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LAUFMAN: The right way to try foreign terrorists
The transfer to civilian custody of accused al Qaeda operative Nazih Abdul-Hamed al-Ruqai, also known as Abu Anas al-Libi, presents the Obama administration with a high-profile opportunity to demonstrate the efficacy of prosecuting terrorist suspects in the U.S. criminal justice system. It also rebuts critics in Congress who maintain that military commissions at Guantanamo Bay are the only sensible venue for terrorism prosecutions.
Al-Libi, who was captured by U.S. military forces in Libya earlier this month, was indicted in 2000 with 20 other defendants in the Southern District of New York for his reputed role in the 1998 terrorist bombings of the U.S embassies in Tanzania and Kenya. Among other things, the indictment alleges that al-Libi participated in multiple conspiracies related to the bombings, and that he personally conducted visual and photographic surveillance of the U.S. Embassy in Kenya preceding the attack there. He made his initial appearance in federal court on Oct. 15, entering a plea of not guilty.
In proceeding with a criminal prosecution of al-Libi, the Obama administration disregarded calls by members of Congress, such as Sen. Lindsey Graham, South Carolina Republican, and Rep. Mike Rogers, Michigan Republican, chairman of the House Intelligence Committee, to declare al-Libi an enemy combatant and try him before a military commission at Guantanamo Bay, Cuba. With good reason: Over the past few decades — through both Republican and Democratic administrations — the Department of Justice has obtained criminal convictions in scores of terrorism cases throughout the United States, as well as lengthy sentences for convicted defendants. Indeed, successful terrorism prosecutions in the federal courts have now become routine. Yet since 2010, Congress has imposed a ban on using appropriated federal funds to transfer Guantanamo detainees to the United States for prosecution in civilian courts.
The military commission proceedings at Guantanamo Bay, meanwhile, have largely been a failure. To date, only seven defendants have been convicted in military commission proceedings, and two of those convictions later were overturned by federal appellate courts. Self-confessed Sept. 11 mastermind Khalid Shaikh Mohammed and fellow detainees at Guantanamo Bay still have not yet been tried — and currently do not even have a trial date. In addition to protracted procedural delays, the competence and fairness of military commission proceedings have been marred by the mismanagement of Department of Defense computer systems, resulting in the loss of defense attorneys’ case records and the apparent compromise of attorney work-product and attorney-client-privileged communications.
Prosecutors in the criminal justice system also have charging options available to them that the military commissions do not. In federal courts, prosecutors frequently charge defendants in terrorism cases with providing “material support” to terrorists or designated foreign terrorist organizations. Because “material support” for terrorism is not recognized as an international war crime, however, the U.S. Court of Appeals for the District of Columbia Circuit has held that the military commissions have no jurisdiction to adjudicate such offenses.
To be sure, prosecuting terrorism cases in the criminal justice system can present significant challenges for federal prosecutors: determining the scope and nature of information held by U.S. intelligence agencies that may have to be disclosed to the defense in discovery, negotiating with U.S. intelligence agencies regarding the possible use of intelligence information at trial as part of the government’s case-in-chief, and guarding against the unauthorized disclosure of classified information at trial. Not every terrorism case, moreover, is suitable for criminal prosecution, particularly where potential criminal charges would depend too heavily on sensitive intelligence information that cannot be declassified or used at trial.
Contrary to the arguments advanced by those who oppose prosecuting any terrorism offenses in the criminal justice system, civilian courts have proven fully capable of adjudicating terrorism trials without jeopardizing governmental national security interests. The Classified Information Procedures Act, a long-standing federal statute, provides an established mechanism for protecting sensitive intelligence information from improper disclosure, and existing rules of evidence and criminal procedure have enabled the government to present formidable cases at trial. Nor have the security demands of terrorism trials imposed undue burdens on courts or localities where such trials occur.
Keeping the al-Libi case in the criminal justice system was the right decision for the Obama administration. The president should continue to press Congress to lift current legislative restrictions on transferring Guantanamo detainees to the United States for criminal prosecution.
David H. Laufman previously prosecuted terrorism cases as an assistant U.S. attorney in the Eastern District of Virginia and is the principal of the law offices of David H. Laufman PLLC, in Washington, D.C.
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