Don't Try Terrorists in U.S. Courts

By Gerald Shargel, The Daily Beast - January 6, 2010

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U.S. Marshal's Service / AP Photo Trying the Christmas terror suspect in federal court is a huge mistake. Gerald L. Shargel on why plea bargains are useless when you’re talking to suicide bombers.

Within weeks of the 9/11 attacks, I appeared on a Court TV program hosted by Alan Dershowitz. The professor asked whether I would be willing to defend Osama bin Laden, already identified as the prime suspect in the World Trade Center and Pentagon bombings. We both assumed that the trial would take place in a federal district court. After all, bin Laden was already indicted in federal court in Manhattan, charged with conspiracies to murder, bomb, and maim United States nationals.

Dershowitz and I agreed that representing bin Laden would be an extreme act of patriotism. We would be aiding a process by which the world would see that no matter how uncivilized the perpetrator, America would stick to its values and afford him due process and a fair trial with a defense lawyer zealously committed to protecting his client's rights.

Why would hardened soldiers, quite willing to commit a suicide bombing, politely exchange information for leniency?

In the years following 9/11, I continued to believe that crimes committed on American soil should be prosecuted in a civilian, rather than a military, court. While terrorist defendants may be uncommon criminals, federal penal statutes have been working, in cases involving Zacarias Moussaoui (9/11 conspirator), Richard Reid (shoe bomber), Ramzi Yousef (1993 Trade Center bombing) and Mahmud Abouhalima (1993 Trade Center bombing), as well as many others who have been tried, convicted and sentenced to life, or the equivalent of life, without parole (Abouhalima, 50, is scheduled for release in September 2087).

In the days since Umar Farouk Abdulmutallab's arrest in the Christmas Day plot to blow up Northwest Flight 253, many of my long-held moral and legal assumptions shifted. It's not that I've lost confidence in the ability of the civilian courts to resolve these cases. Rather, prosecuting terrorists who commit crimes against United States nationals, at home or abroad, is a burden that American courts should not have to bear. These terrorist offenders are, in every sense of the word, soldiers. Soldiers in an openly declared holy war against American "infidels." These soldiers, like our soldiers, are highly trained. They too can strip and clean weapons while blindfolded. They too, are experts in explosives and guerrilla tactics. Their skill set is similar to the most elite of our forces. They are tough. Like our CIA agents, they too are required to endure torture so that they may be taught to resist it.

And knowing all this, as our intelligence community must, we are embracing a strategy not much different than the strategy in the "war on drugs" or the "war against the Mafia." Last Sunday, John O. Brennan, the president's deputy national security adviser for counterterrorism and homeland security, told David Gregory, the host of Meet the Press, that "plea bargaining" in a civilian court would result in obtaining valuable information about ongoing terrorist activity. According to Brennan, these terrorist defendants may be willing to trade information for lenient sentences.

It is undeniably true that the threat of long prison sentences has produced countless cooperators who have helped the government and themselves—and, in turn, spurred the collapse of drug cartels (a few) and Mafia families (some). But can it be said with a straight face that this same method would lead to valuable information extracted from terrorist soldiers? Eight years of torture coupled with an open offer of a $25 million reward has failed to produce the capture of Osama bin Laden. So, why would hardened soldiers, quite willing to commit a suicide bombing, politely exchange information for leniency?

And, assuming he were to cooperate, which government official will stand before the American public and announce, for example, that Umar Farouk Abdulmutallab, who nearly killed at least 278 innocent Americans, received a light sentence in return for his cooperation?

View as Single Page 12 Back to Top January 4, 2010 | 11:25pm Facebook | Twitter | Digg |   | Emails | print Umar Farouk Abdulmutallab, Leniency, Federal Courts, Plea Bargain, Terrorism, Zacarias Moussaoui, Alan Dershowitz, Guantanamo Bay, Osama Bin Laden  (–) Show Replies Collapse Replies Sort Up Sort Down sort by date: 123 ligligl

If our judicial system is unable to deal with a confused, deranged boy (have you read his e-mails?) then of what use is it - and the Muslims terrorists are right? Remember Roland Freisler? Don't subvert our system.

Ah, poorr wittle confused soul. Lets put him in rehab. That's what the judicial system does. That doesn't even work for twits like Lindsey Lohan but hey it feels good to try doesn't it? He's not a criminal, he's a damn terrorist. An enemy combatant. The judicial system is not even supposed to handle those. Put him where he belongs and you're not subverting anything. You're facing the reality. Acting like that's distasteful doesn't make you compassionate, it makes you a total fool.

ThinkAgain-You have to understand,maybe people like "ligligl" are SENSITIVE,and want to understand what makes some like Umar tick . . . besides a detonator (pardon the pun).There is a P.C. crowd that believes"We Are The World We are The Children," and we should beunderstanding of a "confused, deranged boy" . . . "boy" as if he werean innocent child who got off on the wrong track.It is time to stop the political correctness and treat theseterrorists as enemy combatants . . . not common criminalsas if they robbed a convenience store.

