Right-wing media are criticizing the Obama administration for bringing Ahmed Abu Khattala, the alleged leader of the Benghazi attacks, to trial in a U.S. criminal court. But federal civilian courts have proven significantly more successful at convicting terrorists than military commissions, give terrorists tougher sentences, deprive terror suspects of the "honor" of being considered enemy combatants, and do not prevent the gathering of intelligence.
Suspected Leader Of Benghazi Attack Captured, Will Face Trial In Federal Court
Wash. Post: Alleged Benghazi Ringleader Ahmed Abu Khattala Captured In Secret Raid. The Washington Post reported on June 17 that the suspected leader of the 2012 attack on the U.S. diplomatic outpost in Benghazi, Ahmed Abu Khattala, has been captured by U.S. Special Operations forces:
One of the suspected ringleaders of the 2012 terrorist attacks in Benghazi that killed four Americans, Abu Khattala is the first of the alleged perpetrators to be apprehended. He now awaits a transfer to the United States and a federal trial in the District.
U.S. officials said the joint Special Operations and FBI mission had been planned for months and was approved by President Obama on Friday. The Pentagon said that there were no civilian or other casualties and that all involved U.S. personnel had safely left Libya. [The Washington Post, 6/17/14]
Politico: Khattala Will Be Interrogated On U.S. Ship Before Facing Charges In Federal Criminal Court. According to Politico, Khattala will be tried in a civilian court in the United States:
The alleged perpetrator of the Benghazi attacks seized in Libya by a U.S. military and law enforcement team will face charges in federal criminal court, Obama administration officials made clear Tuesday, rebuffing suggestions from Republican lawmakers for a military trial at Guantanamo.
The handling of Ahmed Abu Khatallah is likely to unfold according to an established administration script followed in other terrorism cases: he'll be interrogated for several days, likely aboard a U.S. ship, and then brought to the United States for a trial in a civilian court. [Politico, 6/17/14]
Conservative Media Reject Plan To Try Khattala In Civilian Court
Wall Street Journal: Khattala Is "An Ideal Candidate For Guantanamo." In a June 17 editorial headlined "An Ideal Candidate for Guantanamo," the Wall Street Journal argued that, as an "illegal combatant," Khattala deserves "to be treated according to the rules of war" and should not be tried in a civilian court. The Journal held that Khattala does not deserve an attorney or the legal protections of the U.S. court system but is, as its headline read, "An Ideal Candidate For Guantanamo":
But not every detainee breaks down or cooperates quickly, and one reason for sending Mr. Khattalah to Gitmo would be to see what secrets he is willing to reveal over time and before he gets a white-shoe defense attorney and is read Miranda rights he doesn't deserve.
Mr. Obama desperately wants to close Gitmo to fulfill a campaign promise, but Mr. Khattalah reminds us why we still need it. The civilian justice system is intended to protect defendants who are innocent until proven guilty. Illegal combatants are trying to kill the innocent and they deserve to be treated according to the rules of war. [The Wall Street Journal, 6/17/14]
Fox's Megyn Kelly: Why Is Khattala Being Tried Like "Any Common Criminal?" Fox News host Megyn Kelly objected to the idea of Khattala standing trial in a U.S. court, suggesting that he doesn't deserve to be treated like "any criminal that's arrested off the streets of Detroit":
KELLY: Ahmed Abu Khattala is now on his way to the United States for a potential trial in Washington, D.C. just like any common criminal would be. Why?
