Ghailani Trial Showcases NYC is Safe for Terrorist Trials

Most people don't even realize it, but an alleged al Qaeda terrorist - deemed among the most dangerous terrorists in US custody by US counterterrorism officials - has been quietly appearing in a U.S. federal court in downtown Manhattan for pretrial hearings for weeks now.  His trial is scheduled to start there next week.  And as the Wall Street Journal notes today, the NYPD - who are the national experts on counterterrorism security - don't see any need for extra funds to buttress their normal security procedures.

That's a far cry from the $200 million the police department said last year it would need to secure the trial of some other alleged al Qaeda operatives:  Khalid Sheikh Mohammed and his co-conspirators in the 9/11 attack.

Ahmed Khalfan Ghailani is being tried for his role in an earlier al Qaeda terrorist attack on U.S. interests: the bombings of two U.S. embassies in Africa in 1998. He was considered so important to al Qaeda that after he was captured in Pakistan in 2004, he was subjected to so-called "enhanced interrogation techniques" in CIA "black sites" while interrogators pumped him for information. He was only transferred from the Guantanamo Bay prison camp to a New York prison for civilian trial last year.

Critics of the Obama administration's decision to use civilian trials for alleged terrorists claim, among other things, that trial and imprisonment in the United States pose a major security threat. But according to Devlin Barrett and Sean Gardiner in today's Journal:

The New York Police Department plans some behind-the-scenes security adjustments for Mr. Ghailani's trial, but there will be no street closures or extra officers assigned to security outside the courthouse.

For anyone who actually lives in New York and knows what the downtown courthouse area is like, that makes perfect sense. Ever since the September 11 terrorist attacks, the NYPD has stepped up its patrols and security in the area. There are now concrete barriers around all federal buildings that make it impossible for someone to drive a bomb up anywhere near them. Security entering the courthouse has always been tight, which makes sense, given that the Manhattan courthouse has long been the primary location for terrorist trials.

The problem with the plan to try KSM and his alleged associated there wasn't that New York City lacked sufficient security; it was that political opponents of the Obama Administration turned the trial into a political tool they could use to undermine the administration. And once opponents like Liz Cheney whipped some locals up into a frenzy about the need to close streets and add security, downtown businesses got scared about how that all might affect their bottom line.

The truth is, as the Ghailani trial demonstrates, that the NYPD and federal prison guards are fully capable of securing the massive stone courthouse and adjacent high-security prison that's long housed suspected terrorists safely.  We neither need to shut down the city nor spend another $200 million to accomplish that.

 

 

March Madness Strikes the Terror Debates

The Wall Street Journal is absolutely right thatLindsey Graham is tossing up an embarrassing air ball. Graham's effort to get the administration to abandon legitimate federal court trials for suspected terrorists in exchange for the funding needed to close Guantanamo Bay is headed nowhere fast, predicts the Journal.

As I've noted before, Graham doesn't have support for his scheme from either side of the aisle.

Senators with any respect for the U.S. justice system, let alone real concern for national security, know that it's absurd to bargain away the requirement that the 9/11 suspects get a legitimate trial. That means a trial that not only convicts the guilty but reveals what really happened when the United States was ruthlessly attacked on September 11, 2001, and showcases our respect for the rule of law over brutality and political expedience. After all, the US constitution is no bargaining chip - it's survived 223 years, through war and peace, for good reason.

Richard Durbin (D-Ill.), Russell Feingold (D-Wisc.), Patrick Leahy (D-Vt.) and others know that any cheap political points lawmakers might score by abandoning American principles will come back to bite them - particularly if military commission convictions are reversed on appeal. They'll be even more embarrassed when the country looks back a few years from now and wonders how Congress came to abandon the most basic American principles because it was cowed by a handful of thugs eager to be seen as warriors for Allah martyred by the United States government.

Lawmakers speaking out against civilian trials, meanwhile, are so intent on undermining the Obama administration, regardless of their impact on national security, that they're obstructing justice to score political points. Not only do they oppose federal trials, but they won't agree to closing the prison camp at Guantanamo Bay so long as President Obama remains in office. No matter that scores of military leaders, in addition to former President George W. Bush and Senator John McCain - when he was a presidential candidate - agreed that Guantanamo must be shuttered.

