Former AG Michael Mukasey: Terrorist suspects should be tried at Guantanamo

Camp Justice, the legal complex for the U.S. military commissions, at the Guantanamo Bay Naval Base in Cuba.
Camp Justice, the legal complex for the U.S. military commissions, at the Guantanamo Bay Naval Base in Cuba. (Brennan Linsley/associated Press)
By Michael B. Mukasey
Friday, November 6, 2009

Ali Saleh Kahlah al-Marri, who by his own account came to this country most recently in 2001 to help organize a second wave of attacks after the Sept. 11 atrocities, received a jail sentence on Oct. 29 that could free him within six years. This again prompts the question of whether it is wise for the administration to cancel the military trials of those held at Guantanamo Bay and charged with planning the Sept. 11 attacks and, instead, to bring them to the United States to be charged anew and tried in civilian courts.

Marri acted on the direct order of Khalid Sheik Mohammed, the alleged mastermind of Sept. 11 among other accomplishments, to enter the United States not later than Sept. 10, 2001. He entered on a student visa and stayed in touch with his mentor, Mohammed, by cellphone and through coded messages sent via e-mail accounts in fictitious names. Marri used his computer to research the toxicity, availability and price of various cyanide compounds, as well as the location of dams, waterways and tunnels where such compounds could be used with lethal effect.

He was arrested initially in December 2001 for credit-card fraud and later charged with lying to federal agents about his travel and telephone calls. In 2003, President George W. Bush, relying on World War II-era Supreme Court authority, designated Marri an unlawful enemy combatant and ordered him detained in the naval brig at Charleston, S.C. Marri's legal challenge to that detention was about to reach the Supreme Court when he was transferred in February to civilian custody and charged with providing material support for terrorist activities.

The choice of charges is notable. In 1996 and 1998, after prosecutions in civilian courts had revealed gaps in the statutory framework for dealing with such crimes, Congress added provisions to prosecute those who planned or carried out international terrorist acts, with penalties up to "any term of years" -- which is to say, life imprisonment -- or capital punishment if death resulted. Also added was the offense of material support for terrorist activities, crafted for use against those who, though not directly involved in terrorism planning or execution, knowingly provided money or other kinds of assistance to those who were so involved. That offense carried a maximum penalty of 15 years -- severe, but well below the appropriate limit for those directly involved in planning and carrying out mass murder.

Despite the evidence on the hard drive of Marri's computer, other evidence, and the bold statement in the Justice Department press release that accompanied the indictment that the case "shows our resolve to protect the American people and prosecute alleged terrorists to the full extent of the law," Marri was charged not with offenses related directly to terrorism, which could have exposed him to life imprisonment, but, rather, with material support offenses. Marri's guilty plea on April 30 was heralded with a Justice Department press release conceding that "[w]ithout a doubt, this case is a grim reminder of the seriousness of the threat we as a nation still face," but offering the consolation that "it also reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which the nation was founded and the rule of law."

Marri's time in the brig at Charleston apparently was substantially responsible for the judge's decision to impose even less than the 15-year maximum "in order to reflect respect for the law and reflect just punishment." The judge rejected Marri's attempt to portray himself as a lackey -- "that would be an insult to your intelligence and to the commitment you made when you came here as a sleeper agent for al Qaeda" -- and acknowledged that it "remains to be seen" whether Marri would resume that commitment after he was released, but added that "we are defined as a people by how we deal with difficult and unpopular legal issues."

The very transfer of prisoners from Guantanamo to this country has consequences. The question of what constitutional rights may apply to aliens in government custody is unsettled, but it is clear from existing jurisprudence that physical presence in the United States would be a significant, if not a decisive, factor. That presence would generate serious security concerns for any person or place associated with their prosecution or confinement, would facilitate the torrent of lawsuits that several lawyers have promised to bring on detainees' behalf once they come within the jurisdiction of any federal court, and would present those in custody and those yet at large with a cornucopia of valuable information disclosed as part of discovery in criminal cases and during the trial -- all of this notwithstanding the availability of a congressionally created forum in a location that is remote, secure and (agitprop to the contrary notwithstanding) humane.

At the least, those moving this process forward should consider whether the main purpose here is to protect the citizens of this country or to showcase the country's criminal justice system, which has been done before and which failed to impress Khalid Sheik Mohammed, Marri or any of their associates. We should not wish for any future sentencing judge to deal with the specter of recidivism by telling us that that "remains to be seen," or for any future defendant's lawyer to describe, as did Marri's, his client's reaction to the process with what sounds like a wicked parody of the pronouncements that accompanied Marri's indictment, plea and sentence: "His faith in the American justice system and the Constitution were fulfilled."

The writer was U.S. attorney general from 2007 to 2009.

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