KELLY: Now the guy's going to be Mirandized at some point. He's going to assert his rights. The administration points out that we've done this with other terrorists, and it's worked out okay. The Times Square bomber, the underwear bomber. Both of those guys were here in the United States. They weren't captured in Libya. But they're dragging this guy back here to face a trial the same as any, you know, criminal that's arrested off the streets of Detroit would be brought into federal court. [Fox News, The Kelly File, 6/17/14]
National Review Online: Guantanamo Commissions Were "Designed For Men Like Khattala." The National Review Online's Tim Rogan argued that Khattala should be sent to Guantanamo's military commission rather than a civilian court because the lumbering bureaucracy of the American the legal process is "fundamentally incompatible" with the need for quick action in response to the threat of terrorism:
First, the evidence requirements of a civilian trial are fundamentally incompatible with the urgent terrorist threat we face. Consider that it took the U.S. over a year to detain Khatallah. Why? Because, as Eli Lake notes, the Justice Department was struggling to gather evidence for a civilian trial. And so, while American bureaucracy lumbered, Khatallah remained on the battlefield.
That's why the Guantanamo commissions are specifically designed for men like Khatallah. And that's why Guantanamo is where Khatallah should be heading. We need the courage to face these enemies as they are: not a few criminals, but a global movement of totalitarians dedicated to our destruction. Putting transnational Salafi-Jihadists in a civilian court is not a testament to American strength. Rather it's a choice born of strategic delusion. [National Review Online, 6/18/14]
Fox's Steve Doocy: Khattala "Shouldn't Be Taken To A Federal Courthouse." On June 18, Fox & Friends co-host Steve Doocy parroted the conservative argument that Khattala should be taken to Guantanamo Bay and not tried in a civilian court:
DOOCY: We should point out that there are a lot of Republicans who say this is exactly the wrong way to do it. He shouldn't be taken to a federal courthouse in Washington, D.C. He should be hauled down to Gitmo where we could interrogate him and keep him. But a National Security Council spokesperson said since day one of the Obama administration, not one additional person has been added to Gitmo and we're not going to take anybody else down there right now. [Fox News, Fox & Friends, 6/18/14]
But Civilian Courts Are More Effective In Prosecuting Terrorists Than Military Commissions
Human Rights First: Civilian Criminal Courts Have Convicted 500 Terrorists, Military Commissions Have Only Convicted Eight. A fact sheet from Human Rights First noted that significantly more terrorists have been successfully convicted in civilian criminal courts than by military commissions:
Federal civilian criminal courts have convicted nearly 500 individuals on terrorism-related charges since 9/11. Military commissions have convicted only eight. Federal court convictions include those resulting from investigations of terrorist acts and of criminal acts by those with an identified link to international terrorism. [Human Rights First, accessed 6/18/14]
Center For American Progress: Civilian Courts Are Tougher On Suspected Terrorists. Senior fellow for the Center for American Progress Ken Gude called the military commissions system "shockingly poor" and explained that criminal courts "are a far tougher and more reliable forum for prosecuting terrorists than military commissions" that and give harsher sentences (emphasis added):
Military commissions give terrorists short sentences
It's a near universal presumption that military commissions are the "tougher" forum for prosecuting suspected terrorists, but the experience since their formation in 2001 shows the opposite. Two of the three individuals convicted in military commissions are already out of prison living freely in their home countries of Australia and Yemen.
Australian David Hicks was the first person convicted in a military commission when he entered into a plea agreement on material support for terrorism charges in March 2007. He was given a nine-month sentence, which he mostly served back at home in Australia. Hamdan--convicted by a military jury of material support for terrorism--received a five-month sentence and was sent back to his home in Yemen to serve the final months before being released in January 2009.
The only person convicted in a military commission that remains in jail is Ali al-Bahlul. Bahlul was Al Qaeda's top propagandist and video maker and was charged with soliciting murder and material support for terrorism. Bahlul, however, only received his life sentence after he boycotted the entire trial process and was convicted without mounting a defense.
The most surprising feature of the military commissions is their leniency. The lesson to defendants seems to be to participate in your defense and you will be set free.
Criminal courts hand out tougher sentences than military commissions
The sample size of military commissions' sentences is very small, but there are some analogous cases in the criminal justice system to compare the length of sentences in the two forums. The allegations against David Hicks in a military trial were quite similar to those leveled against John Walker Lindh--the so-called American Taliban--in a criminal court, while comparable charges to the material support for terrorism conviction for Salim Hadman can also be found in criminal courts.
