2-19-2010By Daphne Eviatar
Senior Associate, Law and Security
Cross-posted at Huffington Post.
Earlier today, former Attorney General John Ashcroft admitted at a Conservative Political Action Conference that civilian trials for terrorists have “use and utility.”
Sam Stein on Huffington Post points out that the statement “throws a wrench in Republican talking points” which lately have dismissed the civilian justice system as irrelevant to the war on terror.
But Ashcroft is hardly the first Republican to acknowledge the civilian courts’ important role. In fact, there may be no better response to Republican South Carolina Senator Lindsey Graham’s latest campaign to militarize terrorism investigations and prosecutions than the comprehensive White Paper on U.S. Counter-terrorism produced by the Justice Department – under George W. Bush.
Senator Graham, meet Alberto Gonzales, the attorney general who signed off on that 2006 Counterterrorism White Paper.
The 2006 White Paper is a 68-page document that extols “the impressive success of the Department of Justice in the war on terrorism,” and documents “how the criminal justice system operates effectively as an element of national power.”
In fact, the document effectively rips apart every one of Senator Graham’s recent arguments supporting his proposed legislation to require Khalid Sheikh Mohammed and his alleged co-conspirators in military commissions. It also undermines his even more expansive statements since the failed Christmas Day bombing suggesting that all terrorism cases from now on should be handled by the CIA and the military rather than the criminal justice system.
“Civilian trials, which the Obama Administration has proposed, will be unnecessarily dangerous, legally messy, confusing to our own troops who fight and capture terrorists on the battlefield, and very expensive,” Graham said recently, promoting his proposed legislation.
Oddly, not once during the Bush administration’s eight years did Lindsey Graham complain about the successful prosecutions of accused terrorists in federal courts. Hundreds of them.
According to the 2006 Department of Justice, the criminal justice system has been so successful – it reports winning more than 300 convictions of terrorists since 2001 – by relying on its vast power to conduct transnational investigations, and on a broad range of criminal statutes, such as those outlawing “material support” to terrorists and broadly defining “weapons of mass destruction.” Meanwhile, DOJ has aggressively used charges of “immigration fraud” and “false statement offenses” to arrest and imprison suspected terrorists before they can commit a terrorist act.
So what about Senator Graham’s claims that terrorism suspects don’t talk in civilian prosecutions?
Actually, “our successful prosecutions have produced cooperating defendants who have, in turn, provided intelligence information to investigators, prosecutors and national security officials, leading to further investigation, disruption and prosecution,” says the 2006 report.
Moreover, “cooperation with our foreign partners has led to counterterrorism successes in foreign courts as well as in our own…”
Then there’s Graham’s concern that civilian prosecutions will inevitably lead to the release of classified evidence.
Here’s the Bush administration’s answer: “Criminal cases that utilize classified intelligence information are a challenge, but the Classified Information Procedures Act, combined with strategic charging decisions, enable us to appropriately handle this intelligence in criminal cases while protecting both the classified information and defendants’ due process rights,” the 2006 paper reads.
True, the 2006 paper acknowledges that some cases have presented “unique questions, such as how to deal with evidence purportedly available from detainees abroad, how to balance enemy combatant status with our ability to bring criminal charges, and how to authenticate evidence collected by a foreign intelligence service without disclosing that services’ sensitive sources and methods.” But the government’s focus was always on making better use of the criminal justice system’s tools and powers. At no time did the government consider abandoning it altogether.
“We aggressively investigate and prosecute in order to protect our national security, protect our cherished rights, and vindicate the rights of victims of terrorist activity and terrorist acts,” the paper concludes.
The military commissions simply cannot do the same thing. For one thing, this new, untested system doesn’t have prosecutors with decades of experience trying terrorism cases, as Clarence Page pointed out at the Chicago Tribune the other day.
That may be one reason the track record on prosecuting Jihadist terrorists is far stronger in federal court – which has prosecuted 195 since September 11 — than in the military commissions, which have prosecuted only three. And two of those have already been released.
John Walker Lindh, for example, the American Muslim convert arrested in Afghanistan, was sentenced to 20 years in prison in a federal court. David Hicks, on the other hand, an Australian convert also fighting for the Taliban, was sentenced to just nine months plus time served by a military commission.
Aside from which court is harsher, on a practical level, military commissions just don’t have the same breadth of law to rely on. Created by the Military Commissions Act of 2006, the court’s jurisdiction is only over the crimes listed in that law, and over traditional crimes of war. Because crimes like “material support for terrorism,” “conspiracy,” and even the killing of enemy soldiers have never traditionally been considered war crimes, though, a military commission can’t legitimately prosecute any of those crimes that occurred before the MCA took effect. That’s a huge limitation – particularly if we’re talking about prosecuting the September 11 suspects.
Lindsey Graham apparently thinks that trotting out “military commissions” as the answer to terrorism is going to make him look like a tough guy – “military” just sounds tougher than “civilian.”
Recent reports suggest that the Obama administration is considering moving the 9/11 trial, apparently at the urging of Lindsey Graham. But surely the administration doesn’t buy his arguments.
Will the fact that even the Bush administration under Dick Cheney was saying the same thing about the critical role of federal courts in fighting terrorism make any difference? I can’t believe I’m touting the Alberto Gonzales Justice Department, but on this point, it was right. Someone send that White Paper to Lindsey Graham.