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Soon after the September 11 attacks in 2001, the United States captured hundreds of suspected al-Qaeda terrorists in Afghanistan and around the world. By the following January the first of these prisoners arrived at the U.S. military?s prison camp in Guantanamo Bay, Cuba, where they were subject to President George W. Bush?s executive order authorizing their trial by military commissions. Jess Bravin, the Wall Street Journal?s Supreme Court correspondent, was there within days of the prison?s opening, and has ...
Soon after the September 11 attacks in 2001, the United States captured hundreds of suspected al-Qaeda terrorists in Afghanistan and around the world. By the following January the first of these prisoners arrived at the U.S. military’s prison camp in Guantanamo Bay, Cuba, where they were subject to President George W. Bush’s executive order authorizing their trial by military commissions. Jess Bravin, the Wall Street Journal’s Supreme Court correspondent, was there within days of the prison’s opening, and has continued ever since to cover the U.S. effort to create a parallel justice system for enemy aliens. A maze of legal, political, and moral issues has stood in the way of justice—issues often raised by military prosecutors who found themselves torn between duty to the chain of command and their commitment to fundamental American values.
While much has been written about Guantanamo and brutal detention practices following 9/11, Bravin is the first to go inside the Pentagon’s prosecution team to expose the real-world legal consequences of those policies. Bravin describes cases undermined by inadmissible evidence obtained through torture, clashes between military lawyers and administration appointees, and political interference in criminal prosecutions that would be shocking within the traditional civilian and military justice systems. With the Obama administration planning to try the alleged 9/11 conspirators at Guantanamo—and vindicate the legal experiment the Bush administration could barely get off the ground—The Terror Courts could not be more timely.
Stuart Couch had been waiting nearly two years to start this job. He had been waiting since September 11, 2001.
Couch, a lieutenant colonel in the United States Marine Corps, was a military prosecutor. When President George W. Bush decreed that the 9/11 perpetrators would face trial by military commission, a form of martial justice last used against German and Japanese war criminals following World War II, Couch had volunteered for the mission. It was a matter of duty, not only to his country but to a fellow Marine.
Couch once had been a pilot, flying KC-130s out of the Marine Corps Air Station at Cherry Point, North Carolina. So had Michael Horrocks. While Couch moved on to law school, Horrocks—"Rocks" to his buddies in Marine Aerial Refueler Transport Squadron 252—kept flying after leaving the Marines.
On 9/11, Rocks was the copilot on United Airlines Flight 175. It struck the South Tower at 9:03:11 a.m. Couch had watched that footage a dozen times—or was it a thousand? As a pilot, a prosecutor, a Marine, Couch, a deeply religious man, believed he was called to seek justice for this unspeakable crime.
At the Pentagon, Couch was greeted by a Basic School classmate from Quantico, Kurt Brubaker, a fellow lieutenant colonel who had joined the prosecution staff nine months earlier. While Couch was preparing his move to Washington from Camp Lejeune, Brubaker had said that things were moving quickly at OMC-P, Pentagon shorthand for the prosecution unit at the Office of Military Commissions. By the time Couch arrived, Brubaker suggested, they likely would be in trial at Guantanamo Bay.
Not to worry, he had added. They were saving the best cases for Couch.
* * *
Voluble if slow-talking, Vernon Stuart Couch looked tired, perhaps older than his thirty-eight years, but his lidded face belied a churning, intensely reflective personality.
To avoid confusion with the passel of Vernons in his sprawling Southern family, Couch answered to his middle name and, by the time he reached college, to its first syllable alone.
When Couch spoke, the accent immediately betrayed his North Carolina origins. Despite missions on four continents, he never truly felt at home beyond the Tar Heel State. The Marine Corps, with installations at Camp Lejeune, Cherry Point, and New River, felt at home in North Carolina, too.
