DoJ Stats for Terrorists Tried in Civilian Criminal Court

A few days ago the Department of Justice released a chart that digests all unsealed terrorism-related prosecutions that have taken place in federal courts from September 11, 2001 to March 18, 2010. The chart accompanies a letter from DoJ to the Senate Judiciary Committee which explains the effectiveness of prosecution under federal law on terrorist activities. It also highlights the fact that since 2001 the federal courts have produced 12 life sentences and 59 other sentences of over 10 years or more in terrorism-related cases. You can read the letter here and view the chart here.

These facts make the federal courts seem like a very effective tool in disrupting terrorist activities. According to the chart there have been 403 successful prosecutions of terrorism-related crimes in less than 9 years.

Goldsmith and Wittes on Civilian vs. Military Courts

With all the recent argument over whether Guantanamo detainees should be tried in civilian or military court Jack Goldsmith of Harvard Law School and Benjamin Wittes from Brookings take a somewhat new angle - the argument isn't worth it. In this Washington Post article Goldsmith and Wittes acknowledge that there are benefits to pursuing trials in civilian court, and dangers about the unknowns of military commissions, but that at this point political capital is wasted on the argument. They suggest that politicians and the public need to accept the reality that we are stuck with many of these Gitmo detainees and that we should focus on "defining the contours of detention" rather than desperately try to figure out how to try all of the detainees.

I respect pragmatism as much as the next guy, but I'm not sure I can just accept Goldsmith and Witte's proposal. What they are saying is that indefinite detention should be accepted with respect to some current Gitmo detainees and, apparently, future captured terrorists as well. I don't believe that is something that we can accept. Even Goldsmith and Wittes admit that "legitimacy" and "historical judgment" are important considerations which civilian trials would provide; however, they come to the conclusion that fighting the alleged reality that many of the remaining detainees won't be tried means that the argument should be conceded. I don't think there is an argument that strikes more at the heart of this country's legal principles than detaining people indefinitely without charge and without trial, therefore I don't believe that the argument should be conceded. I agree that the reality for some detainees already at Gitmo is that they won't be able to be tried. Past bad decisions may have put this country in that paradoxical situation; however, I'm not willing to say that this country should just give up on the argument.

Gitmo 9

In recent politically motivated attacks, conservative pundits and two Republican senators are accusing Obama administration attorneys – dubbed the “Gitmo 9” – of sympathizing with terrorists. The attacks against the attorneys are based on their previous representation of detainees before military commissions at Guantanamo Bay. The accusations are even aimed at Attorney General Holder because his old law firm assisted in the representation even though Holder did not participate in that representation directly.

Keep America Safe, an organization headed by former Vice President Cheney’s daughter Liz Cheney, created an ad that refers to seven of the attorneys as the “Al Qaeda 7" (another name conjured up to refer to these attorneys). In an especially tactless display, the website Investors.com ran an article about the “Gitmo 9” entitled “DOJ: Department of Jihad?”

Republican Senator Chuck Grassley also got in on the action as well saying that recent moves made by the Obama administration with respect to detainees were not “seriously thought through” and insinuated that it was the fault of these attorneys.. Spencer Ackerman, writer for the Washington Independent, points out that Grassley’s comments about these attorneys are particularly hypocritical because they defended detainees before military commissions which Senator Grassley helped start by voting to approve the Military Commissions Act of 2006. Those commissions explicitly required that detainees be provided with a defense. Senator Grassley is now impugning the people who worked within the system he helped to create.

Furthermore, it must be asked where the senator’s outrage was during the Bush years? Top attorneys during that administration dispensed legal advice authorizing torture, indefinite detention, and unrestrained electronic surveillance. All of that advice proved to be unconstitutional and undermined this country’s reputation.

It cannot be said that protecting the rights of those accused of crimes preludes a person from ardently pursuing justice. Before joining the Bush administration Jay Bybee, a top attorney at the Department of Justice, was a federal appellate judge. While on the bench Bybee wrote one opinion releasing a death row inmate because of the poor performance of the inmate’s attorney at trial. He also wrote another opinion throwing out charges against a man accused of downloading child pornography because he believed his Miranda rights were violated. These past pro-defendant decisions did not stop Bybee from aggressively (probably too much so) pursuing terrorists during his time with the Bush administration. It was Bybee who wrote the now infamous “torture memo” that professed to find a legal basis for torture in interrogation.

The sensational notion that current administration attorneys that provided a defense to detainees at Guantanamo Bay somehow makes them soft on terrorism or members of a “jihad,” is pure ignorance. These attacks are so extreme that many Republicans, including Ken Starr, Charles Stimson, and Jeff Sessions, are condeming them. These attorneys provided detainees with the rights that the Constitution, and recent legislative action, guaranteed them. The reason that this country recognizes those rights is not born out of a weak sense of justice, but rather out of a desire to protect individuals against the power of the collective.

Do not forget that not all of those who ended up at Gitmo were actually found to be enemies of the U.S. Over twenty members of a Chinese ethnic minority were held at Gitmo for seven years despite being found not to be enemy combatants. Most of them have now been released thanks to the efforts of the attorneys that represented them. Does that mean that some guilty detainees also receive legal representation? Of course, that is a natural consequence of democratic principles of justice, but it does not mean it is wrong. It is attorneys like the “Gitmo 9” that make the system work and keep it fair for everyone. They should be applauded, not vilified.

