The decisions to prosecute the failed underwear bomber and hold the rumored trial of the Bali bombing mastermind in federal criminal court in Washington, D.C. has revived the debate over whether criminal courts or military commissions are more effective in prosecuting suspected terrorists. Many conservative critics are simply seeking to exploit terrorism for political gain with specious attacks on President Barack Obama. They rely on a presumption that a military response is always the toughest available option, but even former Bush administration officials say these conservatives’ faith in military commissions is misplaced. The facts are clear: Criminal courts are a far tougher and more reliable forum for prosecuting terrorists than military commissions.
A consistent line running through these conservative attacks as well as other recommendations to avoid the criminal justice system—that lawyers interfere with intelligence interrogation—is also taken for granted but is equally erroneous. Detainees have the same access to attorneys in military commissions and even when held without charge. This has pushed some to recommend a preventive detention scheme, but that is a flawed solution for a problem that does not exist, and it removes key leverage points from interrogators’ arsenals. Interrogation continues after a detainee meets with an attorney, and the record of recent terrorism investigations demonstrates that interviews with terrorists who have attorneys have produced “an intelligence goldmine.”
False assumptions are driving the debate about the tools available to fight terrorism. President Obama needs to cut through the noise and use the tough and proven criminal justice system as a vital weapon in the fight against Al Qaeda.
Conservatives favor military commissions that are unreliable and soft on terrorists
Immediately after the failed underwear bombing on December 25, 2009, conservatives sought to use the attempted terrorist attack for political purposes. Rep. Pete Hoekstra (R-MI) didn’t even wait one day, blasting the Obama administration and then using the attack to raise money for his gubernatorial campaign. Hoekstra, the ranking Republican on the House Intelligence Committee, said after the indictment of Umar Farouk Abdulmutallab in federal court that, “we should now consistently charge these folks in military courts.”
Hoeksta’s counterpart in the Senate Intelligence Committee, Kit Bond (R-MO), said about the Abdulmutallab indictment, that “we have learned the hard way that trying terrorists in federal court comes at a high price … We must treat these terrorists as what they are—not common criminals, but enemy combatants in a war.”
Bond and Hoekstra raised similar objections to the possibility that Hambali, leader of the Al Qaeda affiliated group Jemaah Islamiyah, would be brought to Washington, D.C. for trial in federal court. Bond said it was a mistake to treat “this foreign terrorist as a common criminal,” while Hoekstra blasted it as a “show trial.”
This tough rhetoric is entirely false bravado and hides the plain facts that military commissions have never handled a single case of murder or attempted murder and have doled out shockingly short sentences to terrorists—even to a close associate of Osama bin Laden.
Military commissions are an untested, uncertain, and unacceptable risk
Since their formation in November 2001, military commissions have only had one trial, negotiated one plea bargain, and convicted one defendant after he boycotted the proceedings. In addition to this paltry record of trials there remain serious questions about the commissions’ legality. The Supreme Court struck down a previous version of the commissions as unconstitutional. Congress has twice attempted to reform and modify the commissions’ procedures, but their latest effort still exposes the commissions to legal challenges. Serious questions remain about whether the most used charge in military commissions, material support for terrorism, will be available to prosecutors because it is not a war crime.
The only genuine trial of anyone before a military commission was that of Osama bin Laden’s driver, Salim Hamdan. Military prosecutors accused Hamdan of transporting weapons to battlefields in Afghanistan and being a close associate of the Al Qaeda leader. Despite the gravity of these charges Hamdan’s trial resulted in a split verdict—the military jury acquitted him of conspiracy and returned a guilty verdict only on the charge of material support for terrorism.
Given this poor track record it is remarkable that conservatives’ trumpet military commissions as if their performance was beyond reproach. Former senior Bush administration officials James Comey and Jack Goldsmith warned that conservative critics of Obama were placing “undue faith” in the commissions and there is “great uncertainty about the commissions’ validity.”
The evidence of the eight-year experiment with military commissions demonstrates that it is an unacceptable risk to trust the prosecution of high-level terrorists in such an untested and uncertain system.