So the Journal's right that Graham can't possibly deliver victory on his proposed compromise. But the paper's conclusion -- that military commissions are the place for KSM & Co. to go -- is based on assumptions wholly divorced from the facts.

Military commission proceedings "since September 11 have been serious and even-handed," writes the Journal in its endorsement of those trials.

Really? Three convictions in eight years - only two of which followed trials that were even contested -- hardly backs that claim up.

Take the case of Salim Hamdan, who military prosecutors characterized as a "hardened Qaeda member" and bin Laden's right hand man. The military jury acquitted Hamdan of all conspiracy charges and three of eight charges for "material support for terrorism." The result was a sentence of only five and a half years - most of which he'd already served. And that was a case that government officials had said was "one of their strongest" against any of the Guantanamo detainees, as reported in the Wall Street Journal.

Meanwhile, federal prosecutors have convicted more than 195 terrorists in federal court.

Even Brookings Institution fellow Benjamin Wittes and former Bush administration official Jack Goldsmith, writing in the Washington Post last week, acknowledge the weakness of the military commissions. The two note that "serious legal issues remain unresolved, including the validity of the non-traditional criminal charges that will be central to the commissions' success and the role of the Geneva Conventions." Sorting out those issues "will take years and might render them ineffectual," the authors add. They also note that the commissions lack international legitimacy.

Wittes' and Goldsmith's solution, however, is even worse than the Journal's. "Don't bother trying them at all," the two scholars pronounced. "Domestically, the political costs of trying high-level terrorists in federal courts have become exorbitant," they argue, while the "public relations and related legitimacy benefits" of a military commission trial aren't great, either.

So there we have it. Whether and how to try a group of men who are believed to have orchestrated the worst terrorist attack and mass murder ever on U.S. soil has come down to a question of pure politics. "It is time to be realistic about terrorist detention," write Wittes and Goldsmith, and to concede that the time has come to do away with our quaint notions of justice in favor of a new system of indefinite detention without trial. That should be supported, they argue, with new legislation codifying its legitimacy in U.S. law.

To be sure, that's been the de facto response to many of the suspected terrorists held at Guantanamo Bay for the past eight years.

A similar course was briefly considered after World War II, when Winston Churchillreportedly told Joseph Stalin that he'd rather just execute Nazi leaders upon their capture. Stalin, of all people, insisted that they deserved a trial.

Historically, the United States has prided itself as being several steps above Stalin in terms of its respect for the rule of law. But these latest proposals make one wonder just how low some American opinionators and policymakers may be willing to sink.

Caving on the 9/11 Trial Would Send All the Wrong Messages

The Washington Post reports today that President Obama's advisors are planning to recommend that the administration reverse its decision to try the September 11 suspects in federal court and instead opt for military commissions. That's more than just disappointing, given the overwhelming consensus of military and legal experts that civilian courts are more effective for prosecuting terrorists. If the president were to heed that advice, it would also be astonishingly bad politics.

The Post story doesn't say what President Obama has decided to do, or whether Attorney General Eric Holder, who announced the decision to try Khalid Sheikh Mohammed and his alleged co-conspirators in federal court to much fanfare in November, will go along with those recommendations. But for the administration to reverse itself now on a key legal and strategic decision that critics have made a political hot potato would signal to Obama's opponents that if they just heat up the rhetoric and prey on people's fears enough, the administration will cave. And that would be a sorry signal of how this administration plans to determine critical matters of national security.

Recent reports have suggested that Senator Lindsey Graham has been cutting deals with White House Chief of Staff Rahm Emanuel, not only on the 9/11 trials but on passing legislation to secure the indefinite detention of terrorism suspects in exchange for supporting the administration's efforts to close the prison camp at Guantanamo Bay. To drum up support for his ideas, Graham has been going around denouncing the idea that the United States would "give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," and insisting that military commissions are the "proper venue" for such trials. Graham neglects to mention in such statements that all criminals in the United States have always had constitutional rights in U.S. courts -- these rights are, after all, enshrined in the U.S. Constitution.

And to call military commissions the "proper venue" is to suggest that they have a strong record for convicting terrorists -- which, in fact, they do not. Military commissions have convicted precisely three terrorists so far, two of whom have already been released from prison. By contrast, U.S. federal courts have convicted almost 200 self-described Islamic jihadist terrorists since the terrorist attacks of September 11.

