What’s so hard about trying terrorists? by mattsteinglass
May 27, 2009, 8:40 am
Filed under: Human Rights and Torture, Terrorism, United States

Clive Crook is usually a lot smarter than this:

The Democratic party’s civil libertarians seem to believe that several medium-sized US cities would be a reasonable price to pay for insisting on ordinary criminal trials for terrorist suspects.

This is really dumb. In the near term, there is no risk that “several medium-sized US cities” will be destroyed by terrorists. In the long term, decades and such, the likelihood of a US city being destroyed in a terrorist attack does not depend in any substantial degree on whether or not the particular people currently in custody at Guantanamo and elsewhere in the US’s preventive detention system are released. The risk is that some percentage of same — about 10%, if we actually believe the US Defense Department, and I see no reason to — will “return to the battlefield”. “The battlefield” here is Iraq and Af-Pak.

But here’s my main question: what exactly is so hard about getting terrorists convicted in American courts? Under US law, even “providing material aid” to any “terrorist organization” is a felony. I mean, come on — the US can try university professors for “material aid” to a “terrorist” organization for recruiting donations to a Palestinian political and charity group that was not, at the time, considered a terrorist organization. How hard is it, really, to convict someone picked up “on the battlefield” in Afghanistan of having “provided material support” to the Taliban? This is US Code Title 18, Part I, Chapter 113B:

§ 2339B. Providing material support or resources to designated foreign terrorist organizations

(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. 

Now, I think this law is overbroad. (Here’s Georgetown constitutional law professor David Cole detailing the reasons he thinks it’s unconstitutional. Cole: “President Clinton used IEEPA to label a U.S. citizen a ‘specially designated terrorist’ without hearing, notice, or trial, and then to subject him to a kind of internal banishment, in which it is a crime for anyone else in the United States to provide him with anything of value.” And so on.) 

But it’s on the books. And are you seriously telling me that the Bush Administration’s torture regime has so thoroughly bolloxed the entirety of the evidence regarding detainees at Gitmo that we can no longer even prove they were doing anything to support any group on the State Department’s list of terrorist organizations? Any such group whose actions have resulted in “the death of any person”? If we can’t prove that about these guys, what are they doing in prison?


5 Comments so far
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Interesting point. Al Capone went down for tax evasion. I’m sure Eliot Ness was a little disappointed he didn’t nail him for murder, but heck, it’s better than nothing.

Comment by AC

“But here’s my main question: what exactly is so hard about getting terrorists convicted in American courts?”

Because those terrorists are part of a lager picture that most choose not too look at. Plus, Americans assume that “things” are under control all the time everywhere. Just because something hasn’t recently been destroyed on our soil doesn’t mean that it is OK for it to happen elsewhere. In places our technology and armies cannot reach. I think the news conglomerates have put many people into a false sense that, “if something happens somewhere you will know about it because we are the news, we have it all covered. BS!
The lack of conviction’s is bigger than the ‘law’.

Comment by VJ

Exactly. I could see how it would be hard to convict an Afghani taxi driver of being a terrorist, but those are exactly the kind of people who shouldn’t even be in prison. Meanwhile, I find it hard to imagine that any of the real hard core terrorists that we actually do have in custody, Kalid Sheik Muhammad and such, could not be convicted by a jury of 12 American citizens. Just the testimony of the CIA or FBI agents who arrested them before they were tortured would be enough to convict.

Jose Padilla and John Walker Lindh were convicted with a bunch of really crappy evidence, surely most of these Gitmo guys have stronger cases against them.

Comment by Existenz

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It’s probably proof that (a) only a very few people in Gitmo have done anything aside from being in front of a bounty hunter who wanted US $$$$ (or in the zone of a US sweep, done by troops who don’t know what’s going on), (b) only a very few people in Gitmo have jack sh*t for evidence against them, (c) everybody in Gitmo has been tortured, despite lack of evidence – or rather, *because* of lack of evidence. And by ‘torture’, I mean the sort of stuff that would shock the consciences of even many Republicans (especially when they realize that it’s not *terrorists* being tortured, but random schmucks).

Comment by Barry

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