By Daphne Eviatar, Senior Associate, Law and Security
Cross-posted at The Huffington Post
I'll agree with Sen. Lindsey Graham on one thing: "Americans still wait for justice." That's the headline of a column he wrote that ran in the SunNews and other South Carolina newspapers on Monday, lamenting that the U.S. government still hasn't put the plotters of the September 11 terrorist attacks on trial.
But Graham's explanation for why we haven't yet seen justice is actually backwards.
Graham insists that the Obama administration must press forward in prosecuting Khalid Sheikh Mohammed and his alleged co-conspirators in military commissions. But it's the insistence by Graham and others on using an ill-formed and inexperienced commission system to try suspected terrorists that's the cause of the long delay. If the United States had just used the federal justice system we have, which has worked well for the past 200 years, the 9-11 perpetrators would have been tried and sentenced long ago. That's what happened to the plotters of the first attack on the World Trade Center, and to the planners of the US Embassy bombings in East Africa. Instead, the Bush administration decided shortly after the September 11, 2001 terrorist attacks that, not only would it respond militarily against al Qaeda and the Taliban, but that its prosecution of the individual planners of the attacks, all of whom are civilian terrorist thugs, not military leaders of an actual foreign army, must be carried out by the military as well. Never mind that the U.S. military had no experience prosecuting terrorists, while the U.S. federal courts had decades' worth -- plus entire terrorism prosecution units created just for that purpose. And it is that fateful decision by the Bush administration -- and the Obama administration's apparent reluctance to change course now -- that has led to the unconscionable delay in bringing these men to justice that Lindsey Graham is now complaining about.
The military commissions that Senator Graham takes such pride in have convicted only four individuals on terrorist-related charges, mostly for such minor crimes as driving or cooking for an al Qaeda operative. The reason they haven't been more active isn't due to a lack of political will, but a lack of legal authority. The first military commissions created by the Bush administration were declared unconstitutional by the Supreme Court in 2006. The next set of commissions approved by Congress continued to raise serious constitutional problems, including the creation of war crimes that never before existed. The result is that any convictions obtained in these tribunals - which were changed again in 2009 -- are constitutionally suspect and ripe for reversal on appeal. No wonder prosecutors haven't been eager to push through their cases.
The cases that have been successfully prosecuted have for the most part won relatively lenient sentences, largely for the same reason. Thus Salim Hamdan, Osama bin Laden's driver, was sentenced to only five months on top of the time he's already served at Guantanamo Bay. Australian-born terrorist David Hicks was likewise sentenced to only nine months in prison.
By contrast, U.S. federal courts have convicted more than 400 terrorists since September 11, 2001. And with hundreds of years of convictions behind them, the federal courts' criminal prosecutions are not vulnerable to the same legal and constitutional challenges. Convicted terrorists such as Sheik Omar Abdel Rahman, Zacarias Moussaoui, and Richard Reid end up serving long sentences in the United States' highest security prisons. Notwithstanding Lindsey Graham's claims about security, no terrorist has ever escaped.
Indeed, Graham's claims that civilian trials would "create unnecessary legal problems, be incredibly expensive, and put civilian populations at risk" are nonsense. On the other hand, it's an apt criticism of the military commissions. They're not only a thorny legal problem, but also a colossal waste of money, costing about $125 million a year in operating expenses alone. As a result, the United States spends more than $650,000 to detain each of the 176,000 war-on-terror detainees at Gitmo. By contrast, it costs less than $6,000 a year to keep a prisoner in federal detention, according to the Bureau of Prisons.
Meanwhile, as a broad range of current and retired military leaders have acknowledged, the Guantanamo Bay detention camp has become a global liability; its continued operation harms, rather than helps, national security.
It's becoming fashionable in some circles these days to argue that we should just leave Guantanamo open -- as Harvard professor and former Bush administration lawyer Jack Goldsmith recently wrote in the Washington Post and Brookings Institution scholar Benjamin Wittes wrote on his new lawfare blog, calling the focus on Guantanamo a mere "fetish." But there isn't a single reasonable justification for maintaining an offshore prison in a country we don't even talk to. The United States has plenty of ultra-secure prisons that are perfectly capable of confining terrorists in the territorial United States. The Guantanamo prison was created by the Bush administration to evade U.S. law. Although the Supreme Court refused to go along with that plan, the detention center still stands as a symbol of that misguided attempt. And the catalogue of officially-sanctioned abuses that took place there still haunts us. As President Obama noted in his press conference last week, "Al Qaeda operatives still cite Guantanamo as a justification for attacks against the United States." I can't see any reason why the United States should assist al Qaeda with its propoganda and recruitment.
As a former military lawyer, Lindsey Graham is right to respect the longstanding military justice system. But the military commissions are a different matter. Since their creation eight years ago, they've demonstrated repeatedly that they're not up to the task of providing swift and credible justice -- neither for the plotters of the 9/11 attacks, nor for anyone else. It's time for the administration to admit that they're not working and to bring our most notorious terrorists to justice -- in a successful, experienced and legitimate court of law.