Why Holder is wrong on Zazi

Jamil Jaffer Contributor
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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.

Moreover, giving hardened terrorists a podium with the visibility and credibility of a courtroom located in, for example, downtown Manhattan, from which they can trumpet their radical views is a terrible idea. At a time when America is desperately trying to win the hearts and minds of the world’s 1.57 billion Muslims, a community from which I come (and the vast majority of whom reject al-Qaida and its radical philosophy), we in the American public can little benefit from giving voice to the most extreme and militant elements of that community. And finally, the problem of how to deal with convicted terrorists once their sentence has been served is a difficult one at best. One wonders what will happen when the remaining 15 years on the sentence of Jose Padilla—the convicted terrorist supporter and alleged “dirty bomb” plotter—have passed.

At the end of the day, however, this doesn’t mean—as some have recently suggested—that we must use military tribunals to try these suspects. Those who argue that there are important benefits to trying certain individuals in a system that isn’t perceived—rightly or wrongly—as being stacked against defendants have a point. Thankfully, however, there is a middle ground, one that is consistent with protecting the American public, upholding our values, and being seen to do the right thing. Now is the time for Congress to seriously consider creating a National Security Court, modeled upon the Foreign Intelligence Surveillance Court, staffed by Senate-confirmed, life-tenured federal judges, with special rules for handling classified material and evidence that is collected in abroad or on the battlefield, appropriate limitations on the manner in which proceedings are conducted, and procedures for dealing with convicted individuals once their sentence has been served. Such a court would have the key hallmarks of the federal system—experienced, independent judges with life tenure who have trial experience in the run-of-the-mill criminal and civil cases; appropriate access to information by defendants and the public; and a system of appellate review—with equally experience appellate judges, also with life tenure—that is separate and distinct from the Executive Branch. Such a court would, at the same time, protect the ability of the government to present its case without sacrificing critical intelligence sources and methods and ensure that convicted terrorists aren’t released into American cities.

Only such a court would be able to handle the hard cases—the ones Mr. Holder doesn’t really address—without causing us serious problems at home. For that reason alone, Congress ought to stop sitting around and actually do something before the Obama Administration gets too far down the road of converting the War on Terror into a law enforcement-based police action.

Jamil N. Jaffer served in the Bush Administration as Associate Counsel to the President and as Counsel to the Assistant Attorney General in the National Security Division of the Department of Justice. Mr. Jaffer is also a member of Keep America Safe.