Politics & Policy

How Should Terrorists Be Tried?

Neither military commissions nor civilian courts are right for the job, but a compromise option is there for the taking.

Omar Khadr is an al-Qaeda terrorist who killed one American soldier and maimed another. In a military-commission proceeding, he was permitted to plead guilty in a deal that capped his sentence at a mere eight years. We must say “capped” because the agreement provides for Khadr to be returned very soon to his native Canada.

In Canada, the law is very favorable to convicts who commit their offenses as juveniles. Khadr, who is now 24, was 15 when he threw the fateful grenade. On Canadian soil, his incarceration will be governed by Canadian law, not the U.S. military-commission sentence. The likelihood is that the terrorist will be released in a year or two: an unrepentant jihadist hero still plenty young enough for another decade or three of plotting against Americans.

Of course, the slap on the wrist Khadr got seems draconian compared with a military commission’s handling of Salim Hamdan, a bodyguard and confidant of Osama bin Laden. After years of helping the al-Qaeda chief run his network, Hamdan was captured in possession of missiles intended for use against American troops. Military prosecutors asked for a 30-year term. The commission instead meted out a stunning five-and-a-half-year sentence — resulting in Hamdan’s release and repatriation, since he had already spent more than five years in custody.

It’s worth remembering these disgraceful results while we listen to the heated commentary over this week’s verdict in the civilian terrorism trial of Ahmed Ghailani. Yes, the terrorist was acquitted on 284 of the 285 charges arising out of al-Qaeda’s 1998 bombings of American embassies in Kenya and Tanzania. Nevertheless, on the one count of conviction, conspiracy to blow up government buildings, he faces a mandatory minimum of 20 years imprisonment. More importantly, the high likelihood is that a life sentence will be imposed.

There are terrible downsides to using the civilian justice system to prosecute our wartime enemies. There are also compelling historical, statutory, and human-rights reasons not to do it. But those of us who oppose trying enemy combatants in civilian federal courts must honestly acknowledge that federal judges have exhibited a far more sober and serious approach to terrorists than have their military counterparts.

Yes, a civilian trial is an intelligence bounty for the enemy — a function of due-process rules designed for the benefit of American citizens, who are presumed innocent. And yes, the civilian justice system is extremely limited in what it can accomplish. Terrorists plot their mayhem in overseas redoubts, where American law does not apply and American law-enforcement cannot operate. That’s why bin Laden, to take the most prominent example, has been able to orchestrate a string of atrocities throughout the dozen years he’s been under U.S. indictment.

Civilian due process obstructs the government from presenting its best case against these worst offenders, as happened in the Ghailani case when a key witness was suppressed. Civilian justice is something of a crapshoot in that a well-presented prosecution case can be derailed by a single loopy juror, as also happened in Ghailani. As a statutory matter, Congress has enacted military commissions for enemy combatants — a strong statement by the people’s representatives that our civilian courts should be closed to our enemies during wartime. From a human-rights perspective, moreover, it is perverse to reward alien mass murderers with the enhanced due process of civilian courts — with the same rights as the Americans they kill. Our jihadist enemies are not entitled to that treatment; their atrocious methods flout international standards that are designed to protect civilians.

Still, all that said, when terrorists are brought to civilian court, they are convicted and they are slammed. The 1993 World Trade Center bombers received jail terms of hundreds of years each. In my prosecution against the Blind Sheikh (Omar Abdel Rahman) and eleven subordinates from his terror cell — the cell that carried out the Trade Center bombing and plotted an even more ambitious (but unsuccessful) attack against New York City landmarks — the top terrorists were sentenced to life imprisonment. The least culpable among them, who barely made it into the conspiracy, was smacked with a 25-year term.

In case after case, terrorists have been convicted. The convictions have been upheld because of the skillfulness of the presiding judges, and those judges have slammed the jihadists. One needn’t agree with the judiciary’s expanding role in national-security matters (I certainly don’t) to acknowledge this truth. The previously convicted embassy bombers got life. And I expect Ahmed Ghailani will get similar treatment from Judge Lewis Kaplan. The terrorists prosecuted in civilian court make up only a paltry percentage of the terrorists who threaten us, and the civilian system cannot do more than that. But the convicts will never kill Americans, or anyone else, again. You can’t confidently say that about Omar Khadr.

