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Conservatives Once Again Play Politics with U.S. Counterterrorism Policy

Op-Ed by Senators in Washington Post Turns Blind Eye to the Failings of Military Commissions

SOURCE: AP/U.S. Marshal's Service

Umar Farouk Abdulmutallab, the failed underwear bomber, who was prosecuted in criminal court, cooperated with authorities with intelligence gathering. Military detention has a spotty record at best with gaining intelligence.

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Once again this morning The Washington Post lends its op-ed space to the neverending conservative campaign to weaken U.S. counterterrorism policy.

This time Sens. Joe Lieberman (I-CT) and Kelly Ayotte (R-NH) complain that the Obama administration sent a suspected member of the Somali terrorist group al-Shabaab to a New York federal court for trial instead of military detention in Guantanamo Bay. The U.S. criminal justice system boasts a long and successful record of prosecuting terrorism cases and obtaining valuable intelligence information. Guantanamo, however, remains a terrorist-recruiting bonanza. Sending an al-Shabaab member there is a terrible idea that would elevate the stature of the terrorist group and draw it more into direct conflict with the United States.

The circumstances of Ahmed Abdulkadir Warsame’s detention are certainly sensational. He was seized somewhere at sea between Somalia and Yemen and held aboard a U.S. Navy ship for at least two months while being interrogated by the High-Value Interrogation Group, or HIG, the team drawn from numerous frontline U.S. government agencies established by the Obama administration specifically to question suspected high-ranking terrorists. It was then determined after extensive discussions among top Obama administration national security officials to transfer Warsame to New York for trial on material support for terrorism and conspiracy charges.

This last move is what created the political opportunity for President Obama’s opponents to go on the attack despite the fact that this case is very similar to that of the 2008 arrest of Afiaa Siddique. Siddique was captured in Afghanistan and accused of the attempted murder of U.S. military personnel. The Bush administration quickly transferred her to the United States for trial in a federal court, where she was convicted and sentenced to 86 years in prison.

Conservatives didn’t say anything about Siddique’s transfer to the United States for trial, but 23 senators sent a letter to Defense Secretary Leon Panetta stoking unfounded fears that Warsame would be released in the United States. Senate Minority Leader Mitch McConnell (R-KY) took to the Senate floor to accuse President Obama of “deliberately importing a terrorist into the United States.” And today, Sens. Liberman and Ayotte claim “there is no good reason” not to use Guantanamo for the detention and prosecution of Warsame thus avoiding “the risks associated with a terrorism trial in a U.S. city.”

Well, senators, I have a few reasons. And they’re based on facts—not on attempts to scare the American people for political gain.

Criminal courts are much more experienced in prosecuting terrorists. Far from the supposed “advantages” Sens. Lieberman and Ayotte claim for military commissions, criminal courts are significantly better suited to prosecuting suspected terrorists on these charges than the Guantanamo military commissions. U.S. federal courts have extensive experience in handling cases involving charges of material support for terrorism and conspiracy, literally having prosecuted dozens if not hundreds of such cases whereas similar military commissions cases can be counted on one hand.

Criminal courts produce longer sentences. Looking at the results of these cases also demonstrates the criminal courts’ superiority as two of the three individuals convicted on material support charges in military commissions have already been set free while criminal courts dole out much longer sentences of at least 15 years. The prime example of this was the case of Salim Hamdan, who was acquitted by a military commission of conspiracy but convicted of material support for terrorism for serving as Osama bin Laden’s driver. His sentence was five months, and he was returned home to Yemen by the Bush administration.

Warsame’s conviction in a military commission could be overturned on appeal. Prosecuting Warsame for material support for terrorism and conspiracy charges in military commissions also runs the unnecessary risk that any conviction will be overturned on appeal for reasons unrelated to his alleged actions. Military commissions are established to prosecute war crimes, and neither material support nor conspiracy has ever been considered a war crime subject to prosecution in a military tribunal. That creates the very real prospect that any such conviction would be overturned on appeal. Why take that risk when a perfectly good and tested alternative exists?

Criminal courts yield reliable intelligence. Sens. Liberman and Ayotte next urge the detention of suspected terrorists like Warsame to be based on “intelligence gathering,” but completely ignore the evidence that the criminal justice system is an excellent source of reliable intelligence and military detention has a spotty record at best. Leaving aside that Warsame was interrogated for weeks by the HIG, he is reportedly still cooperating with federal authorities while his criminal case advances. Warsame is cooperating just like Umar Farouk Abdulmutallab, the failed underwear bomber; Bryant Vinas, the American captured in Pakistan who has provided a “treasure trove” of information; and David Headley, who gave up information that rolled up terrorist cells and won convictions. The list goes on.

Intelligence collection from military detention is spotty. Sens. Lieberman and Ayotte claim that military detention is superior for intelligence collection because suspected terrorists “can be interrogated for as long as necessary in order to gain intelligence.” That would be great if the duration of interrogation was connected in any way to results. But unfortunately the evidence does not bear this out. The Bush administration detained Jose Padilla in military custody for more than five years, but he never provided any useful or reliable information to his interrogators. The same is true for Ali al-Mari, who was also held by the Bush administration for years in military custody and never cooperated.

Detaining Warsame at Guantanamo would help terrorists win more recruits. Conditions at Guantanamo have significantly improved since the darkest days of the Bush administration. But it is equally true that the detention center remains a symbol of the worst excesses of the Bush administration’s war on terrorism, and a potent propaganda and recruitment weapon for America’s terrorist enemies. Sending a member of al-Shabaab to Guantanamo—treating him as a warrior rather than a criminal—would hand the Somali-based terrorist group a major opening to elevate its standing among international terrorist groups vying for prominence in the wake of Osama bin Laden’s death. It would also boost their recruiting, an effort which already occurs among Somali communities in the United States.

Sending Warsame to Guantanamo could draw al-Shabaab into targeting the United States. Al-Shabaab’s recruiting pitches and activities have largely focused on drawing young Somalis back to their homeland to fight for control of the country and not on conducting terrorist attacks on the United States or other targets. It does now appear, however, as if al-Shabaab is expanding its focus beyond Somalia’s borders. Sending a member of al-Shabaab to a place as loaded with symbolic power as Guantanamo could actually provide fresh impetus for them to direct more resources toward attacking U. S. targets with a pre-existing stable of Somali-American recruits.

Criminal courts have a long and successful record of handling terrorism cases like Warsame’s. They produce reliable intelligence information and deliver long jail sentences while military commissions are virtually untested, certainly unreliable, often allow for the quick release of those convicted, and have not demonstrated much in the way of producing intelligence.

Sens. Lieberman and Ayotte want the Obama administration to reject a criminal justice system that works in favor of a military detention system that would boost terrorist recruiting and might even draw al-Shabaab into expanding its operations to include U.S. targets. The Obama administration is right not to listen to them.

Ken Gude is Managing Director of the National Security and International Policy Program at American Progress.

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