Military commissions give terrorists short sentences
It’s a near universal presumption that military commissions are the “tougher” forum for prosecuting suspected terrorists, but the experience since their formation in 2001 shows the opposite. Two of the three individuals convicted in military commissions are already out of prison living freely in their home countries of Australia and Yemen.
Australian David Hicks was the first person convicted in a military commission when he entered into a plea agreement on material support for terrorism charges in March 2007. He was given a nine-month sentence, which he mostly served back at home in Australia. Hamdan—convicted by a military jury of material support for terrorism—received a five-month sentence and was sent back to his home in Yemen to serve the final months before being released in January 2009.
The only person convicted in a military commission that remains in jail is Ali al-Bahlul. Bahlul was Al Qaeda’s top propagandist and video maker and was charged with soliciting murder and material support for terrorism. Bahlul, however, only received his life sentence after he boycotted the entire trial process and was convicted without mounting a defense.
The most surprising feature of the military commissions is their leniency. The lesson to defendants seems to be to participate in your defense and you will be set free.
Criminal courts are a reliable, effective means of prosecuting terrorists
The extensive record of criminal courts in successfully prosecuting terrorists stands in stark contrast with the shockingly poor military commissions system. Since 2001—the same period in which military commissions have convicted just three terrorists—criminal courts have convicted more than 200 individuals on terrorism charges, or 65 times more than military commissions. Criminal courts racked up these convictions with none of the uncertainty that still plagues the military commissions system.
A military commission has never handled a case remotely like Abdulmutallab’s—attempted murder and a specific act of terrorism. But a criminal court obtained a conviction in an identical case: Richard Reid’s failed bombing of a transatlantic airliner in December 2001. Reid was also sent on his suicide mission by an Al Qaeda affiliate using explosives concealed in his clothing, only the explosives were in his shoes and not his underwear. Reid even used pentaerythritol, the same explosive material as Abdulmutallab. He is currently serving a life sentence at the Supermax penitentiary in Florence, Colorado.
Criminal courts hand out tougher sentences than military commissions
The sample size of military commissions’ sentences is very small, but there are some analogous cases in the criminal justice system to compare the length of sentences in the two forums. The allegations against David Hicks in a military trial were quite similar to those leveled against John Walker Lindh—the so-called American Taliban—in a criminal court, while comparable charges to the material support for terrorism conviction for Salim Hadman can also be found in criminal courts.
Hicks pleaded guilty to the charge of material support for terrorism with the underlying allegations that he trained at an Al Qaeda camp in Afghanistan and that he was an armed participant in numerous engagements with American and Northern Alliance forces. Lindh pleaded guilty to serving in the Taliban army and carrying weapons. Hicks received a nine-month sentence while Lindh got 20 years. Even if all of the time Hicks served prior to his plea bargain is counted, his total time in custody was only six years, less than one-third of the sentence Lindh received.
Hamdan was convicted of providing material support for terrorism for being Osama bin Laden’s chauffer. In 2006, Ali Asad Chandia was convicted in a criminal court of material support for terrorism for driving a member of Pakistani extremist group Lashkar-e-Taibi from Washington National Airport and helping him ship packages containing paintball equipment back to Pakistan. Hamdan received a five-month sentence while Chandia got 15 years. Even if all of the time Hamdan served prior to his conviction in a military commission is counted, his total time in custody would be only eight years.
At most, Osama bin Laden’s driver got a little more than half the sentence from a military commission that a criminal court doled out to someone for driving a low-level Pakistani extremist.
Conservatives erroneously think military detention denies access to attorneys
Conservatives believe that military commissions have value as a means of removing supposed barriers to obtaining intelligence information from suspected terrorists. Rep. Peter King (R-NY) said the Obama administration should have “put [Abdulmutallab] in a military tribunal so we can get as much intelligence information out of him as we could.” Rudy Giuliani also castigated the decision to bring charges against Abdulmutallab in a criminal court, saying, “It seems to me we’re going to be trying the most dangerous terrorists in the wrong place.” The former New York City mayor went on to question, “why in God’s name would you stop questioning a terrorist?”
Former U.S. District Court Judge and later Attorney General Michael Mukasey goes beyond calls for bringing Abdulmutallab before a military commission and argues that he should be held “for a time in military custody, regardless of where he is ultimately to be charged.” Mukasey returns to the concern about access to lawyers, claiming that it was a grave mistake to put Abdulmutallab “in a civilian tribunal where the first step was to get him a layer who promptly put an end to his disclosures. The point is less where Abdulmutallab will eventually be prosecuted than what use could have been made of him as an intelligence source.”
