KSM Prosecution Myth: the “pre-9/11 mindset”

On Friday, Attorney General Eric Holder announced Khalid Sheikh Mohammed and four co-conspirators will be tried in a civilian court in New York City for their role in the September 11, 2001 attacks.   A predictable outcry followed.  One of the most misleading statements, repeated by individuals such as Rudy Giuliani, Texas Senator John Conryn, and former Bush Attorney General Michael Mukasey, claims that prosecuting terrorists takes us back to a “pre-9/11 mindset.”

The problem with their claim is the fact that terrorist trials never went away.  In fact, they increased dramatically after 9/11.  A report from the Center on Law and Security shows 693 defendants with identified terrorist ties were prosecuted in the United States from September 2001 through September 2008.  81 of those defendants were affiliated with al Qaeda.  And, 23 of those al Qaeda defendants were tried in New York City (without compromises to safety, to address another misleading criticism).

The Bush administration certainly did not advocate a “return to a pre-9/11 mindset” yet it released a 68-page “Counterterrorism White Paper” in 2006 trumpeting its ongoing fight against terrorists in the courtroom.  Some of the highlighted cases included terrorists who conspired to attack or take Americans hostage in Pakistan, Colombia, the Philippines, India, and Uganda.  Mr. Mukasey’s Justice Department even pursued a case against an Iraqi-born Dutch citizen who plotted to attack Americans in Iraq.  Prosecuting foreign terrorists in U.S. federal courts is nothing new and occurred even more after September 11, 2001.

After 9/11, the Department of Justice made the prosecution of terrorists its highest priority.  It has sent to prison members of al Qaeda, Hezbollah, and Hamas, not to mention other non-Islamist groups like the FARC and AUC in Colombia.  Its prosecutors have pushed the envelope in some cases and even suffered a few setbacks.  Along the way they have learned a great deal about the challenges of terrorist cases and best practices.

So let’s bury the “pre-9/11 mindset” hyperbole and recognize that prosecuting terrorists in federal courts is one of the many weapons available to the United States.  It has been used extensively and will continue to be used when circumstances dictate it is appropriate.  Breathlessly claiming federal prosecution somehow shows the government thinks less of the terrorist threat is neither helpful nor accurate.
 
Mike Foote is a prosecutor in Colorado and a Fellow with the Truman National Security Project