The role of the media, law, and national resolve in the war on terror.

• Author: Hardaway, Robert

1. INTRODUCTION

   In the aftermath of the terrorist attacks of September 11, 2001, the government of the United States took unprecedented steps to protect American lives and property. (1) Measures imposed included tightened security at nuclear power plants, (2) airports, (3) and numerous other government and private installations around the United States. (4)

   Debate over an appropriate U.S. response centered on whether there was proof of a foreign state's complicity in the attacks. On September 15, 2001, a New York Times/CBS News poll revealed that eighty-five percent of Americans would support military action against whoever was responsible for the attacks, while only six percent would oppose any military retaliation. (5) To a large degree, therefore, the debate over U.S. policy in Iraq may be reduced to the simple question of whether Iraq was in fact involved in the 9/11 attacks.

   While official investigations were immediately begun, it was not until May 7, 2003, that a federal court, considering all the evidence and applying the strict Federal Rules of Evidence (F.R.E.), made specific findings that Iraq, Saddam Hussein, and al Qaeda were jointly responsible for the 9/11 attacks. (6) In Smith v. Islamic Emirate of Afghanistan, (7) families of 9/11 victims brought a tort case against Hussein and the Republic of Iraq pursuant to the Antiterrorism Act of 1991, which specifically provides that victims of terrorism may sue for damages in an appropriate federal district court. (8)

   Since neither Iraq nor Hussein appeared in court to defend the allegations and thus, failed to provide discovery materials required, the plaintiffs argued that a lower standard of evidentiary proof should be imposed in establishing Iraq's complicity in 9/11. (9) However, the Court rejected this argument, citing 28 U.S.C. 1608(e), which states that no judgment by default may be entered against a foreign state unless the "claimant establishes his claim or fight to relief by evidence satisfactory to the court." (10)

   In other words, the court insisted that, even though neither Iraq nor Hussein appeared, the plaintiffs would nevertheless have to submit evidence sufficient to meet the higher burden of proof required by the statute despite having been disadvantaged by lack of access to discovery. (11) Even more disadvantageous to the plaintiffs, the court ruled that strict rules of evidence, including the very technical hearsay rules imposed by the F.R.E, would have to be strictly complied with in presenting the plaintiff's case. (12)

   At the evidentiary hearing, Robert Woolsey, CIA Director under President Clinton, testified that according to information available, "I believe it definitely more likely than not that some degree of common effort in the sense of aiding and abetting or conspiracy was involved here between Iraq and al Qaeda." (13)

   Expert on Iraq and a former Clinton advisor, Dr. Laurie Mylroie of Harvard, after examining the evidence concluded that, "Iraq ... provide[d] support and resources for the September 11 attacks ... al Qaeda acts as a front for Iraqi intelligence. Al Qaeda provides the ideology, the foot soldiers, and the cover ... [a]nd Iraq provides the direction, the training, and the expertise." (14)

   In a previous study, Dr. Mylroie noted that Iraq had made little effort to hide its intent to attack the United States; (15) she cited the following threats published by Iraq in its official news organ prior to the events of 9/11:

   1. Does the United States realize the meaning of every Iraqi becoming a missile that can cross countries and cities. (16)

   2. The crime of annihilating the Iraqis will trigger crises whose nature and consequences are known only to God. (17)

   3. When one realizes that death is one's inexorable fate, there remains nothing to deter one from taking the most risky steps to influence the course of events. (18)

   4. When peoples reach the verge of collective death, they will be able to spread death to all. (19)

   Similar direct threats of violence against the United States were published by Iraq on an almost daily basis. (20)

   However, the court declared certain items of otherwise persuasive evidence of Iraqi complicity in the 9/11 inadmissible on narrow technical grounds under the F.R.E. (21) Thus, the court did not consider a compendium of evidence presented, including a litany of contacts between al Qaeda and Iraqi intelligence, as well as the testimony of defectors concerning Hussein's training camp for al Qaeda terrorists at Salman Pak in Iraq (which included among other props, a full-scale mock up of an airliner with no runway nearby). (22) Other evidence presented, but excluded by the court, included an assertion in an official Iraqi newspaper in July 2001, just two months before the 9/11 attacks, that "bin Laden will try to bomb the Pentagon after he destroys the White House." (23) It is widely believed that the intended target of the hijacked airliner which crashed in Pennsylvania was the White House. (24)

