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Zazi Is Not KSM


Najibullah Zazi’s guilty plea — via which he admitted he is an al-Qaeda agent and planned to commit terrorist attacks against the United States — is cause for congratulations to the FBI agents, intelligence professionals, and prosecutors who worked to bring him to justice. Also, it is encouraging that Zazi reportedly may cooperate with authorities as part of his plea agreement.

This is all happening in the civilian court system. But the jury’s still out on whether this was the best course of action — and of course, Zazi’s guilty plea does not show that the civilian system is the best place to deal with all captured terrorists. Zazi is not Khalid Sheikh Muhammad or Umar Farouk Abdulmutallab. He is a legal resident of the United States, entitled to many of the protections of a U.S. citizen, unlike KSM or Abdulmutallab; he was not caught in the act, unlike Abdulmutallab; and he was captured on U.S. soil, unlike KSM.

When he was apprehended last summer, even Zazi could have been designated as an enemy combatant — and, because he is not a U.S. citizen, eventually tried by a military commission. He reportedly gave the FBI some information before he was arrested, but eventually stopped cooperating and demanded a lawyer. Supreme Court and federal-court-of-appeals precedent would have permitted authorities to hold him, at least temporarily, as an enemy combatant with no right to remain silent and no right to an attorney while being interrogated. Zazi would have had a right, however, to have an attorney challenge the factual basis of his detention as an enemy combatant.

The authorities chose to put Zazi in the civilian system. This may have been due to questions about the strength of the evidence against him. Unlike Abdulmutallab, who was caught red-handed in the act of committing terror, Zazi was part of a disrupted plot that had not yet reached fruition. More significantly, the FBI’s investigation of Zazi was prematurely blown because of miscommunication between federal and local law enforcement, according to press accounts.

The worst lawyer in the world would have a fighting chance to convict Abdulmutallab in civilian or military court, whether or not he were willing to admit he had tried to blow up an airplane. Not so Zazi. For him, prosecutors had to meticulously build a circumstantial case supported by his statements and those of possible co-conspirators and other witnesses. Zazi’s own statements and admission of guilt were likely vital to the case against him, especially since the investigation ended prematurely.

Had he been designated as an enemy combatant and interrogated, his un-Mirandized statements would have been inadmissible in civilian court (though they could have been used for intelligence purposes outside of court); they may been admissible in a military commission, depending on their overall reliability. Even if the plan had been to try him by military commission, a civilian court would first have decided whether there was sufficient evidence of his ties to al-Qaeda to justify holding him as an enemy combatant without criminal charges and without a right to a civilian trial. We don’t know the strength of the evidence against Zazi; only the federal agents and prosecutors who handled the case know that. If they believed they needed Zazi’s Mirandized statements to convince a federal judge that he was part of a terrorist plot, then treating him as a criminal defendant from the outset may have been the best course under the circumstances.

It would be silly to conclude on the basis of one guilty plea that civilian courts are the best way to handle all terrorists. It would be equally silly to believe that the military system is always better than the civilian system. That, of course, has never been our view. What we, along with many others, have called for is thoughtful application of all the federal government’s tools in the War on Terror. Sometimes this entails prioritizing intelligence-gathering over law enforcement, and sometimes it entails the use of military commissions. Blind use of the civilian system, which the Obama administration has essentially conceded happened with Abdulmutallab and with KSM’s soon-to-be-defunct civilian trial, does not further our national security.