into Cambodia and attempted to do it secretly. Ronald Reagan traded arms for hostages, secretly in the 1980’s. George W. Bush, history will record, used the full and always expanding power of the Executive Branch – including cherry-picking intelligence – to make the case for the invasion of Iraq. The march goes on.

Mostly lost in the daily drama of the Republican presidential campaign, the Occupy Wall Street demonstrations and the on-going economic slump is what may turn out to be one of the most profound expansions of presidential power ever.

On October 14, 2011, the President of the United States of America authorized an unmanned drone strike designed to kill an American citizen living in Yemen. It worked. New Mexico-born Anwar al-Awlaki, usually described as a radical Muslim cleric, died in the strike in a remote corner of the Middle East along with several other alleged Al Quada operatives. Killed along with the cleric was his Denver-born teenage son, 16-year-old Abdulrahman bin Anwar Al Awlaki.

The Obama Administration has justified the killing of U.S. citizens – the real target was the elder al-Awlaki – by producing a still secret legal memorandum that was detailed, to some degree, in a New York Times article on October 8.

The Times reporting noted: “The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.”

Narrowly drawn. Just broad enough to justify, with no formal legal process, no second opinion, no public accounting and in apparent violation of exisitng law, the killing of an American citizen.

The Times noted in a subsequent editorial that the Obama Administration has refused to release the legal analysis or even admit on the record that the analysis exists. There is no information available on how the administration chose the target or why.

OK, I hear you: this guy Awlaki was holed up on Yemen plotting attacks against the United States. Apparently he couldn’t be captured. What are supposed to do – let him wander around presenting a danger to us?

Legitimate questions all that the administration should be answering, but as we prepare to grant the benefit of the doubt to the president in this dangerous times, consider this one chilling line from the Timeseditorial: “The decision to kill Mr. Awlaki was made entirely within the executive branch. The memo was not shared with Congress, nor did any independent judge or panel of judges pass judgment. The administration set aside Mr. Awlaki’s rights to due process.”

It’s been said that hard cases make bad law and this is a hard case. Awlaki was a bad guy and maybe the country is safer without him. Still the plain and honored language of the Fifth Amendment to the United States Constitution helps define the American system of justice from so many others in the world that we rightly and regularly condemn. Amanda Knox’s experience in Italy comes immediately to mind. America, it is said, is a nation of laws. The rule of law matters. The Constitution matters.

Just to refresh your memory, the 5th says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.’

Due process of law is a fundamental tenant of American jurisprudence. It can’t under any circumstances be simply dismissed,  and secretly so, by two lawyers writing a memo somewhere in the Executive Branch.

Gerald Ford was the first American president to explicitly say our country would not engage in assassinations. American involvement – make that leadership of – efforts to kill Fidel Castro, in part, prompted Ford’s Executive Order. The logic is pretty simple. We target someone for death and the bad guy’s friends are likely to retaliate, which is, of course, exactly what is being threatened.

Without some mechanism, outside the hands of a secret group inside the Executive Branch of the federal government, able to judge the wisdom, necessity and legality of such drastic action, we are left to entirely take the word of the president.

The framers wrote the founding document knowing that the sainted George Washington would be atop the Executive Branch of the federal government. They wrote in protections like the Fifth Amendment precisely because the American system was built on laws, not men. Even Washington’s rectitude wasn’t adequate for those founders to give too much power to any one man.

Congress is, at least in theory, a co-equal branch and should have been since the 1930’s pushing back against more and more power in the hands of the president – every president. Does anyone there care to even ask the question: can a President of the United States really order a killing without so much as even asking around?

Every expansion of presidential power beyond what the Constitution provides is another foot down on the slippery slope. That slope is steeper by the day.



Leaking Oil and Credibility – Part II

obamaThe President as Crisis Manager

As a result of the BP oil spill in the Gulf, Barack Obama has learned – let’s hope he’s learned – some lessons about leadership in a crisis.

Some of the criticism leveled at the President, such as the BP mess being “Obama’s Katrina,” seem a little off base and the media driven storyline about Obama needing to show a little temper was mostly just a made for cable controversy. Still the facts are that with the oil company clearly not acting quickly enough and ultimately not having a real plan to contain the damage from the big blow out, residents of the Gulf region and the county looked to Obama to lead. His record is, in my view, at best spotty.

