Politics & Policy

A Mistake, Not a Model

In the wake of the Zazi episode, Holder caricatures the opposition to civilian trials for enemy combatants.

After last Friday night’s bad-news dump about the end of DOJ’s witch hunt against Bush-administration lawyers, you might have thought it impossible for our attorney general to outdo himself. But the redoubtable Eric Holder was right back at it on Monday. He convened a press conference to depict a botched investigation as a model for future counterterrorism and to proclaim this purported triumph as a vindication of the civilian justice system against accusations that had never been made.

The occasion for this bizarre performance was the guilty plea of Najibullah Zazi, entered in Brooklyn federal court. You may recall Zazi as the al-Qaeda-trained would-be bomber who targeted New York City last year on the anniversary of 9/11. (See here and here.) The case should have been a great coup for law enforcement. Alas, investigators interviewed an untrustworthy source, who promptly alerted Zazi that he was under surveillance. Zazi folded up the plot and skipped town. The other players — and there were several — vanished before agents could identify them. Zazi was finally arrested after refusing to give up his co-jihadists despite several days of questioning. That is, the government was left with a case against Zazi alone, having failed to identify, much less round up, the other terrorists.

Zazi has now, six months later, pleaded guilty. This is a good thing, and Holder was right to celebrate it. Hopefully, it will mean we can now compel the terrorist to tell us what he knows about the other terrorists — although one recalls that when the Justice Department tried to compel convicted terrorist Sami al-Arian to tell us what he knows about other terrorists, Yale law student Rashad Hussain complained that al-Arian was being persecuted — after which the president first hired Hussain as a top staffer and then promoted him to be the administration’s envoy to the Organization of the Islamic Conference.

In any event, the positive development of Zazi’s guilty plea does not transform the case into a model. To the contrary, it remains a screw-up.

Don’t get me wrong here. The civilian justice system hardly has the market cornered on screw-ups. There are plenty of them in the military justice system, too — just as there are in intelligence-gathering efforts, and in all human endeavors. Any prosecutor who tells you he’s never screwed up either is lying or was not good enough to be trusted with a challenging case. In a fast-moving investigation, it is always a tough call whether to approach a shady source: Will he break the case wide open, or will he destroy it? Here, investigators rolled the dice and it came up snake-eyes. It was a forgivable bad call — we’d much rather see our officials make aggressive mistakes than be caught asleep at the switch. But it was still a mistake.

But while the mistake does not condemn the civilian justice system, neither does the guilty plea establish anything conclusive about the effectiveness of the system. Even less does it demonstrate the system’s overall effectiveness against international terrorism.

If I were of a mind to demagogue the matter, as Holder seems determined to do, I suppose I could argue that, because law-enforcement tactics cost us the chance to identify potential terrorists, the Zazi episode shows it is foolhardy to rely on law enforcement. That, however, wouldn’t be true. The FBI did its usual stellar job. It wasn’t the bureau’s fault that another agency jumped the gun. If that hadn’t happened, the Feebs could very well have nabbed seven or eight terrorists red-handed. Next time, it’ll be done right, they’ll have better luck, and no one will be cheering louder than I.

And here is where Holder truly grates. Evidently, it is not enough for him to put the best face on a botched case, as any attorney general would do. He can’t just say, with the right mix of pride and humility, “Hey, it wasn’t pretty, but we stopped the bombing from happening, and now, with this plea, we have a better chance of catching the terrorists who got away six months ago.” No, he can’t help himself: Not only is the screw-up to be understood as law enforcement at its finest, Holder spins the episode, in the words of the Associated Press, to “rebut Republican critics who have said the Democratic administration should try such suspects before military tribunals rather than through civilian courts.” “To take this tool out of our hands” and “to denigrate this tool,” the attorney general declared, “flies in the face of facts and is more about politics than it is about facts.”

When the most political attorney general in history accuses others of playing politics, you know he is projecting his own flaws. After a year, that’s what we’ve come to expect. Almost as depressing, though, is that there’s no subtlety in Holder’s politicking. It’s transparently asinine.