None of that matters, however, when it comes to the politics of fear. Since Attorney General Eric Holder announced the decision to try the 9/11 suspects in federal court, his opponents have turned it into the linchpin of their opposition to the administration. At a demonstration in front of the federal courthouse in New York in December, protesters called Obama and Holder "the real terrorists" and demanded their impeachment.

As I stood in the cold rain watching them, I had to wonder, since when did so many ordinary Americans (admittedly many with tea bags hanging from their star-spangled hats) come to care so much about the procedural complexities of the federal judicial system? Why in the past, when the Bush administration prosecuted hundreds of terrorists in this same Manhattan courthouse, had they never claimed that our judicial system was a "moral disgrace" that would allow terrorists to "spew their hate across America"?

Of course, most of those protesters know very little about the U.S. court system and how much more effective it's been at convicting terrorists and locking them away for life than any military commission has. But some disgruntled Americans, understandably angry and insecure in tough economic times, have been whipped into a frenzy by Obama's most adamant opponents, who've channeled their fears into angry protests about terrorism rather than addressing their real and legitimate concerns.

Perhaps that's to be expected. But for the Obama administration to cave to that hysteria would send all the wrong messages. It would signal a victory for the politics of fear over the longstanding American tradition of respect for the rule of law. It would showcase a triumph of crass political deal-making over rational, fact-based decisionmaking. For President Obama, it would suggest a profound weakness on his part -- a message to his adversaries that if they just make enough of a stink about the decisions they don't like, then they can change them. And most importantly, it would mean that the administration is willing to sacrifice lasting national security to momentary political expedience. And that would be the saddest statement of all.


Lindsey Graham v. the U.S. Military

Senator Lindsey Graham (R-S.C.) likes to tout his experience as a former military lawyer. Graham apparently thinks this makes him sound more convincing when he goes around advocating military trials for all suspected terrorists, as he's been doing lately. Graham's now trying to get that idea signed into law in a bill he's introduced in the Senate. A similar provision is likely headed to a vote today in the House of Representatives.

The odd thing is, in doing this, Graham is going up against a huge and rapidly-growing number of military leaders -- including Defense Secretary Robert Gates himself -- who say that forcing the government to try suspected terrorists in military commissions is a really bad idea.

In October, Gates joined Attorney General Eric Holder in a letter to Senators urging rejection of the Graham amendment. Noting that the Pentagon and Justice Department now work jointly to evaluate every terrorism case, they wrote that "it would be unwise, and would set a dangerous precedent, for Congress to restrict the discretion of either department to fund particular prosecutions."

As the defense secretary put it: "We must be in a position to use every lawful instrument of national power -- including both courts and military commissions -- to ensure that terrorists are brought to justice and can no longer threaten American lives."

Then on Sunday, former Secretary of State General Colin Powell, who served in both the Bush I and Bush II administrations, made the point that civilian federal courts have been far more effective than any military commissions.

"In eight years the military commissions have put three people on trial," said Powell. "Two of them served relatively short sentences and are free. One guy is in jail." Meanwhile, the civilian court system "has put dozens of terrorists in jail and they're fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn't born out by the history of the military commissions."

In an apparent reference to Graham, Powell added:

"I think a lot of people think, 'just give them to the military and the military will hammer them.' Well, guess what? Officers in the military are obliged to follow the Constitution. Military lawyers are obliged under their oath to give the best possible defense to the defendant no matter whether he's a terrorist or not. And so you didn't get out of the military commissions what a lot of people thought at the beginning you would get and a lot of us did not think it was a good idea in the beginning."

Even the former chief judge of the Army's Court of Criminal Appeals in the JAG Corps disagrees with Lindsey Graham, despite Graham's former JAG credentials.

Military investigators know how to get information on an actual battlefield, Retired Brigadier General James P. Cullen told the New York Times the other day. But prosecutors and FBI agents are better able to link intelligence to track down more terrorism suspects. They're also better at winning convictions.

"You've had about 800 cases that were supposed to be run through the military commissions in Guantanamo, and there have only been three convictions," said Cullen. "You have three-eighths of 1 percent return on military commissions, versus 90 percent plus when they are tried in the federal court."