Many Americans embraced the Sarah Palin “drill, baby, drill” notion during the last campaign, but at the same time those same folks are no fans of Big Oil. In a new USA Today poll, 71% of those surveyed say Obama should get tougher with BP. His speech from the Oval Office tonight seems likely to take a harder line, but that’s only part of the lesson from this crisis and its comes late in the crisis management game.

Most executives learn – sooner or later – that the most difficult thing to uncover in a crisis is quality information upon which to act. It became pretty clear pretty fast that the information deficit in the Gulf would be a major problem. While BP tried one Rube Goldberg fix after another, the President and his people came late to the realization that BP was making it up as they went. In short, there was little reliable information about the best strategy to contain the growing spill and all the ideas seemed to be coming from the less than credible company that caused the crisis in the first place. Everyone involved also seemed to lack good intelligence on what the moving oil slick would likely mean to the Gulf coast.

Obama needed better information earlier and faster. Lesson number one.

Most executives also learn – eventually – that you can’t delegate responsibility when you’re the top guy. For days after the explosion on the Deepwater Horizon, Interior Secretary Ken Salazar was the administration’s face on the scene. Nothing against Salazar, but we all know where the buck stops. The President and his advisers should have realized that this was his crisis to manage, and manage aggressively almost from day one.

So, lesson number two. Obama should have taken charge much sooner and more forcefully. I think, and again hindsight is easy, that he should have insisted on face-to-face meetings with BP leadership in the Gulf and in DC. Realizing that the government doesn’t possess the expertise to plug a blown out oil well a mile deep in the ocean, he should have raided major oil companies, universities, the national labs, private industry and foreign sources for the best available talent to manage the containment. I think the most profound criticism to level at the President is his failure to take the containment job away from BP early on. If he can fire the CEO of GM, he certainly has the moral authority to take over in this case. He should have.

Who is to say whether better solutions would have been forthcoming, but such a move would have clearly signalled that he was in charge and not relying on the company to address its own obvious failures.

Another lesson: when all is said and done this disaster will largely be about who pays and how much. Apparently the President is now insisting on a BP escrow account to be available to finance the clean up, pay claims, etc. Better late than never, but still very late. Money won’t fix all that will need to be fixed in the Gulf, but money will certainly do until something better comes along. Obama could have displayed real toughness by both taking control of the containment effort and forcing BP to put real money on the table a lot earlier.

Finally, I expect the President has learned another valuable, but painful lesson from this long ordeal: its hard to mobilize the government to effectively deal with a crisis that is both big and unpredictable. Katrina not withstanding, we generally have pretty effective national response to natural disasters – flood, hurricanes and the like – we struggle when the crisis is outside the usual box. Hard as it is to believe, federal agencies – state agencies for that matter – are rarely or routinely called upon to work together and coordinate an overall approach to a problem. They tend to be isolated, siloed organizations where even top managers, in say, the Transportation Department don’t know their counterparts over at Interior. It is a problem endemic to any large organization, but it can be particularly acute in government.

As John Kennedy famously said when the right hand of his government didn’t know what the left hand was doing – “there is always some dumb SOB who doesn’t get the word.”

That’s why any President – or Governor or CEO – needs to be able to reach down in the bureaucracy and crack heads in the interest of action. Action in government, where most folks practice survival skills full time and are horribly risk averse, even during a crisis, requires aggressive, demanding leadership.

A final lesson from history. When the great (and flawed) Winston Churchill took over as British Prime Minister in the dark days of 1940, he insisted, against almost unanimous advice, on reserving to himself the portfolio as Defense Minister as well as Prime Minister. Critics said it was too much for any one man, particularly one pushing 70 years of age. Winston was told he needed to delegate the day-to-day running of the war and focus instead on the big picture strategy.

But Churchill, who knew a few things about human nature and leadership, understood that he would get the credit or blame for every military success or failure regardless of whether some other figure had the official title. Churchill insisted on being in the middle of every decision, pushing, prodding, selecting personnel and reading reports and issuing demanding memos. He craved the responsibility and, while he certainly didn’t get every call correct, he inspired great confidence and dogged determination just when both were needed the most.

In a crisis – the Battle of Britain or a oil spill in the Gulf – the top guy is the responsible party. Might as well make the most of it, a lesson President Obama now seems to be embracing, finally.

