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Tuesday, August 21, 2007

Court is not for terrorists

In today's New York Times, attorney Kelly Anne Moore argues that al-Qaeda detainees currently being held at Guantanamo Bay, Cuba, should be taken to court. Moore is actually arguing against taking terrorists to a special tribunal established solely to deal with terrorism. Apparently, the idea of dealing with terrorists outside an ordinary court of law has not occurred to her:
Proponents of such a system say that terrorism cases are too complex for ordinary federal courts. In particular, they argue that the federal courts are overburdened and too limited by the procedural guarantees of the Constitution to handle evidence without compromising intelligence sources and methods.

Nothing could be further from the truth. The United States does not need a new and untested detention system for terrorists. The existing federal system has a proven track record of dealing with complex prosecutions.
Moore, a former prosecutor, goes on to discuss her own experience:
As a former federal prosecutor who worked on terrorism-related cases, I have had firsthand experience doing just what proponents of a national-security court say is impossible. In 2005, I prosecuted two Yemeni citizens who conspired to send money from Brooklyn to members of Al Qaeda and Hamas to support terrorist activities. Sheik Mohammed Ali Hassan al-Moayad, the main defendant in the case, boasted that he had met Osama bin Laden and previously sent both Al Qaeda and Hamas millions of dollars in assistance.

The evidence gathered against Sheik Moayad and his co-conspirator, Mohammed Mohsen Yahya Zayed, included documents obtained in Afghanistan, Yemen and Croatia, evidence gathered from sources in Britain and Israel, and electronic surveillance of a hotel room in Germany where the two men were staying in early 2003. They were ultimately arrested in Germany and extradited. During the extensive investigation, the F.B.I. worked closely and cooperatively with law enforcement and intelligence agencies from around the world.

The prosecution was difficult, to be sure. Some of our evidence was excluded. Certain classified evidence had to be declassified for use at trial. And we had to win a motion to protect information related to the methods and operations of German law enforcement before critical German agents were permitted to testify in an American court.

In the end, much of our evidence was admitted, the court handled sensitive information issues, and the jury heard the testimony it needed to convict the two men. Sheik Moayad, who was 57 at the time, was sentenced to 75 years in prison. Mr. Zayed was sentenced to 45 years.

Their address today is the Florence “supermax” prison in Colorado, the same prison where federal prosecutors sent Ramzi Yousef, the man who organized the 1993 World Trade Center bombing.


The use of classified information to obtain convictions in terrorism cases does not need to be the extreme hurdle it is often made out to be. Frequently, evidence obtained abroad is classified “secret” or “top secret” as an initial matter, but it can be declassified for use in a federal trial at the request of the prosecutor, after a more thorough examination.

Evidence that truly needs to remain classified for national security purposes generally can be protected in federal court through the use of the Classified Information Procedures Act. Under this law, prosecutors can apply to the court to prevent the disclosure of the means, methods and sources through which information was obtained or, alternatively, to permit only the defense and the jury to see classified evidence at trial while preventing that evidence from becoming part of the public record.
From the country that probably has more experience dealing with terrorists than any other country in the world, I have to say no for several reasons. But first, please allow me to point out that most terrorists in Israel are not prosecuted in the civil court system. They are prosecuted in military courts, where proceedings are less open, and the rules of evidence are more relaxed. Israel has no jury trials, a complication that makes trying terrorists in an American court even more complicated. And when we find terrorists in the act of carrying out a terror attack, we don't wait for trials: we try to kill them before they can kill innocent civilians.

Moore apparently doesn't realize that there are thousands of terrorists out there. There is likely limitless money to defend them, and hundreds of attorneys across the United States who would be happy to work for 'the cause.' Ms. Moore doesn't say how long the trial of her two terrorists lasted, but I'll bet it was more than a week. Is that how the US - and Israel for that matter - should be spending government resources? On making sure that non-citizen terrorists who tried but failed to be mass murderers (or perhaps even were mass murderers) get a 'fair trial'?

When the 'hidden' Al-Qaeda and Hezbullah cells start popping up all over the US (as is likely to happen some day), it will be impossible for American courts to do anything else if they have to deal with all the trials of terrorists who are caught. Terrorists are combatants albeit for non-state actors. They should be treated as such.


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