Ordered Liberty

Holder Politicizes Terrorism Conviction…to the Benefit of the 9/11 Terrorists

Earlier today, a jury in Manhattan federal court convicted Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith, of al Qaeda’s conspiracy to mass-murder Americans, as well as providing material support to the terror network. I discussed the case here, and Ben Weiser’s report at the New York Times is here.


The result is cause for celebration, including for those of us who can separate public policy disputes from justice in individual cases. I have been arguing for many years that alien enemy combatants should not be given civilian trials, particularly while the war is still ongoing—and while the country certainly does not seem to be on a war footing, we are still have troops in harm’s way, we are still in armed combat against al Qaeda and its allies under a congressional authorization of force, and the Obama administration is still using lethal force against al Qaeda operatives under the laws of war. But regardless of whether I ever succeed in persuading the government on how enemy-combatant terrorists should be treated—the current administration is dead set against my position—I still want the United States to convict culpable terrorists, no matter where the trials happen, civilian or military court. The policy debate is by definition political (in the non-pejorative sense of “political”); but no one should want to see the trials themselves politicized.

Alas, Attorney General Holder cannot help himself. Here is part of the press release he put out after Abu Ghaith’s conviction:

I want to especially note that this verdict has proven that proceedings such as these can safely occur in the city I am proud to call home, as in other locations across our great nation. It was appropriate that this defendant, who publicly rejoiced over the attacks on the World Trade Center, faced trial in the shadow of where those buildings once stood.

We never doubted the ability of our Article III court system to administer justice swiftly in this case, as it has in hundreds of other cases involving terrorism defendants. It would be a good thing for the country if this case has the result of putting that political debate to rest. This outcome vindicates the government’s approach to securing convictions against not only this particular defendant, but also other senior leaders of al Qaeda.


This statement is by turns disingenuous, specious, and improper…which is what we’ve come to expect from Mr. Holder, throughout his Clinton and Obama stints at the Justice Department.

1. No one doubted that this terrorism trial in Manhattan, like the many before it dating back to 1993, would occur safely. The question was whether the heavy expense and burden involved in keeping it safe were worth bearing under circumstances where a perfectly safe trial facility is available at Guantanamo Bay. American taxpayers have spent untold millions to make Gitmo state-of-the-art, holding the trial there would have spared New York City lots of expense and anxiety, and we’d have had the added benefit of compliance with acts of Congress that endorse military commission trials.

2. How strange to point to “the shadow of where those [World Trade Center] buildings once stood”—a jolting reminder that they no longer stand because terrorists destroyed them about two months after the conclusion of another al Qaeda trial in Manhattan (involving four terrorists complicit in the 1998 bombings of U.S. embassies in East Africa).

3. No sensible person questions the capacity of the civilian federal courts to administer justice in terrorism cases. Terrorism trials over the last 20-plus years have been models of due process, and federal judges have generally done a superb job presiding over them. As I reiterated today, the issue has never been whether we could convict culpable terrorists in fair proceedings. The issue involves the national-security downsides of civilian trials for enemy combatants during wartime—very much including the downside that, under due process discovery rules, prosecutors must provide the enemy with lots of our intelligence about the enemy. That is, the national security concerns outweigh the benefit derived from the convictions—but no one doubts that prosecutors can get the convictions.


4. The attorney general speaks of the “swift” administration of justice by civilian federal judges (i.e., “our Article III court system”). Patently, that is a swipe at the slow pace of the military commission system. What Holder neglects to mention is that (a) he and other lawyers who volunteered their services to al Qaeda terrorists did everything in their power to undermine the military commission system while they were in private practice during the Bush years, and then (b) President Obama, with the help of the attorney general and many former terrorist defense lawyers hired by the Obama Justice Department, derailed the military commission system right after taking office—even though the commission system had been endorsed by congressional statute. That is the main reason for the years of delay in cases like the commission trial of Khalid Sheikh Mohammed and other 9/11 conspirators.

