June 21, 2011

Speaking to a crowd of lawyers in Washington last week, Attorney General Eric Holder made an audacious claim about the war on terrorism. Overlooking the all-volunteer military force that has heroically battled terrorists and insurgents for nearly a decade, our outstanding intelligence and counterterrorism experts, and many others, Holder asserted that America’s “most effective terror-fighting weapon” is its civilian court system.

These comments insult those who have served on the front lines, but Holder’s clear intent was to justify the Obama administration’s two-year misadventure in treating captured terrorists like common criminals. This is evident most recently in Bowling Green, Ky., where two Iraqi nationals who have admitted to targeting American troops in Iraq were arrested last month.

Waad Ramadan Alwan and Mohanad Shareef Hammadi made their way to the United States from Iraq in 2009 through what appears to be a bureaucratic mistake. Expert intelligence and police work led to the discovery of their violent past and their plans to support their terrorist comrades from the safety of their new home. When they were arrested, they were plotting to equip foreign fighters in Iraq with missile launchers, rocket-propelled grenade launchers, sniper rifles, machine guns and cases of C4 explosives.

The Justice Department says Alwan and Hammadi should be tried in a civilian setting because they were caught here. This is ludicrous. The fact that bureaucrats mistakenly allowed two foreign fighters into the United States does not entitle them to all the rights and privileges of U.S. citizens. If it did, we’d have to grant the same rights and privileges to any foreign fighters who had escaped from the battlefield and illegally entered the United States. Once we knew who they were, our top priority should have been to capture, detain and interrogate them to ensure they could no longer harm Americans.

Outgoing CIA Director Leon Panetta recently estimated that there are 1,000 members of al-Qaeda in Iraq operating in that country. Kentuckians, including the state’s Democratic governor, want to know why two of them are sitting in a Kentucky jail cell instead of the military facility we built for such men at Guantanamo. I called on the Obama administration last week to transfer them. I have not yet received an answer, nor have I heard a good argument as to why Guantanamo is not a superior alternative.

Aside from the propriety of housing and, if necessary, trying enemy combatants such as Alwan and Hammadi in a military setting, the costs and burdens of trying them in a civilian setting are significant. My constituents do not think that civilian judges and jurors in their community should be subjected to the risk of reprisal for participating in a terrorist trial. Nor should the broader community have to shoulder the security costs or inconvenience of such trials.

Consider the trial of Zacarias Moussaoui in Alexandria, before the military commissions legislation was passed. Alexandria’s Democratic mayor summed up residents’ reaction: “We’ve had this experience and it was unpleasant,” he said. “Let someone else have it.” Last year, New Yorkers rejected Holder’s plan to try Sept. 11 mastermind Khalid Sheik Mohammed in a civilian court in Manhattan, with Sen. Chuck Schumer (D) calling the proposal to hold terror trials in New York a “wrongheaded idea.” In April, Holder reversed course and said the trial would be held at Guantanamo.

Like Bowling Green residents, New Yorkers knew that while it may be possible to try terrorists in civilian courtrooms, our overriding goal in such cases should be to prevail in the war against terrorism, not to make a point about the flexibility of our justice system.

Early on, the administration signaled its intent to use conventional law enforcement and courts to deal with unconventional enemies. The problem with this is that the civilian system was never intended to deal with foreign fighters or to gather intelligence in the pursuit of additional terrorists. The confusion surrounding the interrogation of the would-be Christmas Day bomber underscores this. Moreover, the criminal justice system is oriented toward prosecution, while our top priority in battling terrorism should be to find, capture and detain or kill those who would do us harm.

The administration has shown admirable flexibility in making decisions concerning national security and has shown that it is willing, on occasion, to put safety over ideology. President Obama launched a counterinsurgency strategy in Afghanistan, ignored calls to hastily withdraw from Iraq and recently agreed to extend the Patriot Act without weakening its provisions or making them harder to use. He should make the right decision about the treatment of captured enemy combatants.

Guantanamo is uniquely suited to the unconventional threat posed by foreign terrorists. By sending Alwan and Hammadi to Guantanamo, the president could again show his flexibility, make us safer and let Holder know that our civilian courts are off-limits to foreign fighters captured in the war on terrorism.

The writer is the Senate Republican leader.