These conservatives clearly believe that the criminal system impedes intelligence collection because defendants get lawyers in the criminal system who always tell their clients to stop talking to the government. The only problem with this argument is that their recommended solution to this apparent problem—charging detainees in military commissions or holding them without charge in military detention—doesn’t change a defendant’s access to an attorney.
Suspected terrorists get lawyers in military commissions
Whether or not lawyers are a barrier to intelligence collection, King and Giuliani fundamentally misunderstand the military commissions system. Both versions of the Military Commissions Act that Rep. King voted for in 2006 and 2009 require providing defense counsel to detainees facing charges before a military commission. Military commissions also have procedures prohibiting self-incrimination and ensuring that statements from the defendant are made voluntarily. There is virtually no difference between military commissions and criminal courts in the provision and availability of defense counsel.
Judge Mukasey made sure detainees held without charge get lawyers, too
While the Supreme Court has yet to rule on whether it’s legal to detain suspected terrorists captured in the United States without charge in military custody, there is no question that those detainees have the right to challenge their detention through habeas corpus proceedings. The law in this situation is settled and unequivocal: Anyone held in custody in the United States has habeas corpus rights and can challenge the legality of their detention in a U.S. court.
The habeas statute is silent on access to attorneys to assist in such claims, but a 2002 ruling in the Southern District of New York requires that detainees being held without a trial be given access to their lawyers to assist in making their habeas claims. It’s remarkable that former Attorney General Mukasey would forget that inconvenient detail to his argument about holding Abdulmutallab in military custody since he was the judge in the 2002 ruling.
In that case, the Bush administration argued against granting access to attorneys specifically on the grounds that it would jeopardize “gathering intelligence on the enemy.” Judge Mukasey rejected that position, holding that “the interference with interrogation would be minimal or nonexistent.” Mukasey ordered the Bush administration to allow the detainee, José Padilla, access to his attorney. The small number of others also held without charge by the Bush administration in the United States have had similar access to lawyers.
Access to lawyers doesn’t restrict intelligence gathering
The evidence from recent terrorism investigations proves Judge Mukasey right that access to lawyers does not interfere with interrogating suspected terrorists. Nothing prohibits interrogations to continue after a suspect is given access to an attorney. In fact, terrorist suspects have given what U.S. officials call “an intelligence goldmine” after meeting with attorneys.
Bryant Vinas, an American convert to Islam captured in Pakistan in 2008 and turned over to the FBI, has proven to be one of the U.S. government’s most valuable sources of information about Al Qaeda. From the moment Vinas was in American custody he had all the access to attorneys and other rights afforded criminal suspects, and he still produced what one intelligence official called a “treasure trove” of information about Al Qaeda. In more than 100 interviews with counterterrorism officials, Vinas provided information that led to a Predator drone strike that killed a suspected militant, and his information has allowed counterterrorism officials “to peer deep inside the inner workings of Al Qaeda.”
David Headly—also known as Daood Gilani—was arrested in Chicago and charged in connection with the 2008 Mumbai attack that left more than 150 people dead. Headly pleaded not guilty, but he is cooperating with prosecutors and helped U.S. officials uncover a plan by Lashkar-e-Taibi to unleash a similar attack in Copenhagen, Denmark, targeting the newspaper that printed cartoons of the prophet Mohammed. Meeting with his attorney has not prevented him from providing intelligence information that disrupted at least one terrorist plot.
Plea bargains in criminal cases compel cooperation and ensure accuracy of information
One of the reasons interrogations in the criminal system are so successful is that a defendant facing a trial has a strong incentive to cooperate with the government in exchange for a reduced sentence or better conditions of confinement. Two recent examples are Mohammed Babar who led investigators to break up terror plots in the United States and Britain, and three Somali-Americans who helped break up a recruiting network in Minneapolis after pleading guilty.
