Politics & Policy

Winning and Losing

Justice's job is harder because America is safer.

Sami al-Hussayen, a Saudi national, is an American-educated computer programmer. He used his skills to promote militant Islam, creating, operating, and maintaining websites that were used by jihadist sympathizers to disseminate their hate-riven message, including fatwas exhorting Chechnyens and Palestinians to suicide bombings. The Justice Department indicted him for providing material support to terrorist organizations. Two weeks ago, a jury in libertarian Idaho resoundingly told the Justice Department “No,” acquitting al-Hussayen of the most serious allegations (and hanging on lesser ones).

The verdict has triggered a spate of obloquy from the predictable quarters against both Attorney General John Ashcroft and DOJ’s general approach to terrorism. University of Chicago Law Professor Geoffrey Stone, for example, reacted by telling the New York Sun that DOJ’s “batting average is miserable. It’s clear their probability of success has been embarrassingly low.” That dig was a laurel compared to the recent spew from the New York Times’s ineffable Paul Krugman, who misinformed readers that DOJ’s post 9/11 performance has resulted in “the absence of any major successful prosecutions,” only after pronouncing with characteristic thoughtlessness that “No question: John Ashcroft is the worst attorney general in history.”

What is embarrassing about this venom is its abject ignorance of DOJ’s actual track record. In an unprecedented period during which federal law enforcement has, on the fly, radically altered its fundamental mission from prosecution of crime to prevention of terrorist attacks, its overall efficiency has been nothing short of remarkable.

As a result of DOJ’s signature post-9/11 cases: “Shoe Bomber” Richard Reid is serving a life sentence upon his conviction for attempting to blow up a commercial airliner in flight; the “American Taliban,” John Walker Lindh, is doing a 20-year hitch after a guilty plea to providing material support to the Taliban; all of the so-called “Lackawanna Six” were convicted of either supporting al Qaeda or conducting illegal transactions with it; the “Portland Seven” were similarly all convicted on terrorism charges related to their efforts to train with al Qaeda and conduct domestic attacks on Jewish targets; and nine members of the “Virginia Jihad” group were convicted (and two acquitted) of various charges ranging from conspiracy to levy war against the United States to providing material support to the Taliban and the Lashkar-e-Taiba organization in Kashmir.

Nor is that all. Notorious terrorist financier Enaam Arnaout was convicted of racketeering in Chicago (acknowledging in his guilty plea that he diverted funds from a purported charity to militant Islamic groups in Bosnia and Chechnya). In addition, according to Krugman’s newspaper, Abdurahman Alamoudi, once the government’s darling of Muslim outreach, is now–following his indictment for illegal transactions with Libya–cooperating with the FBI regarding his role in a conspiracy, allegedly headed by Colonel Muammar Qaddafi, to murder Saudi Crown Prince Abdullah. If expanded to include other terrorism-related financial crimes, this impressive list of successes grows even longer.

True, al-Hussayen’s acquittal has not been the lone bump in the road. In Detroit, terrorism-support convictions were won against only two of four men indicted as part of an alleged “sleeper cell”–another was convicted of fraud charges while the fourth was acquitted entirely. Now, those much-ballyhooed guilty verdicts are being aggressively challenged by allegations that prosecutors failed to disclose unsavory information about an already unsavory informant witness. While it is a commonplace for defendants facing long jail terms to complain post-trial that their convictions result from government misconduct rather than their own criminality, the Detroit case is admittedly unusual: DOJ was impelled to remove the trial prosecutors, one of whom has now sued the attorney general and the district’s U.S. attorney, among others. The motions to set aside the guilty verdicts thus have more ostensible gravity than usual–although it bears remembering that the presiding judge has not ruled, and that the unseemly intra-government bickering may end up having little to do with the substantive merit of the sleeper-cell prosecution. More embarrassing for sure, meanwhile, has been DOJ’s recent high-profile arrest and egg-faced release of a Portland attorney who was believed, based on faulty fingerprint analysis by the FBI, to have been implicated in the March 11 Madrid bombings.


