A new study should finally put to rest the nonsense claim by President Obama, Attorney General Holder, and others in the administration that “hundreds” of terrorists akin to Khalid Sheikh Mohammad were convicted in the civilian justice system during the Bush administration. The number thrown around by the administration has varied widely from 300 to 190 to assorted spots in between. The point of quoting these figures was to make Americans think that trials of people accused of the most serious terrorism offenses, on par with the 9/11 attacks and those the other Guantanamo detainees are accused of committing, have been routine in civilian courts. So what’s the big deal?
We’ve said that this bloated number is not an apples-to-apples comparison, because it sweeps in large numbers of defendants whose crimes — such as supporting terrorism through financial or immigration fraud — are not even remotely comparable to those of the terrorists who are held at Guantanamo Bay (like KSM), or of the underwear bomber, who was caught trying to bomb an airplane as an act of war on behalf of al-Qaeda.
Well, according to PolitiFact.com, based on an analysis by New York University’s Center on Law and Security, the real apples-to-apples number of major Islamist terrorists who have been convicted in civilian courts is . . . less than a dozen, over seven years. Evidently it’s not so routine after all.
There have been three military-commission trials, but the military-commission process was on hold for years as court challenges were worked through. It didn’t really start getting off the ground until 2008.
And, of course, the number of al-Qaeda terrorists detained by the Bush administration at Guantanamo and elsewhere overseas greatly exceeded the number held in the criminal-justice system. That is for good reason — the Bush administration viewed the vast majority of al-Qaeda terrorists as enemies of the United States, not common criminals.
The NYU study does point out that federal courts can play an important role in bringing terrorists to justice. We agree. Indeed, as we have discussed, the Bush administration used a phased approach to handling many terrorists, which permitted their interrogation for intelligence purposes first, followed by a trial in civilian court or by military proceedings.
In our view, however, war criminals should be tried in military commissions created by Congress for that specific purpose. War criminals, particularly non-citizens like KSM or the underwear bomber, are not entitled to civilian trials under our Constitution or the laws of war, and it is dangerous and wrong to act as if they were.
— Bill Burck is a former federal prosecutor and deputy counsel to Pres. George W. Bush. Dana M. Perino is former press secretary to President Bush.