10-17-2011By Daphne Eviatar
Senior Associate, Law and Security
In the days after the so-called “underwear bomber” tried to take down a plane over Detroit on Christmas 2009, critics of the Obama Adminstration were all over the national news decrying the decision to read the would-be bomber his Miranda rights and try him in a U.S. federal court.
When Umar Farouk Abdulmutallab pleaded guiltylast week to the attempted murder of 289 passengers on Northwest Airlines Flight 253 over Detroit, those critics were noticeably silent.
That’s likely because the guilty plea, coming just one day after the start of his trial, underscores the point many of us have been making for years now: U.S. federal courts are the most effective place to try terrorism suspects.
Indeed, the tide on this issue seems finally to be turning. In the wake of the Abdulmutallab conviction, everyone from the Washington Post editorial board to former Bush Administration official Charles “Cully” Stimson at the Heritage Foundation have been emphasizing the value of federal prosecutions of terrorism suspects – and warning of the danger of a highly politicized bill now wending its way through Congress that could end them.
Though the critics don’t mention it, the use of the criminal justice system in terrorism cases was routine during the Bush administration. But beginning with the underwear bomber case in December 2009, Bush administration officials such as former Homeland Security Secretary Tom Ridge and former Vice President Dick Cheney derided the Justice Department’s decision to accord the 23-year-old Nigerian any of “the rights of Americans,” as if the right to remain silent or have legal representation were reserved for American citizens. (It’s not.) Soon after, Congress members such as Michelle Bachmann, Pete Hoekstra, John Boehner, and Mitch McConnell were insisting the suspect should have been declared an “enemy combatant” and taken into military custody.
Had that happened, the underwear bomber would likely remain there today, without charge, as arethousands of other suspects currently in U.S. military custody around the world. And he may not have provided any of the valuable intelligence he turned over to the FBI, which skillfully questioned him, after seeking and obtaining the support and assistance of his family, over the course of the next few weeks.
That hardly displayed “a blind spot when it comes to the war on terrorism,” as Senator Susan Collins of Maine claimed after Abdulmutallab’s in January 2010.
Unfortunately, the terrorism issue has only become more politicized since then, in a way that now seriously threatens national security. A bill passed by the Senate Armed Services Committee over the summer would actually require that all cases like Abdulmutallab’s be handled by the U.S. military rather than by the FBI.
Last week, Senator Harry Reid said he’d refuse to bring the bill to the floor for a vote if these dangerous provisions are not removed, noting that White House counterterrorism advisor John Brennan has called the bill “disastrous.” But Senators McCain and House Armed Services Committee Chairman Buck McKeon are still insisting on it.
Cutting the justice department out of counter-terrorism would be like the federal government cutting off its nose to spite its face. In 2011 alone, the federal government has arrested, charged or convicted suspects in at least 59 terrorism-related cases. According to New York University’s Center on Law and Security, since September 11, 2001, 376 “jihadist defendants” have been convicted in U.S. federal courts on terrorism-related crimes. The Department of Justice last year documented more than 400 convictions in terrorism-related cases since 9/11 (including terrorism that was not jihadist-related). And in 2009, former federal prosecutors conducting a study of 195 jihadist terrorist cases on behalf of Human Rights First concluded that “the criminal justice system has been and should continue to be an important tool in confronting terrorism.”
By comparison, the military commissions at Guantanamo Bay, first created in November 2001, have convicted only six people. Based on my own observations of their operations over the last few years, they’re still trying to figure out how to investigate and prosecute terrorism cases in a brand-new court system without legal precedents or clear procedural rules. In fact, the combination of their inexperience and shaky legal foundations has actually led the military commissions to mete out far more lenient sentences to convicted terrorists than have the regular federal courts.
Yet the National Defense Authorization Act now pending in Congress could force all terror suspects that fit profiles like Abdulmutallab’s into military custody. Although the bill would allow civilian court trials, transfer of terrorism suspects from the military to civilian authorities would be nearly impossible in this political climate. The likely result, then, is more terrorism trials in the less effective and legally questionable military commissions.
The Obama administration opposes the measure as a dangerous restriction on the executive’s ability to use all tools available to it to fight terrorism. Defense Department General Counsel Jeh Johnson will likely explain why he believes that’s important when he addresses the Heritage Foundation on this issue on Tuesday.
If the Senate bill passes, it may be a short-term victory for Senator John McCain and a handful of other lawmakers who’ve been pushing hard for mandatory military detention of all terrorism suspects. But it could create a national security crisis by cutting the experts on international terrorism out of the business they’re best trained to do, and requiring the U.S. military, which is trained to fight wars, to assume key roles of investigation and prosecution long reserved for the FBI. Aside from creating a bureaucratic nightmare, it be would a huge waste of precious federal resources as the military ramps up to do the job of law enforcement.
How the defense department would manage that while cutting $450 billion out of its budget in the next ten years, as Congress has already required, isn’t clear, either.