Obviously, such setbacks are not good. Taken in context, though, they pale against the substantial successes. The most important success, moreover, is the one most studiously unmentioned by Ashcroft’s bloviating detractors: There have been no terrorist attacks in the United States in the nearly three years since 9/11. Repeat: none.

Nonetheless, the question fairly arises: Is Hussayen’s acquittal a bellwether? In truth, it probably is, but neither in the way nor for the reasons cited by the likes of Stone, Krugman, and their fellow Justice-bashers. To understand why requires considering how our national counterterrorism strategy dramatically changed after 9/11, what that necessarily means about the kinds of terrorism cases that will make their way through the courts, and human nature.

The Reno Justice Department’s counterterror efforts were a raging success if judged simply as prosecutions. That is, in the string of cases that stemmed from the series of terrorist attacks and plots between 1993 and 2001, the government pitched a shutout: Every defendant indicted and brought to trial was convicted, many receiving multiple life sentences. From a litigation perspective, simply stated, you cannot do better than that.

The problem, though, is that President Clinton’s only meaningful response to militant Islam was prosecution in the civilian court system. That would have been great if the sole thing we needed to worry about was the public perception of DOJ’s performance. As a holistic national security strategy, however, it was perilous.

My colleagues and I who handled the terrorism cases of the 1990s did not receive better training and insight from Main Justice than the skilled crop of prosecutors now at the helm, and we certainly were not better lawyers. There was, however, a big difference: We had better cases. No, on second thought, we had much better cases.

As I sifted through tape recordings of terrorists plotting to detonate bombs inside the Lincoln and Holland Tunnels just as thousands of commuters traversed them, I didn’t much fret over whether it was all too surreal, whether the jury could actually be convinced that my defendants were serious about something so unspeakably depraved. These jihadists were friends, associates, and co-conspirators of the very men who had tried to blow the World Trade Center to smithereens (killing seven, injuring hundreds, and causing a billion dollars in damage) only a couple of months earlier. The government lawyers who tried the bombers of the U.S. embassies in east Africa had the same litigation advantage, as did those who convicted the militants who conspired to blow up U.S. airliners over the Pacific. All of these cases rested on acts of cold-blooded murder, intended as mass murder. Although the Millennium bombing plot was thwarted, its concrete gravity was similarly palpable from the seizure of a car laden with explosives, not to mention explicit testimony from the central accomplice.

Our defendants, furthermore, were the worst of the worst. Ramsey Yousef, the mastermind of the February 1993 WTC bombing, also headed the airliners conspiracy (while planning, in his downtime, to kill President Clinton and Pope John Paul II). El Sayyid Nosair helped plan the WTC bombing from a New York State jail cell where he was serving time on weapons charges arising out of his infamous 1990 murder of Rabbi Meir Kahane. The blind Sheikh, Omar Abdel Rahman, was the acknowledged leader of one of the world’s most vicious terror organizations (Gamaat al Islamia) and brazenly bragged about its 1982 assassination of Egyptian President Anwar Sadat. I am not saying these cases did not have their daunting challenges; they surely did. I am saying, though, that as long as we did our jobs with a reasonable degree of competence, these are the types of defendants and the types of crimes that juries have no difficulty convicting.


If we are lucky, and if the government adheres to the comprehensive post-9/11 approach that seeks to eradicate rather than manage the terrorist threat, prosecutors will rarely, if ever, have such juicy cases again. It is a little noticed but irrefutable fact that there is inverse proportionality between the perception of DOJ success and the brute reality of peril to the United States. When DOJ’s performance seems sensational, it is because things are going boom and people are dying. Unfortunately, it is completed atrocity that gets the public’s attention and stirs its craving for a catharsis that can only be satisfied by holding villains to account.

Post-9/11 counterterrorism policy provides that the military confronts militant Islam directly at its source, applying force to kill and capture the most dangerous operatives in their overseas strongholds and sanctuaries. This makes the country much safer, but it also makes DOJ’s role far less glamorous and significantly more difficult. Government lawyers are no longer our protagonists at the frontline. By and large, they are not the ones taking out the current day’s assemblage of Yousefs and Nosairs and blind Sheikhs. Those ur-terrorists are now military targets–those who are not killed in combat will no doubt be subjected to military tribunals where the chance of their conviction is great and the chance that their confederates will be educated by lavish discovery of government intelligence files is far smaller.

