Bush and the case of Iraqi insurgent Wesam al-Delaema.

Bush and the case of Iraqi insurgent Wesam al-Delaema.

Bush and the case of Iraqi insurgent Wesam al-Delaema.

The law, lawyers, and the court.
Jan. 30 2007 6:10 PM

Welcome Back to the Rule of Law

Bush makes good on a terrorism case (finally).

Maher Arar. Click image to expand.
Maher Arar

It speaks volumes about the topsy-turvy legal universe of the Bush administration that its mistakes are still trumpeted from the rooftops, while—on the rare occasion in which it does the right thing—no one seems to notice.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Compare the administration's handling of the Maher Arar affair last week with yesterday's proceedings in the trial of accused Iraqi insurgent Wesam al-Delaema. The first is a story of government error, abuse, and contempt for our allies in the war on terror. The second is a story of cooperation, pragmatic compromise, and respect for our allies. Maher Arar is still on the front pages, however, and Wesam al-Delaema is nearly buried.

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Arar is a household name around the world. The Canadian software engineer was grabbed during a stopover at JFK Airport in 2002 and subjected to 10 months of "extraordinary rendition" in the care of our good friends in Syria. He was tortured until he falsely confessed, then sent home without explanation. A two-year inquiry by a prestigious Canadian commission determined that it had all been an awful mistake. The Bush administration refused to cooperate with that commission and still refuses to remove Arar from the American security watch list, claiming to have secret information that he's still dangerous although the Canadian authorities dispute that.

Last Friday, Canadian Prime Minister Stephen Harper offered Arar a public apology and $8.9 million in compensation while the Bush administration has blocked his lawsuit, citing the executive branch's "state secrets privilege." The conclusions of the Canadians, admitting his arrest was a mistake, are disregarded. No concessions, no apology, no transparency, and no regard for our Canadian allies. Arar wins a permanent entry under A in the world's Dictionary of Reasons To Hate Us.

Now consider the case of the Iraqi-born Dutch citizen Wesam al-Delaema. Yesterday, following a two-year battle over the terms of his extradition, Delaema pled not guilty to several conspiracy counts in a federal criminal court. He faces a public trial on six counts, including conspiring to kill American citizens abroad, to use a weapon of mass destruction, and to maliciously damage or destroy U.S. government property by means of an explosive. Delaema and his cronies, who call themselves the "Mujahideen from Fallujah," videotaped themselves planting bombs on a road used by American forces in Iraq, and the videotape was aired widely on television in the Arab world. The tape—which evidently includes the defendant bragging "this is not the first operation we carry out … . Their casualties have gone beyond your imagination," was found in his house in Amersfoort in a 2005 raid.

Before he was extradited to the United States, Delaema told the Dutch courts he was on the tape only because he'd been kidnapped while visiting Iraq for a wedding. He said he was forced to plant the bombs (and presumably gloat about it) or he would be beheaded. The claim rings slightly false in light of a Dutch television interview he gave in 2003 in which he swaggered, "I don't care if I myself die or not. I want to offer myself up for my land, for my people." His family claims that interview was "a joke."

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In order to win extradition for Delaema to face trial in the United States, prosecutors had to make a raft of promises to the Dutch authorities that would be insulting to American perceptions of the rule of law, were they not so completely well-earned over the past few years. The defendant will be tried in criminal court, not by a military tribunal. He will not face the death penalty, even though under our law his crimes could warrant it. He will serve his sentence—possibly a life one—in a jail in the Netherlands, not here. And, perhaps most astonishing of all, the United States had to agree that Dutch courts will be able to review and possibly modify the terms of the American court's sentence once Delaema is returned to the Netherlands. The American judgment, then, is not necessarily final. And all this because, according to Delaema's attorney, the U.S. government no longer can be trusted to treat its prisoners humanely. Clearly, the Dutch authorities agree.

There is much to be understood from this deal between the American and Dutch authorities. On the one hand, it highlights the level of mistrust and disdain we have earned from our Western allies. But it also reveals a new, almost sensible, oddly secret approach by the Justice Department. The Bush administration can become pretty accommodating when its option is either an open criminal trial or no domestic prosecution at all. Suddenly the criminal courts—long touted by Bush and Cheney as ineffective in prosecuting the war on terror—are adequate. Suddenly, open proceedings don't threaten national security. After literally years of dismissing our allies, the existing conspiracy laws, and the criminal courts, the Justice Department has finally agreed to give 'em a whirl. After years of fighting for symbolic legal gains at the expense of small, tangible ones, the president has finally accepted that it's worth nailing terrorists with powers he has, as opposed to powers he merely craves.

What a contrast between the Bush administration's striking inflexibility in Arar's case and humble pragmatism in Delaema's! The government cannot concede the error in torturing an innocent Canadian but is willing to take what it can get to prosecute a Dutch insurgent? Do we trust our friends in the Netherlands more than our allies to the north? Or is admitting a mistake more difficult for this administration than accepting a legal compromise?

Perhaps the difference between our treatment of Arar and Delaema is best explained as the slow triumph of expediency over empty symbols. As the post-9/11 fever recedes, the administration may be rediscovering the sober virtues of trials over torture, the benefits of multilateralism over going it alone. The president has either realized or been forced to accept that other Western democracies, the U.S. Congress, the federal judiciary, and the free press don't, in fact, want unhinged jihadists roaming the streets any more than he does. And having gone toe to toe with each of these institutions, it now seems he needs their help more than they need his. So, the president will cooperate. But he will never apologize.

In Dalaema's case, that means striking a bargain with the Netherlands. But in the Arar case it would require asking too much: apologizing so that the whole world can hear. And if the president's concern is now pragmatism over symbolism, let me offer a longer wish list: the closure of Guantanamo, fair trials for its occupants, and the dropping of all charges against Jose Padilla. The president isn't quite there yet. But with this Delaema deal, he may be starting to circle back to the legal world he pretty much demolished in the wake of 9/11. Welcome back to the Rule of Law, Mr. President. We've missed you.