The youngest of three boys, Stuart Couch grew up in Asheboro, a struggling Piedmont town which, when not confused for the larger and livelier college center of Asheville, was best known for its furniture and hosiery industries. The former reached its peak after 1961, when President John F. Kennedy was photographed using an Asheboro-produced rocking chair in the Oval Office. The P. & P. Chair Company promptly renamed its flagship product the Kennedy Rocker, and it became a favorite for those, like President Kennedy, seeking relief from sciatica. Otherwise, Asheboro took pride in being North Carolina's largest dry jurisdiction, a distinction it held through 2008, when voters reluctantly authorized the sale of beer and wine to help flagging downtown restaurants compete with their liquor-selling rivals outside the city limits.
Stuart adored his mother, Kay, a Southern lady who nonetheless reflected the new thinking that reached even central North Carolina in the 1970s. Pulling together an alliance of white housewives and churchgoing blacks—two constituencies regularly ignored by the local establishment—she won a couple of terms on the city council, until the good ole boys regrouped to knock her off.
Stuart idolized men of courage, like the Antarctic explorer Sir Ernest Shackleton and James Stockdale, the naval aviator taken prisoner in North Vietnam. The brutal abuse Stockdale suffered made Stuart burn with anger. Like Stockdale, like his own father, Buck, a local dentist, Stuart wanted to be a pilot.
More personal examples of military heroism also inspired him, from a great-great-grandfather who served in the Confederate cavalry under J. E. B. Stuart to his dad, who had served as a corpsman to a Marine Reserve unit, and his uncle, Bob Biddle, a Marine officer and Vietnam veteran.
After Vietnam, Uncle Bob commanded a unit at the Marine Barracks in Washington. Known as Eighth and I, after its location on Capitol Hill, the installation was the Corps's ceremonial home, where the color guard, the President's Own Marine Band, and the Body Bearer Section were based. The 1970s marked a trough for the US military's reputation, and many kids would laugh at regimented performances like those at Eighth and I. But visiting his uncle, Stuart Couch was thrilled by the crisply uniformed men who executed precision maneuvers on the parade ground. Back home, Stuart already was on track to become an Eagle Scout. He resolved to be a Marine, too.
As a teenager, Stuart did odd jobs at an Asheboro hosiery factory but devoted enough time to plays and other activities to win his high school's nomination to the Governor's School of North Carolina, a summer honors program in Winston-Salem. Nominated on the performing arts track, Couch had to present a monologue for the admissions committee. He selected the opening speech from his favorite movie, Patton. The 1970 picture begins with the bemedaled protagonist declaiming his martial philosophy, an enormous American flag behind him.
"No bastard ever won a war by dying for his country," said seventeen-year-old Stuart, reciting lines made famous by George C. Scott. "He won it by making the other poor dumb bastard die for his country."
The teachers conducting the audition thanked Stuart for coming. Weeks later, he got a rejection letter. "Liberals," he figured. Instead, he signed up for an evangelical summer camp, away from home in the Colorado Rockies.
Years later, Couch would say he met two people during that summer: Jesus Christ. And Kimberly Wilder.
She was another teen from Asheboro, and Stuart Couch immediately developed a crush on her. After a hike to a Rocky mountaintop, she seemed to like him, too, he thought. Things between them fizzled out when they got home, but Stuart ended up spending time at the Wilders' house anyway. His own parents' marriage was breaking up and things were tense at home; Kim's father had been Stuart's scoutmaster, and the Wilders welcomed him, stepping up as almost a second family.
Stuart pursued Kim again after they both got to college—she was a nursing student at the University of North Carolina, just down the road from Duke, where Stuart, still fixed on becoming a Marine, had joined the Naval ROTC.
Couch was an "ROTC Nazi," as the nickname went, and his performance showed, winning him promotion to the program's top slot, battalion commander. It was at Duke that Couch first focused on Afghanistan, studying under the Afghanistan scholar Louis Dupree and, in his junior-year paper, comparing the Soviet invasion to America's experience in Vietnam. Still, Couch managed his share of Southern frat boy pleasures. Parties, Thursday night kegs, and Friday morning hangovers marked his time in Durham.
"Some people graduated summa cum laude, some people magna cum laude," he joked, pronouncing it law-dee. "I graduated, thank the good lawdy."
Couch was a regular churchgoer, but that was social convention in towns like Asheboro, and he considered himself only nominally religious. Kim Wilder and her family, in contrast, put their evangelical faith first, and Couch, aiming to ingratiate himself with the pretty blonde, followed along. Over time, the strength and steadiness Kim drew from her faith took root in Couch, too.
