Marco Rubio, the hard-core conservative vying to become Florida’s next Republican senator, brought the house down at the Conservative Political Action Conference (CPAC) last week [Feb. 18] by calling for prosecuting terrorists in military tribunals instead of civilian courts. But the audience might not have been so enthusiastic if Rubio had told them the record since 9/11: nearly 200 al Qaeda- or Taliban-related terrorism convictions in federal courts and only three in the military commissions operating at Guantanamo.
Rubio is one of many Republicans rooting for military over civilian trials in terrorism cases with blatant disregard of the successful criminal prosecution of terrorists during the Bush administration. Their number includes former Vice President Dick Cheney, who argued for wider use of military tribunals while in office only to be overruled by President Bush. The Bush Justice Department in fact touted its “considerable success” in prosecuting and incarcerating terrorists in September 2008, on the seventh anniversary of the 2001 attacks.
The newfound criticism of civilian prosecutions is driven by two Obama administration decisions: Attorney General Eric Holder’s decision in November to try Khalid Sheikh Mohammed (KSM), the alleged mastermind of the 9/11 attacks, in a federal court in New York City; and the joint law enforcement decision to arrest Umar Farouk Abdulmutallab, the Christmas Day bomber, and treat him as an ordinary criminal suspect with all that entails including Miranda warnings.
Both of those decisions are open for debate. It should be noted, however, that New York Mayor Michael Bloomberg initially welcomed bringing KSM and the other alleged 9/11 conspirators to justice within a mile of ground zero. Only later did he become concerned about the expense and risks of a high-profile trial in Lower Manhattan.
As for Abdulmutallab, the Republicans’ earlier complaint that the Nigerian was Mirandized just 55 minutes after his arrest appears to be inaccurate. The detailed timetable released by the administration shows that Abdulmutallab was questioned for 50 minutes without being advised of his rights and gave useful information before being taken away for surgery. After the four-hour procedure, Abdumutallab decided to stop talking. Only then was he given Miranda warnings. And, now, he is talking after being given a lawyer and hearing from family members in Nigeria who were visited by FBI agents.
Neither of those two controversies directly implicates the question whether civilian courts or military tribunals are the best forum to prosecute people for aiding al Qaeda or the Taliban against the United States. The Republicans’ demand to treat suspected terrorists as “enemy combatants” in military tribunals sounds tough and resonates not only with conservatives but also with the general public. A poll by CNN three days after Holder’s announcement in November found that 60 percent favored trying KSM in a military tribunal.
Public opinion would almost certainly change if people read two comprehensive reports on terrorism-related prosecutions since 9/11 one written by two former federal prosecutors for the group Human Rights First; the other by researchers at New York University Law School’s Center on Law and Security. Both reports, available here and here, say flatly that criminal prosecutions have been successful despite the difficulties inherent in the court system.
A quick clarification about numbers. The NYU study uses a catch-all methodology to count 523 terrorism convictions since 9/11. President Obama once used a figure of 300. Republicans attacked that number, but, as NPR’s Ari Shapiro pointed out, the figure came from the Bush Justice Department. The most useful figure, however, comes from the two ex-prosecutors, who counted 195 defendants convicted of at least one count in an al Qaeda- or Taliban-related case. With 19 acquittals or dismissals, the conviction rate is 91 percent.
Some of the convictions came in prominent cases: Zacarias Moussaoui, the so-called 20th hijacker; the Lackawanna Six, an al Qaeda “sleeper” cell; and the Liberty City Six, five of them convicted for plotting to blow up the Sears Tower. Eleven defendants got life sentences; prison terms for others averaged a little over eight years. The few major setbacks, according to report co-author James Benjamin, stemmed from garden-variety trial errors instead of any systemic weakness in using civilian court.
By contrast, the military commissions have “underperformed,” according to Brookings Institution expert Benjamin Wittes. Only three defendants have been convicted: David Hicks, the so-called Australian Taliban; Salim Ahmed Hamdan, Osama bin Laden’s driver; and Ali Hamza Ahmad Suliman al Bahlul, an al Qaeda filmmaker and propagandist.
Hicks and Hamdan are both free after being given relatively minimal sentences; Bahlul received a life term. But Hamdan and Bahlul are appealing their convictions on the ground that the offense charged material support of terrorism cannot be tried in the military system because it is not a traditional war crime. If they prevail and the legal issue is close that very effective prosecutorial tool would be available only in civilian courts, not in the military commissions.
` The GOP criticism of civilian trials is “silly,” according to Wittes. Like the Obama administration, he would not rule out the use of military commissions. But “any responsible administration” would look first to civilian courts, Wittes says, because of “their much richer history of cases being prosecuted successfully.”