Mohammed Babar was arrested in 2004 and quickly pled guilty in connection with plots to bomb financial building in the United States and London. In exchange for a lighter sentence Babar has become a “supergrass,” testifying in the trials of suspected terrorists in Britain and Canada, as well as providing U.S. officials detailed knowledge of Al Qaeda plans and training camps in South Waziristan, Pakistan. Babar’s plea agreement required him to give evidence to any U.S. agency at any time, but also carried the extra stipulation that if he ever gave false information the deal would be revoked and he would likely get life imprisonment.
Federal law enforcement officials uncovered a network of Somali nationals in Minneapolis that were recruiting and training Somali-Americans to fight on behalf of the Islamist movement Al Shabaab in their native country. The investigation has so far led to eight indictments and a wide-ranging investigation into a network of at least 20 individuals that had been recruited to fight in Somalia. The extent of the network was only discovered with the assistance of three cooperating witnesses that had been recruited. These three ultimately pleaded guilty to related charges but still aided investigators.
Some urging Obama to seek preventive detention law to avoid “soft on terrorism heat”
Writing in The Washington Post, Ruth Marcus rightfully criticizes conservative attacks on the Obama administration as “ill-informed, ill-intentioned or both.” But then she falls right into their trap, saying she’s “left with one nagging worry about the criminal charges—and an even bigger fear about the adequacy of the existing legal architecture for preventing terrorism … the flimsiness of the existing legal regime to hold and interrogate the Abdulmutallabs of the world.”
Marcus then recommends a preventive detention law like that proposed by Benjamin Wittes and Colleen Peppard of The Brookings Institution. She complains that Obama once favored such an approach but has “since backed away,” and worries that move has opened him up to the “soft on terrorism heat” he’s now getting. But as even Marcus admits, the criticism is misplaced and one would hope that the president would not adopt a system of detention without charge out of political expediency.
Preventive detention does not improve intelligence collection
It’s hard to understand Marcus’ claim that the legal regime is flimsy when Abdulmutallab is currently behind bars being interrogated by the FBI. She even admits that he was “yakking away,” so her belief must be predicated on the inaccurate assumption that all interrogation ceases once attorneys get involved and charges are brought.
It is even more difficult to understand how she thinks the Wittes-Peppard proposal would improve intelligence collection. The Brookings analysts advocate a preventive detention system that would allow suspected terrorists to be held without charge for an initial 14 days and then in renewable six-month periods. Detainees would be afforded access to attorneys and the right to contest their detention. Proponents must think this proposal would improve intelligence collection by magic since this is exactly like the criminal justice or military detention system.
Leverage lost and disincentive to cooperate created when detainees held without charge
Preventive detention also runs the risk of imperiling intelligence gathering. Questioning suspected terrorists while they are held without charge surrenders leverage, which is one of the best weapons available to interrogators. Detainees held without the prospect of trial have no incentive to cooperate with the government. The only mechanism that interrogators then have to get the detainee talking is sound technique. While that certainly can work on its own, it is unclear why anyone would want to unilaterally remove a powerful tool to get suspected terrorists talking.
Making matters worse, when there is no prospect that a detainee will face a trial, the only way they can affect the duration of their confinement is to convince their interrogators that they no longer possess valuable intelligence. The experience at Guantanamo underscores this disincentive to cooperate with interrogators. When detainees there would stop providing information to interrogators they would increase their chances of being released.
Similarly, in a system than envisions hearings on detention status every six months, judges will grow more skeptical of the government’s claims for needing the extraordinary power of detention without charge if a detainee is not producing valuable intelligence information.
The Obama administration should use the tough and proven criminal system
Most of the chest thumping from conservative critics of Obama is politically motivated bravado devoid of reasoned analysis. They can get away with it because of two broadly accepted assumptions that are unsupported by the facts. Military courts are not tougher on terrorists than the criminal system and access to attorneys does not impede intelligence gathering.
In light of the actual record of the criminal system, it is evident that preventive detention advocates are pushing a flawed solution to a problem that does not exist. The Obama administration has rightly rejected preventive detention as unnecessary. Despite a political and media environment that finds it difficult to accept that criminal courts are tougher on terrorists than military tribunals, political expediency is no excuse to abandon proven powers. The Obama administration should continue to utilize this vital tool in its integrated arsenal of weapons arrayed to defeat Al Qaeda.