U.S. Rep. Doug Lamborn added his voice to those criticizing the White House decision to try suspected 9/11 mastermind Khalid Sheikh Mohammed and other suspected terrorists in a New York City civilian court. In a strongly worded statement issued Monday, the Colorado Springs Republican argued that New York could become a No. 1 target for attacks during the trial, that the terrorists were enemy combatants who would be granted additional rights unnecessarily once brought onto U.S. soil and that the men could radicalize prison populations wherever they might eventually be held.
In conversation with The Colorado Independent, however, the U.S. Department of Justice played down the criticism as overheated and lacking perspective.
Dean Boyd, spokesman for the department’s National Security Division, said these sorts of critiques of the Obama decision are based on a misperception. Many detractors seem to believe that the U.S. justice system has had virtually no related experience to draw on in conducting these trials safely or in housing terrorist prisoners, he said, and that’s clearly not the case. The U.S. has tried and held major terrorists in the past, said Boyd, and elaborate legal and penal procedures have been developed over the course of more than a decade at least.
The difference of opinion is understandable. Analysts across partisan lines agree that in the years after the Sept. 11, 2001, terrorist attacks, the War on Terror came to define policy. The events stretched the country’s legal framework and defense system in unprecedented and controversial ways. Even nearly a year after the Bush administration has left office and nearly a decade after the attacks, it’s difficult to view the Guantanamo prisoners within the criminal continuum and not as arch villains of a separate order– a priocess some analysts are referring to as de-boogeymanification.
Lamborn, however, agrees with fellow conservative politicians and analysts that the suspects should be tried by military tribunals as part of the War on Terror. Indeed, the predictable opposition to the move suggests Obama has made a political as well as a practical move in deciding to try the men in civilian courts, attempting in effect to normalize the matter and to work to move the process along by giving it over to a well-established system where precedent rules. The Bush administration, after all, saw repeated legal setbacks in its handling of terrorism, partly for its aim to set up new rules and procedures at every step — the controversial prison at Guantanamo Bay, Cuba, the new rules for interrogation and the military tribunals chief among them.
In June, John Brennan, a Bush-era a senior CIA official and now President Obama’s assistant for counterterrorism and homeland security, said the president intended to subordinate counterterrorism to “its right and proper place” as a “vital part” of the administration’s national security and foreign policies, but not the lion’s share of them. The June announcement came with news that the administration would also move away from using the phrases “Global War on Terror,” which the administration argued was too inflammatory, hazy and nonstrategic, and “jihad,” which it explained is a legitimate Muslim term that we have come to use in the same distorted way as do terrorists.
Trying these men, Khalid Sheikh Mohammed as well as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri in a civilian court will do the good work of diluting the impression that these men are honorable warriors, Rhode Island U.S. Sen. Jack Reed told Fox news.
Lamborn couldn’t disagree more with the new strategy.
“We should not be treating terrorists who are at war with us as common criminals, but as military enemies. This misguided decision will have long-term implications for the ongoing War on Terrorism,” Lamborn said, using the old term. He expressed frustration that the detainees would be afforded additional constitutional rights “the moment these enemies set foot on American soil.
“If Khalid Sheikh Mohammed and other military enemies from Guantanamo are found guilty in civilian courts, they could be sent to U.S. civilian prisons. The biggest danger we have by putting these terrorists in domestic prisons is the radicalization of other prisoners. I simply do not want these jihadist terrorists mixing with our domestic inmates and recruiting them in their war on America,” Lamborn further said, again using the Bush terminology.
Lamborn’s comments did not come in a vacuum. Former New York City Mayor Rudy Giuliani weighed in with other leading conservative detractors.
“What the Obama administration is telling us loud and clear is that both in substance and reality, the War on Terror from their point of view is over,” Giuliani told Fox News. Mohammad “should be tried in a military tribunal. He is a war criminal. This is an act of war.”
“Reverting to a pre-9/11 approach to fighting terrorism and bringing these dangerous individuals onto U.S. soil needlessly compromises the safety of all Americans,” U.S. Sen. John Cornyn, a Republican from Texas, said over the weekend.
U.S. Rep. Lamar Smith, a Republican from Texas, claimed that both Mohammed and the other defendants would be able to claim protections they are not afforded while not on U.S. soil. He mentioned Miranda rights and Fourth Amendment rights against unreasonable search and seizure.
Jeffrey Toobin, a senior legal analyst for CNN, also criticized the administration.
“Khalid Sheikh Mohammed is the most wanted terrorist in the world. Everyone in the world is going to know precisely where he is at precisely one time. The Foley courthouse could become the focus of a great deal of interest from terrorists. That’s going to take a tremendous security effort.”
The DOJ’s Boyd repeated in the face of such charges that established measures will be followed to ensure safety and security. He said that, on the most basic level, any of the men found guilty would not be allowed to communicate with the prison population.
“There are a number of inmates who have no interaction with other prisoners,” Boyd said, noting that many of the most notorious prisoners associated with terrorism are currently being held in isolated supermax detention units.
“There are more than 200 inmates [held in the U.S. today] who have a history of or nexus to international terrorism, who have been convicted in federal courts, and are now housed securely in Bureau of Prisons facilities, including Sheikh Omar Abdel-Rahman and Ramzi Youssef, convicted in the 1993 World Trade Center bombing and and Zacarias Moussaoui, convicted as a co-conspirator in the Sept. 11 attacks.
“The Guantanamo Bay detainees to be tried in the Southern District of New York will be held in a federal detention facility that includes maximum security units that have securely held terrorism suspects in the past. They will likely be subject to Special Administrative Measures while in detention, as other terrorism defendants held in our federal prisons have been, and would be separate and apart from other prisoners.”
He added that the ability of the Justice Department to safeguard U.S. secret intelligence and the ability to safely hold the detainees during the trial process “had been proven over successive trials in the past.”
Boyd said the detainees would not be entering the U.S. “unless and until we are convinced that they will be held safely and securely in facilities that satisfy all our security concerns and meet all our legal obligations regarding treatment of detainees.”
The department will lean on information gathered by “subject-matter experts in the U.S. Marshals Service, who have extensive experience in risk management, protective investigations and protective response, conducted risk analysis for the federal court venues.”
Boyd told The Colorado Independent that, regardless of the forum, protecting classified information presents challenges in any prosecution. The advantage in this case now, he said, is that “federal courts have a long, successful track record in handling classified evidence and protecting sensitive sources and methods, including in international terrorism cases. The system provided by the Classified Information Procedures Act, or CIPA, for criminal cases prosecuted in federal court has generally worked well in protecting classified information while also ensuring a fair, credible and effective trial.”
“I urge the President to put the safety of American people first as he considers what to do with Guantanamo Bay detainees,” Lamborn said.
Additional members of the Colorado delegation to Washington were unavailable for comment at the time of this report.