Over the past few weeks, we have seen Attorney General Eric Holder aggressively defend the criminal justice system as the appropriate venue to detain, question, and prosecute terrorists. Most recently, Holder has held up Najibullah Zazi, the Denver-based airport driver turned terrorist who pleaded guilty to conspiracy and material support charges, as a prime example of how the criminal justice system can effectively deal with terror suspects. Holder is just wrong.
Let’s begin first, though, with where Holder is right. No one can dispute that the Department of Justice has the ability to leverage the investigative prowess of the FBI and the unparalleled litigation skills of career prosecutors in U.S. Attorneys offices across the country, as well as in the National Security Division. And no one can dispute that the Department of Justice is good at gathering information on terrorists and their sympathizers inside the United States, building a case, and obtaining guilty pleas from such individuals. Indeed, in recent years, DOJ has obtained guilty pleas from all manner of such individuals, including Daniel Joseph Maldonado and Earnest James Ujaama.
The problem, however, is not with those terrorists, like Zazi, who are willing to plead guilty or against whom the government has had the time and opportunity to build strong investigative case. Those cases prove nothing about the ability of the government to handle hardened terrorists who are trained and captured abroad, sometimes on the battlefield, and who are
- unwilling to voluntarily provide information on their cohorts no matter the threatened criminal sanction;
- interested in using the American courthouse as a platform for espousing their unique brand of rejectionism and their perverted views of Islam and the West; or
- hoping to play on the sympathies of those in this country and abroad who share their wrongheaded views about American foreign policy.
Trying these hardened terrorists (and not the easy cases like Zazi) in the domestic court system is not only nearly impossible as a practical matter—because of the problems with evidence collection and chain of custody abroad and on the battlefield—it is also oftentimes counterproductive. Indeed, as Michael Mukasey, former attorney general and U.S. district judge, has pointed out, trying terrorists in the federal courts under standard criminal procedure can lead to very bad results. One need only look as far as the trial of Ramzi Yousef, the nephew of Khalid Sheikh Mohammed and plotter of the 1993 World Trade Center bombing. During his trial, it was revealed that the government had been monitoring a critical al-Qaida communications link. As a result, al-Qaida ceased using that link within days of the revelation, and our flow of valuable intelligence was cut off. It is very difficult, and often impossible, to effectively protect intelligence sources and methods in the federal courthouse. Even Holder cannot dispute that these sources and methods are crucial to our struggle against our enemies, and essential to protecting the safety of the heroes who serve our nation in the clandestine services.