5. The attorney general claims there have been civilian prosecutions “in hundreds of other cases involving terrorism defendants.” This is Holder and the Obama administration again playing fast and loose with statistics. As I’ve previously recounted, during the Bush administration, when the Lawyer Left’s jihad included attacking the PATRIOT Act, they chided the Justice Department for inflating terrorism conviction statistics in order to project a false image of effectiveness—counting as “terrorism” a number of cases that did not involve terrorism charges, even if they may have arisen out of terrorism investigations. But after Obama took office and the Lawyer Left took charge of the Justice Department, the mission shifted from attacking the Patriot Act to promoting civilian prosecution as the most effective way to counter terrorists. Thus, they hyper-inflated their terrorism statistics to claim that “hundreds” of terrorists had been convicted. It is a gross exaggeration, but it remains a staple of Holder’s anti-military commission riffs.


6. Holder opines that it would be “good for the country” if Abu Ghaith’s conviction “has the result of putting … to rest” the “political debate” over civilian-versus-military prosecution—a debate that he has misrepresented. Again, at issue is not whether terrorists can be effectively tried and convicted in civilian court; it is whether that strategy best serves our national security. Given that the Justice Department’s ability to win cases is not disputed, DOJ’s winning of a case cannot put the dispute to rest.

7. Holder adds that Abu Ghaith’s conviction “vindicates the government’s approach to securing convictions” against terrorists. This is not just wrong; it is insidious. In the government’s last civilian terrorism prosecution against an al Qaeda enemy combatant—the Ahmed Ghailani case, also in Manhattan—the defendant was acquitted on 284 out of 285 counts. Believe it or not, the Justice Department counts this rout in the win column because Ghailani was sentenced to life-imprisonment on the single count of conviction. But the point is that today’s conviction of Abu Ghaith no more vindicates the government’s civilian-prosecution approach than Ghailani’s 284 acquittals undermine the contention that the Justice Department has an impressive terrorist conviction rate. Again, it’s never been about whether skilled prosecutors can get convictions, particularly when the evidence is as overwhelming as it was against Abu Ghaith.


But Holder couldn’t just leave it at that. He went on to assert that today’s conviction vindicates the Obama administration’s approach against not only Abu Ghaith, “but also other senior leaders of al Qaeda.” Of course, the senior leaders of al Qaeda who are in the government’s custody are Khalid Sheikh Mohammed and the other 9/11 jihadists who are currently facing a military commission at Gitmo.

Holder’s message could not be clearer: The KSM case belongs in civilian court, not in the military justice system. This is nothing new: late last year, the attorney general said that the 9/11 defendants “would be on death row as we speak” if they had been tried in civilian court. Nevertheless, it is highly inappropriate for the attorney general of the United States to make extrajudicial comments that cast aspersions against the military justice system and convey opinions about defendants in a pending case. (Remember how the administration said it couldn’t award Purple Heart medals to the soldiers killed and wounded in the Fort Hood jihadist attack because the implication that Major Nidal Hasan was guilty of terrorism might prejudice his military trial? Yet, Holder now sees no problem in a U.S. attorney general’s pronouncing that the defendants in the 9/11 military trial are so guilty of terrorism they should already have been put to death?)

Holder is giving the 9/11 defendants ammunition to argue that their military commission prosecution should be halted and that they should be transferred to the civilian justice system. Moreover, unlike previous civilian prosecutions, Abu Ghaith’s trial involved al Qaeda’s 9/11 conspiracy; consequently, KSM & Co. can argue—consistent with the views of the attorney general of the United States—that it violates fundamental fairness for the government to subject them to a 9/11 trial under the inferior due process safeguards of military justice when the same government has given a similarly situated al Qaeda defendant charged with exactly the same al Qaeda conspiracy a trial under the heightened due process protections of civilian justice.


A cynic might even say that this was Holder’s game-plan from the moment Abu Ghaith was quietly whisked into the country—unless, of course, a cynic had already said that.

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