3/19/10

For months, conservatives have looked desperately for a reality-based argument against bringing terrorists to justice using America's federal courts.  First they said our criminal justice system was unsafe.  When that failed, they moved to arguing that a trial in a federal court would be a propaganda tool for terrorists.  Now, Liz Cheney and Keep America Safe have resorted to peddling ‘urban myths' that federal courts cannot protect America's intelligence secrets.  The reality is that federal courts are one of the most effective instruments in America's counterterrorism arsenal, offering protection for intelligence secrets, leverage to yield actionable intelligence, a superb conviction rate, tough sentences, and a platform for condemning extremism before the entire world.

Federal courts are part of a larger counterterrorism strategy which draws on the military, intelligence and law-enforcement.  This system enjoys bipartisan expert support and has produced results, including the case of David Headley, who yesterday pled guilty to charges of conspiring to plan the 2008 Mumbai attack, as well as Najibullah Zazi, whose case the New York Times called the most significant domestic terror plot since 9/11.  But conservatives have chosen to drag America's national security professionals through the mud, politicizing a vital issue and threatening long-term damage to America's national security.

Conservatives use ‘urban myths' to attack Eric Holder and civilian trials.  This week, Liz Cheney's Keep America Safe continued its craven political assault on our national security professionals.  In testimony before Congress this week, Attorney General Eric Holder said, "these defendants charged with murder would be treated just like any other murder defendants. ... Are they being treated as murderers would be treated? The answer to that question is, yes, they have the same rights that a Charles Manson would have."  Keep America Safe blasted this statement, with Debra Burlingame saying "When he draws analogies like that, that's when he loses people. It appears as if he doesn't know we're at war." 

But the controversy over intelligence secrets is a false one.  Investigating Senator Lindsey Graham's opposition to civilian trials based on "the procedures in the commissions for protecting classified information," Washington Independent reporter Ackerman uncovered that "the revisions to the military commissions approved by Congress last year - with significant input from Graham himself - removed any significant difference between how classified information is handled in military and civilian venues."  Ackerman reports: "The Military Commissions Act of 2009, which set procedure for the revised military commissions, explicitly instructs military judges to look to the civilian rules for protecting classified information, known as the Classified Information Procedures Act, or CIPA. Under the Act's fifth subchapter governing the "construction of provisions" for the ‘protection of classified information,' the text says that ‘the judicial construction of the Classified Information Procedures Act (18 U.S.C. App.) shall be authoritative,' except in certain specific cases that Justice Department officials said are legally arcane."  Joshua Dratel, who took on terrorism cases in the pre-9/11 civilian courts as defense attorney told Ackerman, "Any concern about the treatment of classified information in federal court is a solution in search of a problem."  The ACLU's Chris Anders called conservatives' position "one big urban myth." [Politico, 3/17/10. Washington Independent, 3/11/10]

Federal courts are one of the best tools in America's counterterrorism arsenal. Ken Gude, of the Center for American Progress, writes, "The facts are clear: Criminal courts are a far tougher and more reliable forum for prosecuting terrorists than military commissions."

Federal Courts are the most tested and effective mechanism for trying terrorists. The record of federal courts for trying terrorists, particularly since 9/11, is formidable.  Former Republican Congressman from Oklahoma Mickey Edwards writes: "[Critics] scowl and declare that our American courts will not, or cannot, convict terrorists.  They seem pretty damned certain of that.  Which is weird since nearly 200 terrorists have been convicted in our federal courts in the last nine years (that's 65 times as many as have been convicted by military commissions)." A 2009 report by Human Rights First written by a team of former federal prosecutors found that terror trials in civilian courts had "a conviction rate of 91.121%," and a separate study by NYU's Center on Law and Security, found that New York City courts have a zero acquittal rate for terrorism cases. [Former Congressman Mickey Edwards, 1/05/10. Human Rights First, 7/23/09. NYU, 9/11/08]

Federal courts hand out tougher sentences than military commissions.  As Ken Gude explained, in the few successful prosecutions of terrorists in military commissions, sentences have been significantly lighter.  David Hicks, who faced charges in a military commission similar to those levied against John Walker Lindh in a civilian trial, received a sentence that was only one third Lindh's.  Osama Bin Laden's driver, Salim Hamdan, received only a five-month sentence in military commissions, when Ali Asad Chandia was convicted of essentially the same crime in a federal court and received a 15 year sentence. [Ken Gude, 1/20/10]