Hicks pleaded guilty to the charge of material support for terrorism with the underlying allegations that he trained at an Al Qaeda camp in Afghanistan and that he was an armed participant in numerous engagements with American and Northern Alliance forces. Lindh pleaded guilty to serving in the Taliban army and carrying weapons. Hicks received a nine-month sentence while Lindh got 20 years. Even if all of the time Hicks served prior to his plea bargain is counted, his total time in custody was only six years, less than one-third of the sentence Lindh received.
Hamdan was convicted of providing material support for terrorism for being Osama bin Laden's chauffer. In 2006, Ali Asad Chandia was convicted in a criminal court of material support for terrorism for driving a member of Pakistani extremist group Lashkar-e-Taibi from Washington National Airport and helping him ship packages containing paintball equipment back to Pakistan. Hamdan received a five-month sentence while Chandia got 15 years. Even if all of the time Hamdan served prior to his conviction in a military commission is counted, his total time in custody would be only eight years.
At most, Osama bin Laden's driver got a little more than half the sentence from a military commission that a criminal court doled out to someone for driving a low-level Pakistani extremist. [Center for American Progress, 1/20/10]
Fmr. U.S. National Counterterrorism Director: "We haven't had Anyone Convicted In A Tribunal Whose Conviction Wasn't Ultimately Overturned." On MSNBC's Morning Joe, NBC National Security Analyst Michael Leiter, who also served National Counterterrorism Director under Presidents George W. Bush and President Obama, argued that civilian courts "do a better job of convicting people" and give tougher sentences. He also noted military tribunal convictions are typically overturned upon appeal (emphasis added):
LEITER: I think if we look at the record, federal courts have actually done thus far a much better job of convicting people and giving people longer sentences for terrorism than the military tribunals are. Now, we can blame that on how the military tribunals are set up, bad law and the like. But the fact is the federal courts have worked really well for this and the military tribunals haven't. We haven't had anyone convicted in a tribunal whose conviction was not ultimately overturned by an appeals court. So, the federal courts I think are a pretty good system. From the intelligence community perspective, the important thing is that he's interrogated, the important thing is that that he's not immediately turned over to a lawyer and quiets down. And that is not what is happening in this case. [MSNBC, Morning Joe, 6/18/14]
Human Rights Watch: Terrorists Consider Military Trial A "Badge Of Honor." As Human Rights Watch noted, terrorists "enjoy the heightened status associated with being an 'enemy combatant,'" and treating them like common criminals strips them of that supposed honor:
Finally, using the civilian criminal justice system serves the additional value of treating terrorists as the common criminals they are. Terrorists, having political motivations, enjoy the heightened status associated with being an "enemy combatant." When Khalid Sheikh Mohammed appeared before a Combatant Status Review Tribunal at Guantanamo Bay, he wore the label of combatant proudly, comparing himself to George Washington and saying that had Washington been captured by the British, he, too, would have been deemed an "enemy combatant." Treating terrorists as criminals strips them of that badge of honor. [Human Rights Watch, 11/16/08]
DOJ: Criminal Justice System Has Provided "Extremely Valuable" Intelligence While Successfully Prosecuting Terrorists. A Department of Justice fact sheet argued that the "criminal justice system provides powerful incentives for suspects to provide accurate, reliable information" while successfully prosecuting terrorism suspects:
The criminal justice system has been the source of extremely valuable intelligence on al-Qaeda and other terrorist organizations. The criminal justice system provides powerful incentives for suspects to provide accurate, reliable information, and the Department of Justice and FBI work closely with the rest of the intelligence community to maximize information and intelligence obtained from each cooperator.
Hundreds of terrorism suspects have been successfully prosecuted in federal court since 9/11. Today, there are more than 300 international or domestic terrorists incarcerated in U.S. federal prison facilities. Events over the past year demonstrate the continuing value of federal courts in combating terrorism. In 2009, there were more defendants charged with terrorism violations in federal court than in any year since 9/11. [Department of Justice, 1/26/10]