The decision by Attorney General Eric HolderEric H. HolderDems fear divisions will persist after DNC chair election Michael Moore touts Ellison for DNC chair: ‘We need fresh blood’ How the candidates for DNC chair stack up ahead of Saturday's vote MORE to rely on the U.S. civilian criminal justice system to try most suspected terrorists is supported by the record of the George W. Bush administration of doing the same. Let’s look at the facts (derived from the must-read article by Jane Mayer in The New Yorker’s Feb. 15 issue):
First, without exception, every previous terrorist suspect apprehended inside the country has been handled as a civilian criminal. Since 2001, mostly under the Bush administration, according to the New York University Center for Law and Security, criminal courts have convicted some 150 suspects on terrorism charges.
After Moussaoui was convicted in the Virginia court and sentenced to life, U.S. Attorney Rudy Giuliani, one of Holder’s most outspoken critics today, said:
“I was in awe of our system. It does demonstrate that we can give people a fair trial.”
And what of the record of military-tribunal trials of suspected terrorists during the prior administration?
Of the three cases adjudicated during the Bush administration at Guantánamo by military tribunals, one defendant received a life sentence after boycotting his own trial; the second, Salim Hamdan, a Yemeni who worked as Osama bin Laden’s driver, served only six months beyond the time already served at Gitmo and is now at liberty; and a third, David Hicks, an Australian who attended al Qaeda training camp, is now free as well, striking a plea bargain and serving just nine months.
Or compare two similarly situated cases, both suspected terrorists captured in Afghanistan in 2001, as reported by Mayer. One, John Walker Lindh, pleaded guilty in a U.S. civilian criminal court and is now serving 20 years in prison; the second, Yasir Hamdi, was declared an “enemy combatant” and held in military detention without charge in 2004. But after a federal court challenge, he was freed.
Finally, it is a fact that the criminal justice system has obtained valuable intelligence information. The decision to arrest the “Christmas bomber,” Nigerian Umar Farouk Abdulmutallab, under the U.S. criminal justice system and thus subject to constitutional protections, has been most vociferously criticized by the Republican right as evidence of Democrats (and Holder in particular) being “soft on terrorism.” But the facts are otherwise: Abdulmutallab gave crucial and sensitive intelligence information to FBI agents — that he was trained in Yemen by affiliates of al Qaeda and obtained explosives from them.
(By the way, at that point he was not read his Miranda rights under the “public safety exception,” which few people seem to know about.)
The Justice Department under Holder arranged for Abdulmutallab’s father to visit with his son, who was then persuaded to become a cooperative witness against his al Qaeda sponsors. It is a fair question to ask, as Holder does in Mayer’s article, whether Abdulmutallab’s father would have gone to American authorities if he knew his son might be whisked away to a black site and possibly be subjected to “enhanced interrogation techniques,” which many people believe is a euphemism for torture. I seriously doubt it.
The issue of where Khalid Sheikh Mohammed (KSM) and his cohorts should be tried is a different one from whether he should be tried in the U.S. civilian system. New York’s political and law enforcement authorities have expressed legitimate concerns regarding the security and cost of a trial, as well as sensitivity to some families of Sept. 11 victims.
I believe Holder got it right when he told Mayer: “The question of [a commitment to] justice … that’s toughness. ... we’ll fight our enemies, and we’ll do that which is necessary, and we won’t turn our backs on the values and traditions that have made this country great. That is what is tough.”
In short, there should be no trade-off between being “tough” on suspected terrorists and trying them in the U.S. criminal justice system of which we should be so proud. Those who suggest otherwise do an injustice to our criminal justice system and ignore the facts and experiences of the Bush administration. They also ignore that the Founders of our republic also saw no trade-off between convicting the guilty and guaranteeing the principles of due process and the rule of law.
Davis, a Washington lawyer and former special counsel to President Clinton from 1996-98, served as a member of President George W. Bush’s Privacy and Civil Liberties Oversight Board in 2005-06. He is the author of Scandal: How ‘Gotcha’ Politics is Destroying America.