Attorney General Eric Holder’s decision to rely on the U.S. civilian criminal justice system to try most suspected terrorists is supported by the George W. Bush administration’s record of doing the same.
Let’s look at the facts (derived from the must-read article by Jane Mayer in The New Yorker’s Feb. 15 issue
First, without exception, every previous terrorist suspect apprehended inside the country has been handled as a civilian criminal. Since 2001, mostly under the Bush administration, the criminal courts have convicted about 150 suspects on terrorism charges, according to the New York University Center for Law and Security.
Zacarias Moussaoui, who planned to be a participant in the Sept. 11 attacks before he was caught ahead of time, was tried by the Bush administration Justice Department in Virginia federal court and sentenced to life.
Where were today’s critics back then? The hypocrisy is breathtaking in ignoring this example. After Moussaoui was convicted, U.S. Attorney Rudy Giuliani, one of Holder’s most outspoken critics today, said: “I was in awe of our system. It does demonstrate that we can give people a fair trial.”
And what of the record of military-tribunal trials of suspected terrorists during the previous administration?
Of the three cases adjudicated in military tribunals at Guantánamo during the Bush administration, one defendant received a life sentence after boycotting his own trial; the second, Salim Hamdan, a Yemeni who worked as Osama bin Laden’s driver, served only six months beyond the time already served at Gitmo and is now at liberty; and a third, David Hicks, an Australian who attended al-Qaida training camp, is now free as well, striking a plea bargain and serving just nine months.
Or compare two similarly situated cases, both suspected terrorists captured in Afghanistan in 2001, as reported by Mayer. One, John Walker Lindh, pleaded guilty in a U.S. civilian criminal court and is now serving 20 years in prison; the second, Yaser Hamdi, was declared an “enemy combatant” and held in military detention without charge in 2004. But after a federal court challenge, he was freed and is now in Saudi Arabia.
I believe Holder got it right when he told Mayer: “The question of [a commitment to] justice . . . that’s toughness . . . we’ll fight our enemies, and we’ll do that which is necessary, and we won’t turn our backs on the values and traditions that have made this country great. That is what is tough.”
In short, there should be no trade-off between being “tough” on suspected terrorists and trying them in the U.S. criminal justice system of which we should be so proud.
Those who suggest otherwise do an injustice to our criminal justice system and ignore the facts and experiences of the Bush administration. They also ignore the fact that the Founders of our republic also saw no trade-off between convicting the guilty and guaranteeing the principles of due process and the rule of law.
Lanny Davis, a Washington, D.C., attorney, was special counsel to President Clinton in 1996-98 and a member of President Bush’s Privacy and Civil Liberties Oversight Board in 2006-07. He is the author of “Scandal: How ‘Gotcha’ Politics Is Destroying America” (Palgrave Macmillan, 2006.).
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