Sunday, July 31, 2005

One would hardly know it from the tendentious political speech delivered by federal District Judge John Coughenour Wednesday in sentencing al Qaeda terrorist Ahmed Ressam to 22 years in prison for plotting to bomb Los Angeles International Airport, but the Ressam case shows what is wrong with a strategy of using the courts as our primary means of fighting terror — as the Clinton administration did for eight years. The case also serves as an illustration of the potentially catastrophic consequences to Americans that can result from lax border-enforcement, asylum and welfare policies in countries like France and Canada.

In sentencing Ressam, Judge Coughenour rejected the government’s request for a 35-year sentence; prosecutors had sought to use the threat of more prison time as leverage to persuade Ressam, who has stopped cooperating with the government, to testify against two alleged co-conspirators who plotted with him to bomb the airport at or around Jan. 1, 2000. Ressam had originally faced up to 130 years in prison for his role in what has become known as the “millennium bombing” plot.

Without Ressam’s testimony, it is unlikely that either the British or the Canadian government will extradite either man to the United States. But with credit for time served and good behavior behind bars, Ressam, 38, could be released from prison in as little as 14 years for his role in plotting to murder hundreds if not thousands of Americans and foreign travelers.

To many people, this scenario might seem somewhat troubling, but apparently not to Judge Coughenour, who was too busy congratulating himself and like-minded people to notice. “I would like to convey the message that our system works,” the judge, appointed to the court by President Reagan in 1981, said in sentencing Ressam. The government, he added, did not need “to detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel.” Moreover, “despite the fact that Mr. Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury. Most importantly, all of this occurred in the context of a public trial. There were no secret proceedings.”

Now, to be sure, there will always be cases where it will be necessary to try suspected terrorists in open court. (This is especially true when the accused is an American citizen.) But acknowledging this reality is a far cry from accepting Judge Coughenour’s implicit suggestion that these decisions are little more than morality plays involving good and evil: On one side are the enlightened, virtuous progressives like the judge who understand that trying terrorists in open court is always the right way to go. On the other side, as the judge frames the issue, are backward people like President Bush and many of those who voted for him, who believe that fighting the current war will require us to 1) kill as many terrorists as possible on the battlefield, and 2) capture the rest of the jihadists and interrogate them for as long as necessary at facilities like Guantanamo Bay in order to gain intelligence about future terrorist attacks.

According to Andrew McCarthy, a former assistant U.S. attorney who successfully prosecuted the organization of Sheik Omar Abdel-Rahman a decade ago for its role in bombing the World Trade Center and plotting to bomb other New York landmarks, trying jihadists in court in some instances can be a useful component of a larger anti-terror strategy. But he adds that fighting terrorists this way entails huge risks for American security.

“Trials are an intelligence trove for al Qaeda,” says Mr. McCarthy, a senior fellow with the Foundation for the Defense of Democracies. “The government has to turn over all prior statements as testimony — anything that is potentially exculpatory. It is an unbelievable amount of information that must be turned over: The government gives more than it has to give to stay out of trouble” that will result when a defense attorney complains that the government has not turned over some item he believes might help his client.

Sometimes, as a trial goes forward and prosecutors sense that they are well on their way to winning a conviction in a terrorist case, the incentive to disclose information to defense counsel increases exponentially, as prosecutors — not wanting to take any chance of withholding any piece of evidence that some judge might conclude should have been turned over to defense counsel — relinquish large amounts of intelligence information to terrorists’ attorneys. The “information we turn over tells them substance — means for getting information” about what the terrorists are doing, Mr. McCarthy tells us. “If we have a wiretap, we have to disclose it. That’s shut down. You can sometimes protect this stuff, but not always.”

Ressam’s personal story should also serve to remind us of the dangers that lax immigration and asylum policies in other nations can pose to our own security. After a civil war broke out in Algeria, Ressam’s home country, in 1992, he fled to France, along with other Islamist radicals. He lived there illegally until 1994, picking oranges and working at a tourist resort. Using a fake French passport, he flew to Montreal and requested political asylum. Although his appeal for asylum was rejected, Ressam disappeared and was never deported by Canadian authorities. He created a new identity for himself by stealing someone else’s baptismal certificate and using it to create a fake Canadian passport. While in Canada, Ressam didn’t work. Instead, he supported himself by robbing tourists and pocketing $500 a month in welfare payments he received due to his status as a potential refugee.

In March 1998, Ressam travelled to Afghanistan for terrorist training at camps administered by Osama bin Laden. Eleven months later, he returned to Canada. On Dec. 14, 1999, Ressam was captured in Port Angeles, Washington, after taking a ferry from Victoria, B.C. with 100 pounds of explosives in his car. On April 6, 2001, a federal jury in Los Angeles convicted him on nine counts, including conspiracy to commit an international terrorist act. After his conviction, Ressam began cooperating with prosecutors and testified against an al Qaeda terrorist. But in 2003, Ressam abruptly ended his cooperation. As a result, two of his alleged co-conspirators — one held in Britain and the other in Canada — are unlikely to be extradited to the United States. One of the men, Samir Ait Mohamed, currently held in Vancouver, is also alleged to have discussed arranging a gasoline truck explosion in a Montreal neighborhood he thought to be predominantly Jewish. Because of Mr. Ressam’s unwillingness to testify, he may go free. Unfortunately, Mr. Ressam’s efforts to commit mass murder and his continuing refusal to cooperate with investigators did not move Judge Coughenour to hit the terrorist with a longer, more appropriate prison sentence.

The case of the would-be millennium bomber has also complicated Bill Clinton’s efforts to create a positive political legacy for himself as a leader in the fight against terrorism. Mr. Clinton and senior aides like National Security Adviser Sandy Berger have suggested that heightened vigilance on their part helped prevent Mr. Ressam from committing mass murder. The bipartisan September 11 commission, by contrast, concluded that “it appears the heightened sense of alert at the national level played no role in Ressam’s detention.” The real credit goes to U.S. Customs Inspector Diana Dean, who, observing that Ressam appeared nervous, referred Ressam for a “secondary inspection” that resulted in his capture in Port Angeles.

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