Years later, he felt this change when Kim took him to the church her grandparents once attended, in Morehead City, near North Carolina's Outer Banks. The minister offered jokes and down-home wisdom, linking scripture to real life. "He had a Resurrection party on Easter Sunday, with two kegs up on his back porch," Couch said. This was religion that spoke to him.
A DAY BEFORE THE DUKE graduation, in May 1987, Couch was commissioned a second lieutenant in the United States Marine Corps. He learned to pilot the KC-130, the Marine version of the Hercules cargo plane, from Cherry Point. Knowing Spanish, he hauled equipment for counternarcotics operations in Latin America. But he missed the career-making conflict of his generation, the first Persian Gulf War. When Saddam Hussein invaded Kuwait in 1991, Couch was in a five-week course training to be a squadron legal ocer—a nonlawyer who advises the commander on basic legal questions. While more senior comrades were flying combat missions over Kuwait, Couch was stuck at Cherry Point, vying for flight time with other new pilots on the broken-down aircraft left behind. He was able to wrangle just one mission during Operation Desert Storm: a forty-eight-hour trip to retrieve materiel after Saddam abandoned Kuwait.
With the military drawdown that followed Desert Storm, flight hours were cut and Couch found himself spending more time at the base's legal center than in the cockpit. A colonel urged Couch to consider law school. There was a famous precedent for that path: in the 1950s, before getting his law degree, F. Lee Bailey had flown fighter planes out of Cherry Point.
Couch applied to five schools, including North Carolina's top programs, at Duke and Chapel Hill. All rejected him. The only place he got in was Regent University in Virginia, an evangelical law school Pat Robertson opened in 1986.
Just as Couch enrolled, conflict erupted over Robertson's dismissal of the founding dean. With Regent's accreditation uncertain, Couch tried to transfer to Campbell University, a small Baptist school in Buies Creek, North Carolina. Campbell had rejected Couch as a first-year applicant, but a personal appeal to the assistant dean won him a transfer admission. "You won't regret this decision," Couch promised.
Much as he wanted to become a lawyer, however, Couch hated law school. Without flight time, he took a pay cut to attend, and his studies siphoned attention from Kim, now his wife of nearly nine years and their two-year-old son, Stuart. But he persevered, was graduated in 1996, and returned to Cherry Point as a judge advocate—a JAG—the military term for its uniformed lawyers, assigned as a prosecutor.
It was a typical military caseload. Couch prosecuted Marines for brawling at bars, for falsifying travel claims, for rape. Then came Operation Longfuse, an investigation into a ring of Marines selling ordnance on the black market. Couch thought it significant that the scheme came to light when one of the conspirators confessed to his pastor, who told him that while he had God's forgiveness as a Christian, he also had a moral obligation to "make things right."
Barely a year on the job, Couch received the biggest case on the Corps's docket.
In February 1998, a Marine pilot, about to end his assignment in Aviano, Italy, took his EA-6B Prowler out for some aeronautical antics over the Alps. Flying far below regulation altitudes as his navigator shot a souvenir video, the pilot clipped a ski gondola, sending it crashing to the ground and killing all twenty European tourists aboard.
Couch was the rare prosecutor with aviator's wings, and he shared a home base, Cherry Point, with the Prowler. Newly promoted to major, he took the prosecution team's third chair.
Couch's job included serving as US government liaison to the victims' families. That made him a target for their hurt and anger. Yet instead of resenting their outbursts, Couch absorbed their sorrow and came to share it, even to view the survivors as an extended family of his own. Over the fourteen-month Aviano assignment, he spent so much time with the families that a superior complained about Couch's priorities.
But the case ended in acquittal. The chief investigator, Mark Fallon of the Naval Criminal Investigative Service, reached Aviano a day after the accident to find that key evidence—the navigator's videotape—had been destroyed. The Marine jury found the pilot, Captain Richard Ashby, not guilty. In the courtroom, Couch turned to the victims' families and mouthed the words: "I'm sorry."