Okay, but what about all those lawyers who Graham says will tell their clients not to talk? As Graham put it recently: "Is reading Miranda rights to terrorists any way to fight a war?"

Actually, retired 4-star General Colin Powell doesn't have a problem with that.

"I have no problem with them being tried here in the United States," said Powell. "We have two million people in jail. They all have lawyers. They all went before the court of law and they all got hammered. We have got three hundred terrorists who have been put in jail not by a military commission but by a regular court system."

As for Khalid Sheikh Mohammed, who Graham seems to think has special powers that will be unleashed against Americans as soon as he enters a federal courthouse, Powell said: "I have no problem with him being tried in our federal system here in the United States."

Here's what four other retired generals had to say about Lindsey Graham's idea back in September:

"We believe that it would be wrong to treat the leaders of al Qaeda as warriors deserving of military trials," said Retired Rear Admirals Don Guter and John Hutson, and Retired Brigadier Generals David Brahms and James Cullen in a letter to President Obama.

"America's well established system of civilian justice is not just well equipped to handle these cases, it is far better suited to the task of discrediting and defeating the terrorist enemy we face. When the planners of 9/11, including Khalid Sheikh Mohammed, are finally brought to justice, it will be an extraordinarily important moment in the struggle against terrorism. If these trials are held before civilian judges and juries, it will highlight the strength and legitimacy of our system of justice, and at long last focus the world's attention where it belongs: on the crimes these men committed against us, rather than on how we are treating them."

Even the new-and-improved military commissions will not be able to achieve that, the military men warned. Not only are they still tainted with the stigma of Gitmo, but their questionable legitimacy will become a tactical advantage for terror suspects.

"Defendants before military commissions will have the advantage of being able to challenge the legitimacy of the system in which they are being tried, instead of simply having to face the evidence against them." That will further delay justice: "Particularly in the most prominent terrorism cases, our nation cannot afford more legal controversy and doubt; and we will not have another chance to get this right."

Even if the military commissions were flawless, military leaders claim that giving terrorists warrior status only bolsters their cause.

"Like virtually all terrorists throughout history, al Qaeda members want to be seen as soldiers, not as criminals. That warrior mystique helps them recruit more misguided young men to their ranks, and justifies, in their own minds, the murder of their enemies. This is why al Qaeda has always described its crimes as acts of 'war.' "

Counter-terrorism advisor John Brennan has said exactly the same thing.

And in January, a group of 33 different retired military leaders, with experience in every war the U.S. has waged since 1941, came together to urge President Obama not to treat terrorists as warriors deserving of special military tribunals.

"Some have suggested that suspects like Umar Farouk Abdulmutallab, the man accused of attempting to bomb Flight 253, do not deserve the protection provided in our federal courts and should instead be subject to military tribunals," they wrote. "On the contrary, we believe that Abdulmutallab and his ilk should be treated as the would-be mass murderers they are. To bestow on him and others like him the designation of "enemy combatant" reinforces their claims to be jihadist warriors. They are not warriors. There is neither nobility nor ideological justification in murdering innocent civilians." As for the claim that they'll get a high-profile platform to spew their hateful ideologies, the military leaders wrote: "On the contrary, we are confident that these trials will showcase America at its best, a nation of laws."

So the overwhelming majority of actual military leaders, with hundreds of years of military experience behind them, all disagree with Lindsey Graham.

I know Senator Graham spent six and a half years as an Air Force lawyer, but he's never prosecuted a single terrorist. After all, that's not what military lawyers do. For the most part, they prosecute and defend U.S. military personnel for mostly minor crimes.

So who should we believe?

I think Judge William Young, the federal court judge who sentenced "shoe bomber" Richard Reid to life in prison without parole after the Bush administration won his conviction in a civilian trial, put it best when he said to Reid at his sentencing:

"You are not an enemy combatant.


"You are a terrorist.

"You are not a soldier in any war.

"You are a terrorist.

"To give you that reference, to call you a soldier, gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or if you think you are a soldier.

"You are not--you are a terrorist.

"And we do not negotiate with terrorists.

"We do not meet with terrorists.

"We do not sign documents with terrorists.

"We hunt them down one by one and bring them to justice.

"So war talk is way out of line in this court. You are a big fellow. But you are not that big."

Diaries

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