Dahlia Lithwick has a smartly written essay
this afternoon in Slate on the Justice Department trend towards prosecuting so-called "little fish" in the war on terrorism, and the implications of this trend for justice writ large
. Her ultimate conclusion: that DOJ's decision to lock up the real
terrorists like Khalid Sheikh Mohammed without a trial, while putting the small fries like Sami Omar Al-Hussayen
on trial, does little to further the interests of justice.
The real question at the core of the Al-Hussayen trial is the same question that plagues the other big terror trials that have occurred since 9/11: Is this really the best way to stop terror? It's clear that the Bush administration doesn't believe in open criminal trials for "real" terrorists. That's why accused American citizens like Yaser Esam Hamdi and Jose Padilla are languishing in Navy brigs right now and why a ranking al-Qaida member, accused of planning the 9/11 attacks, Ramzi Binalshibh is still being interrogated in some secret location. It's also clear that the administration is not really all that interested in a fair trial for its 9/11 scapegoat of choice, Zacarias Moussaoui. Long after it became apparent that he was never intended to be the 20th hijacker, Moussaoui's trial remains stalled over the government's insistence on imposing the death penalty. The administration is thus using the civilian courts to try only the low-level conspirators; the "passive supporters," the folks who don't quite rise to the level of terrorist—most of whom are just losers and misanthropes.Analysis
* * *
Because we haven't caught many real terrorists in the act of terrorism since 9/11, and since we won't trust those we have caught to the criminal justice system, we have been left to rely on this "material support" provision to convict numerous individuals, many of whom are Americans. So far, the folks convicted of terror-related offenses have been bit players, as is evidenced by the relatively short sentences they've received. No one would characterize them as perfect innocents—several tried to fight in Afghanistan; some look like members of sleeper cells. But no one can argue—although Attorney General John Ashcroft has certainly tried—that the courts have played a vital role in stopping terror attacks in this country. In exchange for this handful of relatively minor convictions, the Justice Department has condoned outrageous prosecutorial excesses, all to prove that these convictions matter more than they do. A sampling of the major terror convictions since 9/11 highlights the problem ...
: She goes onto cite the cases of the "Detroit Three", the "Lackawanna Six", and the "Portland Seven" (query - why does DOJ use such silly monikers for all these defendants?) to make her point. And I think it's a valid argument. DOJ has put a lot of resources into prosecuting these kinds of individuals for violations of 18 U.S.C. 2339a
, the "material support" statutes. The administration has justified this with the argument that it has been going after inchoate
forms of terrorism -- that is, targeting terror cells in their infant stages before they can develop, mature, and conduct actual attacks. I think
this focus on material support needs to be a part of the DOJ strategy, but I agree with Ms. Lithwick's question -- should it really be the main focus of the administration's legal war on terror?
The administration has advanced a number of arguments for why it should not put a real
terrorist on trial, and it has pointed to the circus trial of Zacarias Moussaoui
as its main evidence for what would happen if it did. The biggest (and most valid, in my opinion) reason is that a trial would interfere with ongoing intelligence collection efforts, both by impeding continued interrogation of the defendant (e.g. Khalid Sheikh Mohammed) and by exposing "sources and methods" used in connection with the defendant. This is a very real concern. But I have to wonder whether this concern is somewhat diminished 12, 18, 24 months after the capture of these terrorists. Moreover, there are strong procedural safeguards in place (collectively codified as the Classified Information Procedures Act
) for dealing with classified material in federal court, and a number of bigtime espionage cases have been conducted without a compromise of "sources and methods". It seems to me that the administration could mitigate these problems if it wanted to. In actuality, it seems to me that the real issue is one of certainty -- the White House and Justice Department don't want to risk an acquittal or hung jury in any of these cases. I'm not sure that's a good enough justification for keeping these cases out of federal court.Stay tuned
-- oral argument is scheduled
in Al-Odah v. United States
for Tuesday, April 20th, before the Supreme Court. Oral argument in Hamdi v. Rumsfeld
and Padilla v. Rumsfeld
is scheduled for Wednesday, April 28th. Each of these cases has the potential to radically change the landscape of the law with respect to terrorism, national security and civil liberties.
For more background on the Al-Odah and Rasul cases (consolidated for argument), see this note
by the lawyers at SCOTUSBlog, complete with links to the lower court decisions and briefs in the case. Also see this Slate essay
by WP Supreme Court reporter Charles Lane on how the issues may be framed in the case.More to follow...