Leaking Oil and Credibility

oil+spillLessons to Learn

I’ve been asked a dozen times since the BP oil spill developed in the Gulf of Mexico what I would have advised the company’s executives as they face what may prove to be – or already is – a truly catastrophic environmental disaster. Alas, BP hasn’t called, but of course I have some ideas about what they might have done differently.

The general consensus has now developed that BP has irreversibly lost the PR battle, with some now comparing the lackluster response to Exxon’s handling of the Alaska spill years ago, and has yet to win the battle to stop the oil flow.

Could it have been different? Hard to tell, but maybe.

Rule number one of a real crisis, I think, is simply that it is almost impossible for any entity – corporate, governmental, etc. – to move fast enough. The first hours in responding to a disaster, particularly such a public disaster, almost always establish the public perception of how well the crisis is being handled. The first hours and days of the Gulf spill now seem like a blur. What was happening, who was in charge, was this really bad, could it be quickly contained? Instinctively, I think, most people watched the television pictures of the burning oil rig and concluded that this would be a real mess. Meanwhile, BP and the government seemed slow out of the blocks.

So, BP – and the government – failed the first test of crisis. They couldn’t or wouldn’t move fast enough. In the early hours of a major crisis, action is always better than talk.

What might BP have done differently? I have five suggestions for what could have been done and one guess about why none of it happened.

First, how might it have changed public perception had BP’s CEO, the much-beleaguered Tony Hayward, immediately gone on television – from the Gulf – and announced that he was asking the state of Louisiana to establish an account, that the state would control, in which BP would immediately deposit – pick the number – $250 million as a down payment on the clean up? Real cash, not a promise to pay all “legitmate claims” might have made a powerful statement that the big oil company was really serious.

Additionally, BP might have announced that it was immediately suspending al offshore drilling every where in the world while it conducted, with the help of outside experts, its own assessment of safety and emergency response.

Hayward could also have humbly asked for an immediate meeting – in the Gulf – with President Obama, the Secretary of the Interior, the top Coast Guard officials, the heads of Exxon-Mobil, Royal Dutch Shell and the governors of the Gulf states. The purpose of the meeting: establish an immediate crisis response team, seek the best possible industry help to determine the best way to stop the leak and contain the oil and, most importantly, get all the responsible folks in the same room and on the same page.

It might have also helped BP’s credibility from the first moment had Hayward admitted what almost all the rest of us suspected – the company did not know the extent of the leak, did not fully understand the cause, didn’t have a sure fire solution to contain the oil and fully expected the worst with regard to the environmental consequences. It is remarkable what a humble admission of “we don’t know and we need help” will do to retain credibility and, frankly, buy time to get organized and really figure out what to do.

Hayward should also have become the sole face of the company’s response. He should have camped out in the Gulf, constantly meeting with local officials, business people, environmentalists and fishermen, and working the media. He should have aggressively engaged the President and his administration rather than appear to be a reluctant participant in the whole process by suggesting he wanted “his life back.”

Here is a bet as to why BP seemed to do nothing in the first days except to say it took responsibility while seeming to downplay what was really happening. I’m betting the company’s lawyers took charge of the response and the overriding objective became to contain the financial and legal liability for BP and its shareholders. I can almost hear a smart, articulate attorney telling the CEO that he must do nothing that would eventually be used to shape the inevitable legal cases that will drive BP’s liability.

Don’t get me wrong, the lawyers must be in the room when a crisis is unfolding, but in a career of helping manage various kinds of crisis – nothing admittedly this big – I have concluded that the “right thing to do” is almost immediately in conflict with what constitutes the best legal strategy for the entity responsible for the crisis. It’s hard for any CEO – even the most well intentioned – to ignore the legal advice he will receive, but doing the right thing – and fast – is almost always the better long-term option than to craft a response that is driven largely by legal considerations.

Now, as the President heads back to the Gulf today, the New York Times reports that he will demand a BP escrow account, summon the company’s executives to the White House and generally ramp up the public pressure on the company. Some might argue it’s a little late.

It is easy to second guess while looking in the rear view mirror, but I think, had BP acted faster and more decisively by putting real money on the table and seeking help and buy in from the industry and government, it could have taken charge of the unfolding narrative in the first hours and saved itself some major and long-lasting PR heartburn.

Tomorrow, some thoughts on lessons for the President in the government’s response to the spill.