Eric Holder is right on civilian trials of terrorists

Lanny Davis Former Special Counsel to President Bill Clinton
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The decision by Attorney General Eric Holder to rely on the U.S. civilian criminal justice system to try most suspected terrorists is supported by the record of the George W. Bush administration of doing the same. Let’s look at the facts (derived from the must-read article by Jane Mayer in The New Yorker’s Feb. 15 issue):

First, without exception, every previous terrorist suspect apprehended inside the country has been handled as a civilian criminal. Since 2001, mostly under the Bush administration, according to the New York University Center for Law and Security, the criminal courts have convicted some 150 suspects on terrorism charges.

Zacarias Moussaoui, who planned to be a participant in the Sept. 11 attacks before he was caught ahead of time, was tried by the Bush administration Justice Department in Virginia federal court and sentenced to life. Where were today’s critics back then? The hypocrisy is breathtaking in ignoring this example. After Moussaoui was convicted in the Virginia court and sentenced to life, U.S. Attorney Rudy Giuliani, one of Holder’s most outspoken critics today, said: “I was in awe of our system. It does demonstrate that we can give people a fair trial.”

And what of the record of military-tribunal trials of suspected terrorists during the prior administration?

Of the three cases adjudicated during the Bush administration at Guantánamo by military tribunals, one defendant received a life sentence after boycotting his own trial; the second, Salim Hamdan, a Yemeni who worked as Osama bin Laden’s driver, served only six months beyond the time already served at Gitmo and is now at liberty; and a third, David Hicks, an Australian who attended al Qaeda training camp, is now free as well, striking a plea bargain and serving just nine months.

Or compare two similarly situated cases, both suspected terrorists captured in Afghanistan in 2001, as reported by Mayer. One, John Walker Lindh, pleaded guilty in a U.S. civilian criminal court and is now serving 20 years in prison; the second, Yasir Hamdi, was declared an “enemy combatant” and held in military detention without charge in 2004. But after a federal court challenge, he was freed and is now in Saudi Arabia.

Finally, it is a fact that the criminal justice system has obtained valuable intelligence information. The decision to arrest the “Christmas bomber,” Nigerian national Umar Farouk Abdulmutallab, under the U.S. criminal justice system and thus subject to constitutional protections, has been most vociferously criticized by the Republican right as evidence of Democrats (and Holder in particular) being “soft on terrorism.” But the facts are otherwise: Abdulmutallab gave crucial and sensitive intelligence information to FBI agents when he was questioned in the hospital — i.e., that he was trained in Yemen by affiliates of al Qaeda and obtained explosives from them. (By the way, at that point he was not read his “Miranda rights” under the “public safety exception,” which few people seem to know about.)

The Justice Department under Holder’s leadership arranged for Abdulmutallab’s father, who had originally reported his concerns about his son to the Nigerian Embassy, to visit with his son, who was then persuaded to become a cooperative witness against his al Qaeda sponsors. It is a fair question to ask, as Holder does in Mayer’s article, whether Abdulmutallab’s father would have gone to American authorities if he knew his son might be whisked away to a black site and possibly be subjected to “enhanced interrogation techniques,” which many people believe is a euphemism for torture. I seriously doubt it.

The issue of where Khalid Sheikh Mohammed (KSM) and his cohorts should be tried is a different one from whether he should be tried in the U.S. civilian system. New York’s political and law enforcement authorities have expressed legitimate concerns regarding the security and cost of a trial, as well as sensitivity to some families of Sept. 11 victims. It is not surprising that the White House and attorney general have been sensitive to such concerns and might relocate the trial outside New York.

There can also be good-faith disagreement on the issue of civilian versus military trials. For example, Republican Sen. Lindsey Graham of South Carolina, whom I greatly respect, genuinely believes that KSM and his cohorts should be tried by military tribunals.

I believe Holder got it right when he told Mayer: “The question of [a commitment to] justice … that’s toughness. … we’ll fight our enemies, and we’ll do that which is necessary, and we won’t turn our backs on the values and traditions that have made this country great. That is what is tough.”

In short, there should be no trade-off between being “tough” on suspected terrorists and trying them in the U.S. criminal justice system of which we should be so proud. Those who suggest otherwise do an injustice to our criminal justice system and ignore the facts and experiences of the Bush administration. They also ignore that the Founders of our republic also saw no trade-off between convicting the guilty and guaranteeing the principles of due process and the rule of law.

This piece appears today, April 15, 2010, in Mr. Davis’s regular weekly column in The Hill “Purple Nation” and “The Daily Caller” an online political website.

Davis, a Washington lawyer and former special counsel to President Clinton from 1996-98, served as a member of President George W. Bush’s Privacy and Civil Liberties Oversight Board in 2006-07. He is the author of Scandal: How ‘Gotcha’ Politics is Destroying America (Palgrave Macmillan, 2006).