This is not a plea on behalf of civilian trials. Having been deeply involved in the process, I’ve seen its downsides. They are too perilous to overlook. But that is no rationale for the paeans to military commissions we’re hearing this week. What would you think if Ghailani had been convicted on all 285 counts but a judge had responded by giving him a sentence like the eight-year term the military judge imposed in the Khadr case? I imagine we’d all prefer a conviction on one count before a civilian federal judge who would give him life.

I don’t enjoy writing this. Like many conservatives concerned about national security, I had high hopes for the military-commission system. When the Left attacked it, I countered that we should let it work and judge it by its performance. Well, it has now performed. It is not an abject failure by any means, but it has been a disappointment. For years, we’ve exhaustively catalogued the disadvantages of civilian prosecution, even though accused terrorists have been responsibly sentenced. But military justice has come up short, and that must not be overlooked.

Here’s the point: We are beating on each other to no good purpose. Civilian-justice proponents grossly understate the security challenges posed by civilian trials. They also glide past a brewing scandal: detention proceedings (habeas corpus cases) in which judges, with no guidance from Congress, have ordered the release of terrorists who should be held. By contrast, the military-justice camp conveniently omits the appalling sentences and quirky rulings that system has produced. In the meantime, Obama-administration officials are now indicating that the president may have soured on trials altogether. There is talk of simply detaining Khalid Sheikh Mohammed and the other 9/11 plotters indefinitely.

Some thoughtful commentators have endorsed this approach, which is entirely valid under the laws of war. I can’t agree, however, for practical reasons.

Indefinite detention is permitted during wartime only until the conclusion of hostilities. It is true enough that we will be fighting al-Qaeda for a very long time. But let’s face it: The Obama administration is about to pull all remaining forces out of Iraq, and it won’t be long before they follow suit in Afghanistan. That won’t end the al-Qaeda threat, but many on the Left will argue that it ends the war — and there are at least some judges who will agree with them.

What happens if, in 2015, all American troops are brought home, the political class announces that the war is over, and the ACLU and CAIR start screaming that the laws of war no longer support indefinite detention? If that argument gains traction, and I think it will, our choice will be to release the worst terrorists or try them. Obviously, that’s really not a choice at all: If our only way of keeping them on ice is to have trials, then that is what we will do. But by then, the trials will be much more difficult. Years will have elapsed, witness memories will have faded, leads will long have grown stale. And yet, because al-Qaeda will still be a threat, the same downsides to civilian prosecution that exist today will still exist.

There is a better answer, and it is one the Obama administration and a more Republican, more national-security-conscious Congress can accomplish. We can finally stop talking past each other and create a national-security court system that melds the best elements of military and civilian justice.

We can protect classified information, streamline charges, lower admissibility-of-evidence standards, and endow terrorists with rights that are fair (in the sense of insuring the integrity of trial results) but that do not equal the constitutional rights of American citizens. Simultaneously, we can tap the experience and professionalism of our accomplished federal judges while our similarly talented Justice Department prosecutors work side by side with top military prosecutors.

Civilian judges could be assigned to the new court by the chief justice, just as the Foreign Intelligence Surveillance Court is now staffed. To prevent judges from inflating due-process protections, as they have liberty to do in the civilian system, Congress can prescribe exacting rules. Lawmakers can include a direction that terrorist defendants are not entitled to any rights, privileges, or protections not explicitly spelled out in the legislation. Government prosecutors can be given the power to appeal instantly if a trial judge suppresses evidence, dismisses counts, or tries to grant accused terrorists benefits beyond what Congress has enacted.

We could get pending and future terrorism cases done. We could get them out of our civilian justice system, so that precedents in cases involving alien mass murderers do not undermine the protections our system rightly affords to Americans. And the independence of civilian federal judges — a separate branch of government — will attract more cooperation from our allies (the countries where terrorists operate), who are reluctant to work with a military justice system under the unilateral control of the executive branch.

In short, it is a needed compromise, and it is there for the taking.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.


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