Andy McCarthy’s Analysis Doesn’t Add Up

By Gabor Rona

International Legal Director

Andy McCarthy is playing 3 Card Monte, and not very well, at that. His thesis appears to be that the highly respected Human Rights First report, In Pursuit of Justice, is inflating (or in his words, “cooking the books” on) the number of successful terrorism prosecutions in federal courts.

The report, co-authored by experienced former federal prosecutor Jim Benjamin and (now) chief of the criminal division of the Manhattan U.S. Attorney’s office, Rich Zabel, meticulously details the many criminal cases involving international terrorism that the federal courts have successfully handled since 9/11. It busts several myths that McCarthy and others have been peddling to slander the federal courts, such as “they can’t protect classified evidence” and “they can’t handle cases that arise in a context of armed hostilities.”

McCarthy attacks the report’s conclusion that federal courts have convicted 195 individuals in international terrorism-related cases since 9/11. He says this number is “false and an exercise in hypocrisy.” In the same breath, he notes that “report does not claim that 195 international terrorists have been convicted. Rather, it says that 195 defendants have been convicted so far in 119 cases that have some connection, however attenuated, to terrorism.”

So which is it Mr. McCarthy, are we lying because we claim that all 195 were “international terrorists” or because we do not claim that they were all “international terrorists?” You can’t have it both ways.

Fact is, there’s one thing Mr. McCarthy gets right. It’s that many of these convictions were, as the report claims, of individuals “with some connection” to international terrorism. Mr. McCarthy seems to suggest that since not all of these convictions were of Osama bin Ladens and for the crime of mass murder, it somehow diminishes the claim that federal courts are proper venues for such cases. Huh? Seems that if Mr. McCarthy were truly interested in bringing terrorism’s hangers-on to justice instead of trying to make political hay out of thin air – and if he were supportive of the use of the criminal justice system to thwart the next terrorist attack, rather than just punish the last one – he would speak glowingly of the fact that such individuals can be prosecuted under a vast menu of crimes that are within federal jurisdiction, including “material support” for terrorism, as well as false statements, financial fraud, and immigration fraud.

His complaint about the resolution of the al Marri case is another bait-and-switch exercise. He doesn’t like the sentence al Marri received. But his complaint is not about federal courts vs. other options, it’s about the fact that al Marri pled guilty to “material support” instead of some other charge that McCarthy thinks would have merited a tougher sentence. If Mr. McCarthy thinks federal prosecutors mishandled the case by allowing this plea bargain, he should focus his criticism on them, not on the use of federal courts, and make his case for the alternative of military commission trials (see below)..

What really galls Mr. McCarthy, though, is not that federal courts have done well in prosecuting those in supporting roles for international terrorism. It’s that they’ve also done well in prosecuting the few major players that have been caught. McCarthy declines to mention the Moussaoui case, the Shoe Bomber, the First World Trade Center bombing case – all successful federal court prosecutions of the kinds of people Mr. McCarthy would put into the “real terrorist’ category. This, it seems, does not accord with his preference for bringing such cases in the discredited, dysfunctional military commissions which in their eight years of on-again/off-again existence, have managed to convict only 3 people, 2 of whom are now free.

In a grand finale that is meant to bring us to the barricades, Mr. McCarthy warns of the Christmas bomber being prosecuted for an immigration violation instead of attempted murder (seems he simply has not seen the indictment: attempted use of weapon of mass destruction, attempted murder, willful attempt to destroy aircraft, placing a destructive device on an aircraft, illegal possession of a destructive device) and of KSM being accorded due process that his victims will never again enjoy. The point being what exactly? Should murder suspects not be accorded trials? Whatever the unspoken details of Mr. McCarthy’s proposed alternative to federal prosecution might be, to hamstring law enforcement is a radical proposal that flies in the face of crucial counter-terrorism victories of the past decade. Every single terrorism suspect arrested in the United States during the Bush administration after September 11 was initially held under federal civilian criminal law. More than 200 terror suspects have been interrogated by the FBI and tried in civilian courts since 9/11, including Richard Reid, the “shoe bomber,” who is now serving a life sentence. Vital actionable intelligence can–and has–been obtained from terrorism suspects after they’ve been arrested as criminal suspects. Interrogation of terrorism suspects after criminal arrest has resulted in vital intelligence information that has saved American lives. Such terrorism suspects have given information about al-Qaida sleeper cells within the United States, training camps in Afghanistan, and details about high-level terrorism suspects such as Khalid Sheik Mohammed. Umar Farouk Abdulmutallab, the suspected Christmas day bomber, who was appropriately questioned before he was Mirandized, provided valuable intelligence and is now reportedly cooperating with investigators. On the other hand, detainees in military custody in the United States and tried before U.S. military commissions are also entitled to a legal representation, limiting any alleged advantage for interrogations conducted in military custody.

Andy McCarthy is an experienced federal prosecutor. He could put his knowledge to much better uses than knocking down straw man arguments and sowing counterproductive discord that impedes consensus on efforts to prevent further attacks and hold terrorists accountable. Please Andy, let us all instead put an end to the fear-mongering and rancorous cacophony that continues to divide us.