Mark Fallon was no happier. He told himself it wasn't the prosecution team's fault. "It's difficult for Marines to convict Marines for killing foreigners," he said. Couch agreed. He called it "jury nullification." Three of the eight jurors were pilots themselves, and some of the junior officers obviously sympathized more with the air crew than the victims. Their loyalty to each other and to the organization overrode their duty to deliver a just verdict, Couch thought.
The prosecution tried to salvage a shred of victory by convicting Ashby and his navigator, Captain Joseph Schweitzer, of obstruction of justice. Schweitzer admitted tossing the tape into a bonfire, made a plea bargain, and was discharged from the Corps. Ashby pleaded not guilty.
Couch overprepared for trial. He retraced the defendants' backgrounds, even examining Schweitzer's course load at the Naval Academy. In a philosophy class, Couch found a passage from the stoic philosopher Epictetus that evoked the air crew's unethical choice.
"When you do anything from a clear judgment that it ought to be done, never shun the being seen to do it, even though the world should make a wrong supposition about it; for, if you don't act right, shun the action itself; but, if you do, why are you afraid of those who censure you wrongly?"
Or, as Couch put it in his native "North Carolinese": "Don't be 'fraid to be seen doin' whatcher doin', 'cause if you're doin' whatcher s'possed to be doin', ya shouldn't have a problem with it." He planned to introduce the quotation to shame Schweitzer at trial but ultimately decided it was too esoteric. Nonetheless, the maxim stuck with Couch; years later, at the Office of Military Commissions, he taped it above his desk.
At his second trial, Ashby was convicted. The charges carried a maximum sentence of ten years. Couch asked only for two. He knew a Marine jury wouldn't consider anything harsher for one of its own.
"Captain Ashby needs to feel the sting for what he has done," Couch implored the court-martial. "He doesn't deserve to wear a uniform." The jury returned with six months' confinement and dismissal from the Marine Corps. Couch was disgusted.
Most on the prosecution team swallowed their disappointment and moved on. Couch never quite could. He remained in touch with the victims' families, and in 2008 traveled at his own expense to Aviano for a commemoration on the accident's tenth anniversary.
DEMORALIZED BY THE AVIANO case, Couch wanted out of the military justice system. He left active duty for a local law firm, handling personal injury, medical malpractice, and similar civil cases.
Yet the tedious cycles of civil litigation only deepened his malaise. Criminal justice promised a greater redemptive potential. After fourteen months in private practice, Couch found a job as an assistant district attorney in Beaufort, across the Newport River from Morehead City. It was not a high crime district. He prosecuted drunken beachgoers, barroom brawlers, and, on occasion, a shrimp boat captain who clocked a fisheries inspector.
* * *
Things seemed to be looking up for America as 2001 began, Couch thought. George W. Bush would become president.
In his inaugural address, Bush acknowledged that Bill Clinton left him a nation at peace, a federal budget in surplus. It was, Bush said, "a time of blessing." He promised not to squander this inheritance but to confront the nation's "problems instead of passing them on to future generations." Without specifying his plans, he made a pledge: "I will bring the values of our history to the care of our times."
Couch recognized the religious imagery that salted Bush's speech, phrases evoking the faith he and the new president shared.
"The American story," Bush said, was "a story of flawed and fallible people, united across the generations by grand and enduring ideals.
"We are not this story's author, who fills time and eternity with His purpose," the president continued. "Never tiring, never yielding, never finishing, we renew that purpose today, to make our country more just and generous, to arm the dignity of our lives and every life."
The dignity of every life. Couch choked up. That was a concept he armed each Sunday in church.
The next evening, however, Mike Wallace brought Couch back to earth.
"It's been a bad week for the United States Marine Corps," the CBS newsman said, opening a 60 Minutes report on an accident-prone aircraft called the MV-22 Osprey.
The brass loved the peculiar-looking, tilt-rotor plane, as did the congressman whose district produced it. Marines who flew the Osprey were less enthusiastic. The plane was chronically unreliable. In 2000, twenty-three Marines were killed in Osprey crashes. Couch knew one of the pilots who died.
Excerpted from The Terror Courts by JESS BRAVIN Copyright © 2013 by Jess Bravin. Excerpted by permission of Yale UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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