Sen. Jeff Sessions, ranking Republican on the Senate Judiciary Committee, who has been trying for months to get the Justice Department to back up Attorney General Holder’s claim that “hundreds” of convicted terrorists are in doing time federal prison, has issued a statement in response to DOJ’s claim that there are 403 terrorists in custody:
The information provided today confirms what Republicans have been saying all along—and removes perhaps the last remaining pillar underneath the Attorney General’s collapsing argument for the civilian trial of Khalid Sheik Mohammed.
It is clear why the Attorney General was so reluctant to provide it.
The Attorney General assured senators that KSM’s trial in New York City was ‘in the best interests of the American people in terms of safety.’ He justified that assertion by claiming that 300 terrorists were already safely convicted and in prison. In other words, the Attorney General was saying we’ve done this 300 times before and we can do it again.
But we now know this is simply not true. The great majority of the terrorism cases cited by the Attorney General are in no way comparable to KSM’s case. Most of the convictions in this list are for far lesser offenses, such as document fraud and immigration violations, while only a small handful concern conduct even remotely similar to a mass-casualty terrorist attack. And none are on the level of KSM, who masterminded 9/11.
Among the cases cited is that of Zaccarias Moussaoui, which was fraught with procedural problems, delays, appeals, risks to classified evidence, and even a lone holdout juror who spared the 20th hijacker the death penalty. Due to gaps in federal law, many of the problems prosecutors encountered in the Moussaoui trial will be experienced in future terrorism trials. In fact, just this week, the Justice Department finally conceded that, contrary to the prior assertions of the Attorney General, military commissions have better safeguards than the criminal justice system to protect classified material.
The figures released today also contradict the Attorney General’s claims on the Christmas Day Bomber: two of the terrorists on this list were placed in military custody precisely because the criminal justice system severely limits our ability to gather intelligence.
Moreover, the overwhelming bulk of these cases are for acts committed by U.S. citizens—which KSM and the Christmas Bomber are not—and occurred before military commissions became fully operational in 2008.
It is simply disingenuous for the Attorney General to argue that these cases demonstrate that captured enemy combatants, as classified under the 2009 Military Commissions Act, are better tried in civilian rather than military court.
Military commissions are consistent with our laws, history, security, and values, yet there were zero military commission proceedings in 2009. There is no remaining excuse for the administration to continue rejecting them.