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A better path to justice

Posted: March 24, 2013 - 11:06pm

The recent arraignment of Sulaiman abu Ghaith in a New York courtroom was an important moment in the ongoing effort to bring senior al-Qaida figures to justice. But that’s not how everyone saw it.

Critics complain that he should have been taken to Guantanamo to be detained and interrogated there as an enemy combatant. They object to his being tried in the United States as a “common criminal.”

I disagree; the record of our federal criminal courts is unmatched. The Abu Ghaith case is an excellent opportunity to model for the world what American justice looks like, and I have every confidence that federal prosecutors in the Southern District of New York are well-qualified to achieve a conviction, which would likely carry a life sentence.

It’s not as if we lack experience criminally prosecuting terrorists in civilian courts. In fact, our criminal justice system has achieved 438 terrorism-related convictions since 9/11, according to the Department of Justice. Many of them have been in the very Manhattan courthouse where Abu Ghaith will be prosecuted. Among the international terrorists brought to justice in U.S. courtrooms are “Blind Sheik” Omar Abdel Rahman, the “20th Hijacker” Zacarias Moussaoui and “Shoe Bomber” Richard Reid, and they are serving long sentences in maximum security federal prisons.

One compelling reason to try Abu Ghaith in a civilian courtroom is that it could be extremely difficult to prosecute him for conspiracy in the military commission system at Guantanamo. In January, Army Brig. Gen. Mark Martins, the chief prosecutor for the military commissions, said he would not bring conspiracy charges as a stand-alone offense against detainees, because of an October 2012 decision by the U.S. Court of Appeals for the D.C. Circuit in the case of Salim Hamdan, a former driver for Osama bin Laden. The ruling, Martins said, created legal uncertainty about whether conspiracy can be charged as a stand-alone offense for conduct that predates 2006. By comparison, conspiracy charges are common in federal criminal courts.

Critics have also suggested that interrogators at Guantanamo might get more useful intelligence from Abu Ghaith than will come out through the criminal trial process. But in fact, the criminal justice system has been a useful intelligence collection tool. Terrorism defendants in federal court have provided extremely valuable intelligence — including telephone numbers and email addresses used by al-Qaida; information on terrorism recruiting techniques and finances; locations of training camps, safe houses and terrorists; names of operatives involved in past and planned attacks; and details of active plots. Those sent to Guantanamo have far less incentive to talk.

In recent years, the FBI has updated its policies to allow the initial interrogations of terrorists to be conducted without Miranda warnings, under a public safety exception recognized by the courts. But even when Miranda warnings have been provided, skilled interrogators have been able to conduct interviews in ways that provide valuable intelligence. FBI Director Robert Mueller told the Senate Intelligence Committee that reading an alleged terrorist his Miranda rights does not impede the ability of agents to collect intelligence. In fact, Mueller said, “The ability of the criminal justice system to produce intelligence is often overlooked.” He pointed to three specific terrorism cases prosecuted in federal criminal court that “were prominent in terms of providing intelligence.”

Criminal prosecutions also have been shown to be a more efficient way to bring terrorists to justice. Compare that with the military commission system, which has yet to deliver closure to families of 9/11 victims. The five 9/11 co-conspirators at Guantanamo have been arraigned, but their prosecutions have been on hold for years as motions are filed, procedures written and rewritten, and appeals made on a variety of issues.

Even when successful, military commissions have often not resulted in long sentences. Three of the seven terrorists convicted in military commissions since 9/11 have been released from Guantanamo and are free in their home countries of Yemen, Australia and Sudan. A fourth could be released from Guantanamo this year, a fifth is serving the rest of his sentence in Canada, and a sixth case is on appeal. Military commissions certainly have a role in the counter-terrorism legal system, but their use should be limited, not the default option.

Our partners and allies around the world have recognized the strength and legitimacy of the civilian criminal justice system and have cooperated with efforts to bring terrorists to justice in American courts. The same cannot be said of secret detentions or Guantanamo, both of which have sapped the international support the United States needs to continue global counter-terrorism operations.

The George W. Bush administration used federal courts extensively to prosecute terrorists, and so should the Obama administration. For al-Qaida terrorists like Abu Ghaith, the record is clear: Our best chance at bringing this senior al-Qaida figure to justice is the federal court system.

• Feinstein, D-Calif., is the chairwoman of the Senate Intelligence Committee.

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