8-11-2011By Daphne Eviatar
Senior Associate, Law and Security
Crossposted from the Huffington Post
A month from now, we will mark the ten-year anniversary of 9/11. In addition to memorial gatherings and speeches, we’re sure to hear politicians vowing “never again”: they will protect the homeland by sending the U.S. military to fight terrorism wherever it may be brewing.
All of that makes for nice rhetoric, and may help bolster the careers of some members of Congress.
But the United States has maintained that attitude for ten years now, and it hasn’t made us any safer. We’re fighting three wars far from home. We’re on the brink of yet another financial crisis. We’re holding thousands of faceless prisoners indefinitely without charge around the world, and lack a solid plan for what to do with them. Meanwhile, both the FBI and DHS this year said the threat of terrorism is worse than ever.
None of that seems to daunt Congress, though. If you think their handling of the debt ceiling crisis was a catastrophe, take a closer look at how lawmakers are responding to the terrorism threat.
In June, as part of the annual defense spending bill, the House of Representatives voted for a new Authorization for the Use of Military Force that would have expanded the United States’ “war on terror” far beyond its intended target — the perpetrators of the 9/11 attacks — to wherever, whatever and whomever the President defines as a terrorist threat going forward.
In July, the Senate passed its own version of that spending bill. Though it dropped the expansive new military authorization, the Senate bill, co-sponsored by Senators John McCain (R-AZ) and Carl Levin (D-MI) as part of a compromise deal, would expand the global war in another way: it would require that a large category of suspected terrorists be taken into U.S. military custody, including individuals apprehended on U.S. soil. The FBI, with the best and most experienced international terrorism investigators in the world, would be shut out of the process. Never mind that Senator McCain himself was among the chorus of candidates who vowed to close the Guantanamo prison complex back when he was running for president because, he and others insisted, it was harming U.S. national security.
But that would be letting the facts get in the way.
Take the fact that housing a military prisoner at Guantanamo Bay costs $700,000 more than holding him in a federal prison on U.S. soil. U.S. federal courts also have far more experience prosecuting terrorists than do the military commissions. In ten years, the military commissions have prosecuted and convicted only six individuals on terrorism-related charges. The federal courts on U.S. soil have convicted more than 400.
I’m not touting the federal court system as flawless; indeed, some civil rights groups claim U.S. juries are too willing to convict on terrorism charges following elaborate FBI sting operations that entrap dupes who wouldn’t have committed any crimes on their own. But If there are flaws in the process, they should be fixed. But that’s not a reason to throw out the 222-year-old constitutionally mandated justice system and create a new one.
The supporters of military commissions aren’t concerned about the civil rights of terror suspects, of course; they’re concerned that they might get too many rights in our justice system — the same rights as U.S. citizens, as Senator Mitch McConnell (R-KY) recently lamented– and thereby win acquittal. That became clear when McConnell and Rep. Howard “Buck” McKeon (R-CA) protested the Administration’s handling of Ahmed Warsame, the Somali terror suspect charged in federal court last month after being interrogated for months at sea about his relationship to al-Shabab. What McConnell, McKeon and others SEEM TO want is a system where the government is guaranteed a conviction against anyone suspected of supporting, assisting or affiliating with terrorists. That’s not what they’re going to get with the military commissions.
In fact, the military commissions have, as a whole, been far easier on terrorists and their supporters than have the federal courts, in part because they’re based on such uncertain legal ground. The first military commission created by President George W. Bush was struck down by the Supreme Court, which has not yet ruled on the commissions’ most recent incarnation.
As a result, prosecutors feel pressured to plea bargain and offer sentences that are far shorter than what judges usually mete out in a regular federal court. Osama bin Laden’s driver, Salim Hamdan, was sentenced to just five months more than time served. David Hicks, the Australian al Qaeda supporter, got a 9-month sentence from a military commission. And Omar Khadr, who pleaded guilty to throwing a grenade that killed an American soldier in Afghanistan, received an 8-year sentence, and is scheduled for transfer to Canada in October.
I’m not suggesting that the military commissions haven’t been hard enough on these men. But they’ve been very expensive and haven’t made us any safer. Besides, the military commission procedures are based largely on those of the military’s own justice system, with military lawyers on both sides and a jury of U.S. soldiers, who’d be offended at the suggestion that their role is merely to convict.
On the contrary, the military justice system, created to try U.S. servicemembers, goes to great lengths to be fair. When a defendant pleads guilty in a military court and agrees to a particular sentence, for example, a jury still hears the case and recommends its own sentence; the defendant then receives the lighter of the two. The same rule applies to the military commissions.
A separate system of military justice may make sense for U.S. soldiers, who are subject to the U.S. Code of Military Justice and must follow it wherever in the world they’re stationed.
But the crimes committed by terrorists aren’t isolated or targeted against their own members. They are committed against all of us, against anyone who could be a victim of the next terrorist attack. As a New Yorker both now and ten years ago when the twin towers were struck, I know what that means.
Terrorism is a public crime. It demands not only a thorough investigation and a public accounting, but a public trial in a respected, reliable and accessible court of law. We are very fortunate to have those in this country.
Now let’s hope our political leaders have the courage to use them.