Don't be silly, no one besides you is saying put him in rehab. It is these false dichotomies that make people like you look so damn idiotic. Nowhere in this article is the possibility that the plea bargain might mean a possibility of parole in 30 years, or opportunity to be in a regular maximum security prison, and not in lockdown 24/7 (with an hour a week alone in a yard). If this clown can give us hard intell on locations, names, etc. and the information pans out, hell yeah give him this kind of plea bargain. I doubt he would take it, but it is possible, the Pakistani terrorist who survived in Mumbai crumbled so this guy might as well. The sad thing about you is you lack imagination, so I suggest you think again.

An enemy combatant? An enemy combantant defies the legal definition of terrorist. You can be one or the other. Not both.

A plea bargain qualifies as imaginative? Wow, that's really thinking outside the ole box there! No wonder these confused 'boys' are outwitting us.

ThinkAgain: I don't think you'll find Richard Reid in rehab.The Bush administration tried him in civilian courts and convicted him.What's the problem with doing this again?

I agree. The shoe bomber was tried in Federal Court and is incarcerated in a maximum security prison so why is it assumed that our judicial system can no longer do what it has done successfully for so many years? Whining about where the underpants bomber is tried is insane. So far, we have had no success in completing the judicial process utilizing military tribunals. Is the goal to see to it that he never come to trial? I understand the cowardly, old, decrepit Cheney's motives in not wanting the current residents of GITMO litigated in Federal Court as during the sentencing phase, Cheney's war crime will all be exposed and one thing you can count on when discussing Cheney is that he is scared. His whole life has been devoted to crimnal behavior and driven by fear.

The reason we have had no success in trying these animals with military tribunals is because of Liberal Trial Lawyers fighting it every step of the way including the AG, Eric Holder, who has incidentally with unmatched chutzpa and hypocrisy, jumped on the band wagon of blaming Bush/Cheney for the delays after his law firm was a key player in manufacturing the delays. mMWNhMzgThe flight 253 bomber should be strung up by his toenails to make him talk. Not claiming his right to remain silent in the judicial system.If people are killed because of information that this piece of shit knows of and has been allowed to keep slilent in the case of a plea bargain, the war criminals will be those liberal policy makers in the current administration, not Bush/Cheney.

For the benefit of other DB readers, I have provided a translation of part of escomments post:"Liberal Trial Lawyers" = following our laws and Constitution"If people are killed because of information that this piece of shit knows of and has been allowed to keep slilent [sic] in the case of a plea bargain"= waterboard the bastardGotta love our DB conservatives! Even if they can't spell or use English correctly.

Won't be long, he'll be appointed to DHS as a consultant and given some posh digs at our expense so BHO can feel warm all over.

Maybe Gerald L. Shargel wants to take this character out behind the woodshed and beat the hell out of him or maybe try s little waterboarding?If the accused cannot be tried in a regular court it is another win for the terrorists showing the that the 'mighty' U.S.A. is not so mighty after all.Of course, using civilian courts means the courts function under the scrutiny of the public whereas military tribunals are stacked against the defendants which endears them so much to the No! Republican Party.Let justice prevail so we can see it all on Court TV to make sure proper procedure is followed.

Daklak,Whether you agree or disagree w/ what this author is saying, it is patently unfair to say he is supporting waterboarding. Open up a Labatts, strap on your hockey skates, and go check some hosers. You need to work on your anger issues.

Justice cannot be seen to be done when the process is hidden from public view.This man claims to be a lawyer; he should be encouraging openess not a process that has been abused for over 8 years and included torture.Finally, look up the meaning of "Maybe" the first word in my post.

A few second of feeling like he's drowning even though he knows he's not is just too much for your sensibilities? I'm sure Al Queda is thrilled to know we've elected a bunch of wusses who don't want to get their hands dirty.

I guess Reagan was a wuss...

How do you get to be a bigger Wuss than the cowardly little draft dodging Dickie Cheney who refused to leave the bunker after 9/11 without a gas mask and accompanied by a personal physician.

Reagan killed a whole pile of Qudafi's family members by blowing his tent to smitherings and effectively ended their participation in this crap. He wasn't a wuss at all. It's not an all or nothing issue. Sometimes force and aggression works, sometimes restraint is more effective and sometimes nothing works. Nobody suggests we should indiscriminately waterboard but ruling it out as if our system is above that is ridiculous. If we can send drones in the dead of night to bomb targets that we know are likely to include civilians, complaining about waterboarding is just political sniping.

After WWII we executed members of the German and Japanese military for torture.... it's not political sniping. It's about having morality to start with, which anyone willing to use torture doesn't. If we use torture, than it's quid pro quo, we no longer have the right to suggest that any other country is morally offensive because it uses torture. What you are in essence saying, and it may not be getting through your thick head that you are, is that you're perfectly fine with our soldiers being tortured.Torturer's are psychopaths, plain and simple; and, as a country, we better be above that.

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