America's best legal traditions will "put Jihad on trial."  Writing in the New York Times last year, Council on Foreign Relations counterterrorism expert Steven Simon pushed back on the idea that civilian trials would act as a soapbox for Al Qaeda: "Historically, the public exposure of state-sponsored mass murder or terrorism through a transparent judicial process has strengthened the forces of good and undercut the extremists. The Nuremberg trials were a classic case. And nothing more effectively alerted the world to the danger of genocide than Israel's prosecution in 1961 of Adolf Eichmann, the bureaucrat who engineered the Holocaust." [Steven Simon, 11/18/09]

[Ken Gude, 1/20/10]

Attacks on Holder latest example of conservatives ignoring results in order to drag national security professionals away from the front lines of U.S. counterterrorism efforts.  The Obama administration's counterterrorism policies, which draw on the military, intelligence, and criminal justice arms of the U.S. government, have shown clear results.  Just yesterday, Mumbai plotter David Headley pled guilty in a federal court, after cooperating with federal prosecutors on a range of terror investigations.  And in February, a federal court brought Najibullah Zazi, suspect in what the New York Times called the most significant domestic terror plot since 9/11, to justice.  Despite these and other successes, conservatives have displayed a broad pattern of distorting the facts and disparaging our security institutions - and the men and women who risk their lives to keep us safe - for political gain.

Liz Cheney and Bill Kristol's conservative organization Keep America Safe suggested in one of its videos that lawyers who defended Guantanamo Bay detainees are complicit in terrorism, labeling the DOJ professionals the "Al Qaeda 7" -- a move that a former Bush administration official described as "offensive" and "beyond a cheap shot."

Liz Cheney and Bill Kristol's conservative organization Keep America Safe suggested in one of its videos that lawyers who defended Guantanamo Bay detainees are complicit in terrorism, labeling the DOJ professionals the "Al Qaeda 7" -- a move that a former Bush administration official described as "offensive" and "beyond a cheap shot." 

Senate Minority Leader Mitch McConnell insulted the competency of FBI professionals, saying that Larry King gives a tougher interview than the FBI does when interrogating a terrorism suspect.  Referring to the interrogation of Umar Farouq Abdulmutallab, the underwear bomber, McConnell said, "He was given a 50 minute interrogation, probably Larry King has interrogated people longer and better than that." [Mitch McConnell, 2/4/10]

[WSJ, 3/19/10. Washington Post, 2/23/10. NY Times, 9/24/09]

What We're Reading

For the first time since the fall of the Taliban regime, the U.S. will send reinforcements to Afghanistan's northern Kunduz province, which has lately seen a dramatic Taliban comeback.

Secretary of State Hillary Rodham Clinton and Russia's foreign minister clashed publicly Thursday over an announcement that Russia would complete a nuclear power plant in Iran this summer.

The Pennsylvania woman accused of recruiting men on the Internet to wage jihad in southern Asia and Europe-widely known as ‘Jihad Jane'-pled not guilty Thursday to all counts in federal court in Philadelphia.

The relationship between Secretary of State Hillary Rodham Clinton and President Obama has moved from bitter primary rivals to a professional, even genial partnership.

More than 200 federal, state and local law enforcement officers swept through El Paso, picking up suspected members of the Barrio Azteca gang in a bid to learn who killed three people with ties to the U.S. Consulate in Ciudad Juarez, Mexico, last weekend.

A Chinese newspaper is reporting that Google will leave China by April.

Prime Minister Benjamin Netanyahu of Israel called Secretary of State Hillary Rodham Clinton to propose what he called a package of "mutual confidence building" steps to be taken by Israelis and Palestinians to help restart peace negotiations.

American David Headley, who scouted targets for the deadly 2008 Mumbai terrorist strike, pled guilty to a dozen criminal charges and agreed to help prosecutors and intelligence analysts probing other likely targets overseas.

Germany is leaning towards involving the International Monetary Fund should Greece call for help to stem its budget crisis, a move Berlin hopes would help avoid potential objections from the German constitutional court.

Iranian dissidents say the best way for the U.S. to help their cause is to lift the ban on many online services, which the government has been targeting in an attempt to suppress the movement's communications channels.

Commentary of the Day

Tyler Moselle writes American policymakers should treat counterinsurgency as only one limited option among many in the national security and foreign policy tool box.

Sens. Charles Schumer and Lindsey Graham lay out a plan for immigration reform.

Sebastian Mallaby says Chinese outrage over suggestions that the country manipulates its currency shows that autocracies suffer from gridlock and answer to lobbies, just like democracies.

Follow NSN on Twitter @natsecnet. Follow Democracy Arsenal on Twitter @demarsenal.