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Chapter 1
“Imagine the Liability!”
“Imagine the liability!”
We were squinting in a new dawn’s first glimmers. A terrifying new dawn. Law enforcement’s visionaries—and, yes, there really were a few—could not yet see how profoundly things had changed, how the very notion of law enforcement would have to change. Already, though, there was reason enough to blanch at the insouciant idiocy of that reedy sigh of relief.
Imagine the liability! The words spilled from the lips of the FBI’s top foreign counterintelligence agent in New York City. Fifteen years later, the plea is as jarring as when first I heard it. For all the sober resolutions about new enforcement “paradigms,” it endures: endogenous, invariant, maybe immutable. By July 1993, I’d already been in government for well over a decade, so the ethos was far from unknown to me. Still, the thud I was sure I heard had to be the sound of my jaw striking the war room floor.
War room. There was an irony. There was a war on, alright. But not in that room. The war was right outside the window that looked out on the frenetic majesty of lower Manhattan. It may be impossible to clap with one hand, but a war can be fought by one side. Radical Islam was proving it. Inside the “war room,” however, there was no war. There was legal strategizing.
Just a few blocks away, not five months before, the most brazen attack against the American homeland since Pearl Harbor had taken place, the bombing of the World Trade Center. Hard on it had followed an even more ambitious—though unsuccessful—mass-murder plot against other New York City landmarks. Yet the vigorous government counterattack being planned in that room involved no military personnel, no intelligence officers, no maps or grids or pins.
We were writing an indictment.
In 1993, the United States Department of Justice Department was not merely the point of America’s counterterrorist spear. It was the spear. Period. The enemy was at war. Jihadists had made that exquisitely clear, in word as well as deed. Our response was to call in not the marines, but the prosecutors. And here in the war room, by the battle’s frontline, I would be the field commander.
My chief qualification? Why, I was a lawyer, of course.
It had to be that way, at least for a time. We’d been struck a stunning blow. But, unlike Pearl Harbor, we didn’t yet know exactly where it had come from, or why. Well, better to say, “We didn’t yet know exactly what we knew,” because, as it turned out, we had reason to know plenty. In any event, it is now patent that the bombing and its aftermath marked a liminal moment in American history: An offensive executed by sub-sovereign, transnational enemies, embedded and operating not only from inaccessible safe-havens but also within friendly nations. This was to be the era of asymmetric warfare, fueled by a chiliastic ideology, barbarously capitalizing on civilization’s once-settled assumptions about the limits of deviancy.
The war was on, but we didn’t see it yet. It was still dawn and we were playing catch-up. That we couldn’t see clearly was a problem easily rectified by information. That we wouldn’t see even upon informing ourselves—that was a problem within us. One that hasn’t changed. The enemy’s declaration of war would be complemented by a campaign of murder and mayhem, culminating in the same place, eight years later, when this first strike would be dwarfed. In the interim, the United States would respond with law. And so, while the enemy prosecuted the war, we prosecuted the enemy—er, the defendants.
No surprise there. For government, “Terror” was the new “Drugs,” which themselves had been the new “Poverty”—the trendy nuisance sure to register at the ballot box. There was no stomach and, it was supposed back then, no cause, to wage a real war. When the public is roused, though, high officials must always be seen as doing something! So, urgently flipping to page one of the High Official Playbook, they declared “war” and put the lawyers in charge. In terms of actual national commitment, such wars translate into a somewhat higher priority than the dogged pursuit of tax cheats and corporate fraudsters. To be sure, jihad differs from Wars on Drugs, Poverty, Disease, Incivility, Intolerance, Greenhouse Gases, or whatever the next Flavor of the Month may be. Jihad, after all, actually does involve warfare: real bombs, real victims, and real death. But the distinction is lost when the side that declares only rhetorical war is exclusively on the receiving end of the blows and reacts by installing its lawyers at the helm.
As a class, baby-boom attorneys know nothing of war. Prosecutors included. The vast majority (I am no exception) has never donned the uniform. In our formative years, unparalleled American might provided the luxury of paying scant mind to matters martial. Except, that is, in those airy precincts of academe that churn out our swelling nomiocracy—there, the rich variety of scholarly nuance runs from barely concealed contempt to outright revulsion.
Yet lawyers, and most of all trial lawyers, are peerlessly grandiose when it comes to slaying such dragons as there are. The witness who must be impeached—destroyed!—so that the breach of some humdrum supply contract can be proved—and victory won!—becomes the megalo-mind’s personal Iwo Jima. Or so he thinks as he imagines the liability.
It was only natural, then, that we should be standing in what, without a trace of embarrassment, was called a “war room.” The designation is crisis-headquarters cachet for an otherwise nondescript file-strewn government office, nestled in an impractical, Seventies-style government office building. A “war room” is the portentous Central Command for game-planning litigation in the criminal justice system. And this particular war room was thus cachet within cachet. Not only was it dedicated to a litigation like no other; the building it was inside breathed a sense of purpose belying its prosaic appearance.
