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Detaining Alien Enemy Combatants in the Civilian System



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Here we go again. 

Khalfan Khamis Mohamed (KKM) helped build the bomb detonated in August 1998 at the U.S. embassy in Dar es Salaam. He was convicted of being part of the al Qaeda conspiracy to murder Americans and of the embassy bombing plot in which over 200 people were killed (eleven in Tanzania, the rest in and around the U.S. embassy in Kenya). The government sought the death penalty, but the jury was not unanimous (9-3 in favor), so he is serving life-imprisonment in a maximum security prison (the “supermax”) in Florence, Colorado. He appealed and he lost. His conviction and sentence are final; his legal case is over. But, of course, when it comes to the rights of jihadists, the case is never over — there are always lawyers determined to fight for more and judges willing to listen.

Convicted terrorists face severe restrictions on their ability to communicate with the outside world. Known as the SAMs (special administrative measures), these rules limit the number of people with whom a terrorist may communicate, restrict the number of phone calls he is allowed to make, and provide for enhanced monitoring of both phone calls and written correspondence. KKM has been complaining about them for years, arguing that they violate his First Amendment rights. Mind you, KKM is a Tanzanian national who had no connection to our country other than mass-murdering people at our embassy thousands of miles away. But once brought into our country and its legal system, he was clothed in all the majesty of the Bill of Rights. Now Colorado federal judge Marcia Krieger has ruled that his claim is substantial and should proceed to trial. 

When it counters prisoner complaints about the SAMs, the Justice Department contends that involvement in terrorist activity and the jihadist cause create an intolerable risk that the convicted terrorist would incite violence if permitted to communicate with the outside world. If the logic of this were not obvious enough, we have experienced in just the past 15 years (to take just a few of the more notorious examples): the Blind Sheikh issue from prison the fatwa Osama bin Laden credited as the necessary Islamic justification for the 9/11 attacks; the Blind Sheikh using his lawyer to communicate messages to his Egyptian terrorist organization; the 1993 World Trade Center bombers sending incendiary mail messages to jihadists in Spain; and El Sayyid Nosair inciting terrorism and helping plot the 1993 World Trade Center bombing from his prison confinement in Attica, New York. 

Moreover, as I’ve pointed out on other occasions, evidence of plans for and terror plots aimed at breaking imprisoned terrorists out of jail has been a staple of terrorism prosecutions for many years. Indeed, in 2000, when KKM and other al Qaeda operatives were awaiting trial in lower Manhattan, there was a deadly attempt to escape — during which KKM’s cellmate, Mamdouh Mahmud Salim, stabbed a prison guard in the eye, nearly killing him. At KKM’s sentencing, in arguing for capital punishment, the government presented evidence showing that KKM had helped Salim in the plot, though KKM’s lawyers (surprise!) denied the allegation.

For these and other reasons, and owing to common sense, courts generally won’t entertain challenges to the SAMs. But now, the New York Times reports, Judge Krieger is listening. Appointed to the bankruptcy court by President Clinton in 1994 and raised to the district court bench by President George W. Bush in 2002, Krieger has just ruled that the government’s generalized fears that convicted terrorists will engage in dangerous communications “do not address Mr. Mohamed’s conduct or his particular risks.” Therefore, since the government contends that KKM possesses a “longstanding commitment to jihad” and is thus likely to advocate violence,” the judge says the government must prove those things before constraining the convicted terrorists free speech rights so narrowly. In essence, we are told an al Qaeda murderer who has already had a lengthy trial and appeal has still not gotten enough due process.

The Obama administration has repeatedly claimed that terrorists can be safely detained in the civilian prison system. How? By imposing SAMs. As I’ve previously recounted, Attorney General Holder insists that it is his power to impose SAMs that makes ordinary federal prisons sensible facilities for holding enemy combatants in wartime. Yet, his Justice Department caved when shoe bomber Richard Reid challenged the SAMs as a violation of his claimed First Amendment right to engage in communal prayer with fellow Muslims. So are the SAMs just a rhetorical device in Holder’s crusade to move terrorism back to its pre-9/11 status as a law-enforcement problem, or are they something DOJ will fight for?

We’ll see. It’s worth remembering that the Obama/Holder Justice Department is heavily influenced by the ACLU. In fact, as the ongoing Pajamas Media series on DOJ hiring demonstrates, Holder recruits heavily from the ACLU. For years, the ACLU of Colorado has been on a campaign against the supermax prison there, arguing that its confinement conditions under the SAMs are “simply another form of torture.” Now the Colorado federal court, too, seems poised to chip away at the notion that, once you’re convicted of a terrorist offense, we presume you are a mortal threat to society and we will never again permit you the chance to act on your inclinations. How hard can we really expect this Justice Department to push back?

Over the Obama administration’s vigorous protestations, Congress has kept  Gitmo detainees and other jihadists captured overseas out of the United States. This latest episode is more proof that lawmakers must remain steadfast. There simply can be no guarantee that the civilian justice system will do everything in its power to protect us.



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