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Even al Qaeda Operatives Deserve Their Day in Court — and Justice

October 16, 2013

This week, the Obama administration indicted yet another terrorist in federal court, much to the expected grumblings of senior GOP lawmakers. On Monday, al Qaeda operative — and one of the FBI’s Most Wanted — Abu Anas al-Libi arrived in New York City to stand trial for his involvement in the 1998 bombings of the U.S. Embassies in Kenya and Tanzania. He unwillingly turned up in Manhattan after American special operations forces nabbed him in a daring raid in Tripoli.

In the expected Pavlovian response, senior Republican senators Lindsay Graham (R-SC), Kelly Ayotte (R-NH), and Saxby Chambliss (R-GA) criticized the move, arguing al-Libi should bypass the federal court system for a one-way trip to Guantanamo Bay and its military commissions. Sen. James Inhofe (R-OK), the senior Republican on the Senate Armed Services Committee, went a few steps further, calling the decision to arraign al-Libi in federal court “despicable.”

Despicable? Hardly. But more importantly, this reflexive reaction ignores the records of the federal courts and the record — or lack thereof — of the military commissions.

Intelligence gathering is certainly one important aspect of the counterterrorism business, but ultimately the U.S. needs to prosecute and incarcerate these individuals instead of merely placing them in legal limbo — and our federal court system remains the most effective way to bring terrorists to justice. Here are three reasons why:

Civilian courts are tough and effective on terror suspects. Between September 2001 and December 2010, federal courts convicted 438 people of terrorism related offenses. Most of these cases never went to trial, since 65 percent of terrorism defendants pled guilty.

Moreover, the civilian system is tough on terror offenses, often handing down long sentences. The most common sentence is 10-14 years imprisonment, while the second most common is life behind bars. And it’s not like federal courts are new to this effort — they’ve tried and convicted high-profile al Qaeda operatives like the 2001 “shoe-bomber” Richard Reid, the 2009 “Christmas Day” suicide attacker Umar Farouk Abdulmutallab, and the 2009 foiled NYC subway attacker Najibullah Zazi.

On the other hand, the military has a terrible track record of convicting terrorists. Since 9/11, military tribunals have only convicted a handful of people, and a number of those convicted are already free, like Osama bin Laden’s driver Salim Hamdan and Australian national David Hicks. As former Bush Administration Pentagon official Matthew Waxman noted in the Washington Post, “There’s a widespread perception that military commissions are tilted strongly against defendants, often based on the assumption that military officers will come down more harshly than federal judges. The record to date tells a very different story.”

And the proof is self-evident: Since 2009, no trial at a military commission has come to a final conclusion — including those accused of attacking the U.S. in 2001. Even more galling, one terrorist sentenced to life in prison by the commissions — Ali Hamza al Bahlul — had his conviction overturned by a federal appeals court in January 2013 since his crimes were not war crimes when they were committed.

Civilian courts also have more tools than military courts to convict terrorists. Federal prosecutors often convict suspected terrorists by showing they provided “material support for” or committed a “conspiracy to engage in” terrorism. However, such charges can’t be brought before most military tribunals because they are generally not considered crimes under military law.

Federal plea deals are also useful in getting cooperating terror suspects to work with prosecutors to capture and convict others, according to former FBI Director Robert Mueller. This cooperation has been used to bring down other terrorist cells and operations, such as the quick guilty plea by Ahmed Abdulkadir Warsame, who ran guns between al Qaeda in the Arabian Peninsula (AQAP) and al Shabaab. Republicans grumbled when the U.S. transferred Warsame from a Navy ship to a federal prison, but made little complaint when he pled guilty. He now faces life in prison.

In short, federal civilian courts provide an effective and tougher response to the threat of terrorism — far more than military ones. Abu Anas al-Libi will have his day in federal court; those who argue this is a bad move by the government are ignoring the courts’ long record of being tough on terrorism.
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