With all the excitement over health care, you might not have noticed that the Obama administration still doesn’t know what to do with Khalid Sheikh Mohammed. And in recent days, its case for trying the mastermind of 9/11 in civilian court has quietly fallen apart.
When Attorney General Eric Holder first decided to send KSM to federal court in Manhattan, his reasoning was simple. “We know that we can prosecute terrorists in our federal courts safely and securely because we have been doing so for years,” Holder told the Senate Judiciary Committee last November. “There are more than 300 convicted international and domestic terrorists currently in Bureau of Prisons custody including those responsible for the 1993 World Trade Center bombing and the attacks on embassies in Africa.”
It sounds convincing — until you ask about those 300 convicted terrorists. Who are they? Are they big-time terrorists of the KSM variety — the kind Republicans believe should be tried by military commissions — or are they defendants guilty of less serious offenses who can reasonably be tried in civilian courts?
Republican Sen. Jon Kyl was skeptical from the start. “It’s a disingenuous argument,” Kyl told me in February. “There haven’t been 300 high-profile, dangerous terrorism cases in the United States — if there were, we would have heard about them.”
Kyl peppered Holder with questions, and now, finally, he has some answers. Late last week, the Justice Department sent Congress a lengthy chart listing the names and offenses of 403 defendants convicted in terrorism-related cases between September 11, 2001, and this month. To the administration’s defenders, it’s case closed: See, there really were all those terrorism cases, just like the attorney general said. To more critically minded observers, the chart raises serious questions about the administration’s argument.
The department divides terrorism cases into two groups. The first group involves “violations of federal statues that are directly related to international terrorism” — that is, laws prohibiting terrorist acts themselves, the use of weapons of mass destruction, providing material support for terrorism, and the like. The second group involves lesser offenses, like immigration violations, that may or may not be closely related to international terrorism.
Most of the offenses on the list — 245, or about 60 percent — are of the second sort. That leaves 158 cases in the first, more serious group, and 92 of them involved providing material support for terrorism, like writing a check to a foundation found to have supported terrorist acts. All told, 337 out of the 403 would be perfectly appropriate cases for civilian courts.
“For the bulk of the cases that he’s talking about, there’s no question that [civilian] courts are the appropriate venue, because they are relatively minor offenses,” Kyl told me Monday by phone from Vienna, Austria, where he’s been on a terrorism fact-finding trip that included stops in Qatar and Yemen. “It’s for the major kind of terrorist offenses that you want to go to military commissions.”
Even in the final 66 cases, purportedly the most serious, there are examples of prosecutions of “animal-rights terrorists” and “narcoterrorism” — not exactly comparable with KSM. And the best example of a comparable case — the trial of Zacarias Moussaoui — was one in which the civilian system was strained nearly to the breaking point.
It’s an understatement to say Republicans are unhappy about Holder’s chart. In an effort to prove that the civilian system can handle cases like KSM, the Justice Department has come up with a crazy mix of irrelevant examples. “It’s as if we asked how many apples do you have, and they realized they only had a handful of apples, so they dumped in a barrel of oranges and said we have so much fruit,” says one Senate GOP aide.
Republicans don’t want to be misunderstood. They believe it is absolutely vital to prosecute terrorism-related cases, and they are pleased the Justice Department has done so. They just don’t believe those cases are in any way comparable with the trial of Khalid Sheikh Mohammed and in no way support the argument that KSM should be tried in civilian court.
Holder is scheduled to appear before the Judiciary Committee on April 14. I asked Kyl what he hopes to learn. “I don’t know,” he sighed. “You really have to work at it to get anything useful from the attorney general.”
Byron York, the Washington Examiner’s chief political correspondent, can be contacted at [email protected]. His column appears on Tuesday and Friday, and his stories and blog posts appears on www.ExaminerPolitics.com ExaminerPolitics.com.