Nobody is “trying to take this tool out of our hands.” Nobody is saying terrorism cases should never be tried in the civilian courts. The point of Bush counterterrorism was to correct the ineffective Clinton model, which treated international terrorism only as a crime, to be handled as such in all cases. It grossly oversimplifies the matter to say that the pre-9/11 error was to prosecute terrorism cases in civilian court. Rather, the error lay in (a) believing that we were dealing with mere crimes rather than a war, (b) therefore believing that all facets of terrorism, including atrocious acts of war, were fit for civilian prosecution, and (c) concluding that we could deter our enemies and protect our citizens with nothing more than civilian prosecution.

It does not “denigrate this tool” to acknowledge that civilian prosecution cannot be the point of the counterterrorism spear. That civilian prosecution should have a subordinate role does not mean it has an unimportant role. It is crucial. Nor does providing alternatives to civilian prosecution denigrate the Justice Department. Before the Obama administration pulled the plug on military commissions, Justice Department lawyers were making invaluable contributions to military-court proceedings. If we were to design a new system for addressing national-security cases, the Justice Department would be front and center in its creation and its operation. This is about learning from our past and designing the optimal approach. It is not about “denigrating” a “tool” that usually, but not always, works quite well.

In fact, we should want lots of terrorism cases — indeed, most terrorism cases — to be tried in civilian courts. The idea, though, is that these should be the cases that break up terrorist cells and plots before they materialize into mass-murder attacks. You can’t have a strategy that prevents massacres unless you aggressively use the civilian courts and the very strong Clinton-era anti-terrorism statutes to prosecute early-stage conspiracies like the Zazi episode. (Although it’s also worth noting that, if Zazi had been designated an enemy combatant and interrogated, we could have had the beans he is now spilling six months ago.) You must also exploit the same laws to hound people who provide material support to terrorist organizations — although, speaking of denigrating an important tool, the attorney general neglects to mention that President Obama is undermining the material-support laws by pandering to Islamist activists who grouse about crackdowns on Muslim “charitable” giving.

No one ever said such cases should not be tried in civilian court. Moreover, no one is saying that terrorism cases involving jihadist cells radicalized in the United States don’t belong in civilian court — at least presumptively. While those cells are usually inspired by al-Qaeda and its ideology, they are not actually affiliated with the terror network. That means they can be prosecuted in civilian court without risking disclosures of classified information about al-Qaeda that should be avoided during wartime.

The dispute here primarily involves alien enemy combatants affiliated with al-Qaeda who are captured in the act of carrying out, or after carrying out, acts of war against the United States. They are war criminals and should be treated as such. That means trial by the military commissions authorized by Congress, unless and until we come up with something better. And when such operatives are captured in the United States, they should be designated as enemy combatants and interrogated — without the obstructions of defense lawyers and complications of plea bargaining — until we are confident we don’t need them anymore. At that point, a decision can be made about whether they should be referred for a military or a civilian trial.

To grasp the perversity of cloaking the most atrocious alien war criminals in the majesty of the Bill of Rights — to understand that doing so rewards the very targeting of civilians that international humanitarian law seeks to discourage — is not to oppose all, or even most, civilian terrorism prosecutions. Coming to grips with reality does not disparage the dedicated efforts, day in and day out, of Justice Department prosecutors, FBI agents, and other federal and state police. Many of us were supporting that work, and doing it, while Mr. Holder was helping terrorists get pardons, accusing the United States of war crimes, and working at a firm that volunteered to serve our nation’s enemies free of charge.

Our goal must be to recognize what civilian justice can’t accomplish — how’s that 1998 indictment of Osama bin Laden working out? — while fully appreciating what it must accomplish if we are to remain secure. That will give us the right policy. We won’t get there by pretending that mistakes are models and portraying law enforcement’s friends as law enforcement’s foes.

National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).

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