   Even after throwing out this mass of evidence, the court concluded on the basis of the remaining evidence, and pursuant to the legal standard of "evidence satisfactory to the court," that "Iraq provided material support to bin Laden and al Qaeda." (25) A judgment in the amount of sixty million dollars was entered against Hussein and Iraq for its involvement in the 9/11 attacks. (26)

   One interesting question is why there has been so little media coverage of this very important federal case. One possible, though perhaps unduly cynical, explanation is that those who seek peace at any price are not eager for the public to become aware of a specific U.S. federal court finding that Iraq was involved in 9/11 for fear that it might strengthen national resolve to support U.S. policy in Iraq and to enforce U.N. resolutions.

   Although President Bush's reticence to rely on court precedent and evidence of Iraq's complicity has been severely criticized, (27) it is perhaps understandable in light of virulent anti-war skepticism, such as in France where a best-selling book asserts that no airliner ever attacked the Pentagon and that Bush and the Jews masterminded 9/11. (28) No amount of evidence is ever likely to convince those who oppose the war on terror, especially when vested business interests may be at stake.

   On October 26, 2001, Congress overwhelmingly passed, and the President signed, an act entitled, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (sometimes misleadingly referred to as "The Patriot Act"). (29) In addition to condemning discrimination against Arab and Muslim Americans, (30) providing for victims of terrorism, (31) and providing for the sharing of information between government agencies (i.e., establishing an infrastructure for "connecting the dots"), (32) this Act extended current constitutionally tested procedures for investigating organized crime to investigations of terrorist activity. (33)

   In 2002, the U.S. Congress overwhelmingly authorized the use of military force against Iraq, (34) and on November 8, 2002, a unanimous U.N. Security Council adopted Resolution 1441, (35) which found that Iraq had not "provided an accurate, full, final, and complete disclosure, as required by Resolution 687 (1991), of all aspects of its programmes to develop weapons of mass destruction," (36) and held further that Iraq "has been and remains in material breach of its obligations under relevant resolutions." (37) Finally, a unanimous Security Council authorized "serious consequences as a result of its continued violations of its obligations." (38)

   In light of later claims by some journalists and pundits that the U.S. Congress and the President went to war in Iraq based on faulty intelligence that Iraq had weapons of mass destruction, (39) it is useful to note that a unanimous Security Council, including Syria, France, Germany, Russia, and China made a specific finding that Iraq was already in possession of weapons of mass destruction (having been found in previous U.N. inspections). (40) Thus, the imposition of "serious consequences" by Syria et al., against Iraq was authorized not on the basis of a possible discovery of weapons at some future time, but rather on the basis that Iraq had not accounted for weapons previously discovered by U.N. inspectors. In any case, U.N. inspector David Kay has since reported his discovery in Iraq of "dozens of WMD-related program activities ... stains of organisms ... used to produce biological agents ... a clandestine network of laboratories ... that contained (chemical-biological weapons) research ... and unmanned aerial vehicles ... in violation of UN resolutions." (41)

   After the unanimous adoption of Resolution 1441, the only question remaining was the import of the words "serious consequences." Not surprisingly, an overwhelming majority of European leaders, including those in Italy, Spain, Great Britain, and a virtually unanimous block of Eastern European countries, interpreted this phrase as including military action, (42) and supported the U.S. effort to enforce U.N. Resolution 1441 by the use of military force. In the end, the only significant European holdouts in supporting the U.S. effort to enforce Resolution 1441 were France, Germany, and Belgium. (43)

   Indeed, in light of the fact that severe economic sanctions had already been imposed on Iraq for a number of years, it is difficult to imagine any reasonable interpretation of the U.N. mandate to impose "serious consequences," other than actual enforcement by armed force.

   The U.N. mandate authorizing serious consequences was reinforced by a previous U.N. Resolution, which had acknowledged that the 9/11 terrorist attacks on the World Trade Center were a "threat to international peace and security," and specifically "recognize(d)" the right of self-defense and a "readiness to take all necessary steps to respond to the terrorist attacks." (44)...