DOJ’s role is now more often confined to a substratum: not so much terrorists as their support infrastructure of financiers, recruiters, and technical experts; not so much accomplished killers as those who might themselves become terrorists or who would willingly provide the kinds of unspectacular help that terrorists must have if they are to succeed. This role and these prosecutions are critical to national security, but they are much less alluring for the public and the press.


When jihadists slaughter people, civil-libertarian extremists go dark. They are smart enough to know the public will not tolerate the government being hamstrung by theoretical fears that basic constitutional interests such as speech, association, and religious exercise are being chilled. They are clever enough to understand that mutilated bodies and mangled buildings do not gel into an atmosphere hospitable to complaints about ethnic profiling or apologias about the need to tolerate vibrant dissent and ready access to whatever explosives manuals may happen to be available at the local public library.

We have seen, nevertheless, as 2001 has turned into 2002, then 2003, then 2004, with no repetition of 9/11 or, really, anything resembling it, that the libertarians gradually regain their full-throated bumptiousness. That couples up with a second dynamic: For the left-leaning mainstream media, the most important story–the lack terrorist attacks–is not a story at all; their instinct, instead, is that news means a happening, not a non-happening. As terror and its attendant horror gradually fade from immediacy and memory, the media find news in the libertarians’ claims–however empty–that basic freedoms are under siege and that Muslims are being unfairly targeted.

Here’s the problem: scrutinizing speech, association, and religious exercise is how law enforcement must go about investigating terrorism spawned by Islamic militancy regardless of whether there have been successful terrorist attacks or not. That is, whether your mandate is to figure out who detonated the last bomb or who is likely to detonate the next one, investigatively you do many of the same things. When terrorism has actually occurred, these will seem unremarkable. When it hasn’t, these same tactics will be portrayed as overkill. Completing the vicious cycle, if government becomes less vigilant to avoid being seen as guilty of overkill, it markedly increases the country’s vulnerability to deadly terror attacks. These, you can be certain, will be followed by condemnations from the media (the same people who only yesterday were grousing about Gestapo tactics) and commission investigations castigating the lack of aggressiveness.

It is much harder to prove the crime of providing material support to terrorism than it is to prove terrorism itself. In terrorism cases, the aggrieved are real people who might be your family, your neighbors, your friends. In material support cases, terrorism is often an abstraction happening in some distant venue like Afghanistan or Kashmir or Chechnya or Palestine; nothing close to home has been harmed and yet the jury is asked to find that some overtly innocent activity–like contributing to a charity, engaging in paintball games, or setting up a website–has lain the groundwork for widespread destruction. In terrorism cases, a provocative call for death to the infidels is easily seen as the causative precursor for a murderous attack. In material support cases, it is just as easily portrayed as the vibrant speech that the Founders enshrined and that is a jury’s patriotic duty to protect rather than punish.

Hussayen’s case, in this sense, is important to watch. It was an appropriate case for DOJ to bring: If it is vital for terrorists to be able to use the web to prey on their victims, it is at least equally vital to terrorist disruption that those who would knowingly help them use the web be neutralized. But, like selling guns, leasing cars, and lending money, providing computer technology services is a legal activity that a jury is not likely to regard as shedding its lawful character absent some purposeful nexus between the service provider and actual terrorist activity.

Maybe if Hussayen had been prosecuted in New York, Washington, or Virginia–places where the terrorist threat is more tangibly felt than in Idaho–he’d have been convicted. Maybe if an Idaho trial had been held in June 2002 instead of June 2004, his support services would have been viewed with more alarm. Maybe not. One thing, however, seems clear: The more success the government has in preventing terrorism, the more conjectural the Justice Department’s suspicions will seem, and the tougher it will be to win convictions. We should all pray that John Ashcroft’s job becomes the toughest one in America.

–Andrew C. McCarthy, a former chief assistant U.S. attorney who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is an NRO contributor.


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