Is the Potential for Domestic Terrorism on the Rise

A new report from the Southern Poverty Law Center is noting a rise in the number of anti-government groups, militias, and "patriot" groups. Many of these groups are fueled by racism and hate, and the SPLC cites a rise in immigration over the past decade and the recent election of President Obama as major factors leading to the increase.

This report is more evidence that we need to focus some attention on the entire spectrum of terrorism - including domestic terrorism. A great number of these groups cited in the report probably don't actually pose a serious security risk; however, some very well may and the attacks they carry out have the potential to be as devastating as 9/11. The most famous incident of domestic terrorism, Oklahoma City, ripped the entire face off of a federal building, killed nearly 200 people, and injured another 700. That attack was carried out by a small group that harbored anti-government views. These groups deserve especially close attention because they are made up of American citizens already in the country. They are not comprised of foreign terrorists who can be tracked when they cross international borders, or immediately draw the attention of security services once they are in the U.S.

I don't predict domestic terrorism will become as pervasive a problem as international terrorism, but the results of domestic terrorism could be just as serious. Hypothetical questions pop to mind with respect to how we would respond to a domestic terrorist attack post 9/11. Specifically, will there be an outcry to refuse domestic terrorists rights usually afforded to those arrested for domestic crimes? It's a question I've asked before. Many, mostly Republicans, derided the Obama administration for giving the Christmas Day Bomber constitutional rights which they claimed ruined the opportunity to gather valuable intelligence from him. Would the reaction to a terrorist with the last name of Jones from Texas be the same as the reaction one with the last name of Abdulmutallab from Nigeria?

In this vein, Spencer Ackerman has a great post on his blog about Lindsay Graham's ridiculous attempt to prevent civilian trials for terrorists and Rahm Emanuel's bizarre alliance with him over the issue.

Kiyemba Essentially Killed

This is cross-posted at The Progressive Fix.

On March 23 the Supreme Court was set to hear Kiyemba v. Obama, the most significant case regarding Guantanamo Bay detainees since it decided that detainees had the ability to challenge their detention through use of the constitutional right of habeas corpus. The question before the court inKiyemba was whether if a Gitmo detainee is granted release by a federal court through a habeas corpus challenge the executive branch must let him go him even if it meant releasing them into the United States. Today, the court decided to avoid answering that question and sent Kiyembaback to a lower federal court.

Here’s a brief background of the case. The detainees involved in Kiyemba are members of a Chinese ethnic minority called the Uighurs. U.S. forces captured them at a terrorist training camp in Afghanistan shortly after the beginning of operations there. The Uighurs were training to carry out terrorist attacks against China. They eventually ended up at the U.S. military prison at Guantanamo Bay, and were held there for years despite the fact that they were not deemed to be enemy combatants. They were held because legal constraints prevented the U.S. from transferring them back to China due to the likelihood that they would be tortured — even executed — and the U.S. could not find another suitable country to accept them. The Uighurs filed the Kiyemba suit demanding they be set free even it if meant releasing them into the U.S.

The central issue in Kiyemba is this: What good is the right to challenge detention if there is not also a right to be released from incarceration? It seems logical that when a court decides that a prisoner is not being lawfully held, he is entitled to be released immediately. However, it is not so black and white with the Gitmo detainees.

There are serious concerns over releasing Gitmo detainees on U.S. soil. One is that a court could end up releasing a dangerous detainee because of shaky evidence that couldn’t be used for their prosecution. It has proven difficult for government attorneys to justify the continued detention of some detainees because evidence against them was classified, tainted by questionable interrogation techniques, rests with government operatives still overseas, or is based on questionable statements made by fellow detainees. This means that a dangerous detainee could actually be released into the U.S. because of a lack of reliable evidence to justify their detention.

Another legitimate concern is that even if a detainee was not a danger to the U.S. when they began their incarceration, they are now. As you can imagine, being wrongfully incarcerated by a country for years may lead to some pretty negative feelings toward that country – feelings that could be expressed violently.

Finally, there is the “not in my back yard” argument. No one is going to want former Gitmo detainees in their community. Even though a detainee may not be a legitimate security threat, a volatile situation could be created by citizens that are afraid of or angry at a detainee in their community.

Tackling difficult and complex issues is the Supreme Court’s most important job. Did the court punt on a major issue in this instance? Some might think so, but this case is different — the security concerns involving Gitmo detainees are very real and very serious.

The fact is that there are diplomatic solutions to the problem. In the Uighurs’ case, only five out of the original 22 Uighurs remain at Gitmo. The executive branch has been working hard to relocate them, and had recently persuaded Switzerland to take two of the men. In addition, the other detainees had been offered -– and refused – to be released to the island nation of Palau. The administration argued that those offers changed the circumstances under which the detainees’ challenge was brought in the first place -– an argument with which the court agreed.

By sending it back to the lower court, the Supreme Court forestalled having to rule on a difficult question. Indeed, if the remaining five Uighurs are released to another country, the judicial system will be able to avoid having to make a decision on the case. Once the Kiyemba case is resolved, the executive will have more time to relocate the remaining detainees at Gitmo, and hopefully will be able to right the constitutional ship through diplomatic efforts rather than by judicial order.