Criminal Trials Work: The Case of the Would-Be New York Subway Bomber

February 23, 2010  |  Posted by Danielle Belton

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Military commissions don't work. If you thought they worked you're off to a pretty bad week. First, on Sunday, General Colin Powell came out in favor of stateside, criminal trials for Gitmo detainees and other terrorism suspects. Then, on Monday, Najibullah Zazi, the would-be subway bomber in New York, plead guilty, in a U.S. criminal court, to terrorism charges.

Zazi, despite being accused of attempting to blow up the New York subway transit system and being an Afghan immigrant, was never held at Guantanamo and his trial was peacefully held in New York City where he was tried as a criminal in our federal courts. Further proof that federal courts work.

Federal courts are the bedrock of our Constitution. They prevail where military commissions fail. Routinely beset with legal problems and challenges, military commissions have only convicted three suspects since 2001. Proving that by using federal courts we aren't just talking about promoting some lofty principle, but it's about keeping us safe and delivering justice. 

While in federal custody, prosecutors were able to utilize methods that a military commission couldn't -- like working with immigration officials to threaten deportation of Zazi's mother -- to get the suspect to cooperate. It was a win for the federal system and our way of justice. And it was further proof that right wing opposition to terrorism trials in the U.S. is about politics, not justice.

From The Washington Post:

Zazi agreed to plead guilty to three criminal charges and to share information about confederates overseas. Attorney General Eric H. Holder Jr. said the deal demonstrated anew the ability of the U.S. court system to dispense justice to terrorists.

"In this case, as it has in so many other cases, the criminal justice system has proved to be an invaluable weapon for disrupting plots and incapacitating terrorists, one that works in concert with the intelligence community and our military," Holder said at a news conference.

Law enforcement sources, speaking on the condition of anonymity because the investigation continues, said Zazi began to accelerate his cooperation after authorities charged his Afghan-born father with crimes and threatened to charge his mother with immigration offenses -- options that are not available in the military justice system.

Powell was very blunt in his feelings about stateside, criminal trials. As in, they should happen.

Said Powell on CBS's Face the Nation:

In eight years the military commissions have put three people on trial. Two of them served relatively short sentences and are free. One guy is in jail. Meanwhile the federal courts, our Article 3 regular legal court system has put dozens of terrorists in jail. They’re fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn’t borne out by the history of the military commission.

Right wingers could try to argue against Powell's statement, but the only inaccuracy there is that Powell understated how successful our federal system is. Instead of dozens, more than 300 people have been convicted as terrorists since 2001 in the federal criminal system.

And earlier that same day, Gen. David Petraeus spoke out against torture and reiterated that the prison at Guantanamo Bay should be closed on NBC's Meet the Press:

"I have always been on the record, in fact, since 2003, with the concept of living our values. And I think that whenever we've perhaps taken expedient measures, they've turned around and bitten us in the backside. We decided early on, in the 101st airborne division, we just said, we decided to obey the Geneva Conventions...

"In the cases where that is not true [where torture takes place or international human rights groups aren't granted access to detention sites] we end up paying a price for it, ultimately," he added. "Abu Ghraib and other situations like that are non biodegradable. They don't go away. The enemy continues to beat you with them like a stick.... Beyond that, frankly, we have found that the use of interrogation methods in the army field manual that was given the force of law by Congress, that that works."

And they're not the only one's talking. On Feb. 20, ex-CIA General Counsel John Rizzo told a group of Ohio attorneys that the creation of the military commissions was always political.

From The Toledo Blade:

"This whole process has been political from the beginning and it is going to remain political," Mr. Rizzo told lawyers and judges at the University of Toledo college of law.

Mr. Rizzo, who left the CIA last year after a 34-year career with the agency, was on a panel that addressed revisions enacted last year to the Military Commissions Act.

"Many of the key decisions that have been made and that are going to be made are going to be based largely on political considerations," he said.

Mr. Rizzo said the trial process was developed without consulting the CIA or seeking input from the agency, and that political indecisiveness and bureaucratic inertia have dramatically slowed the prosecution of terrorism cases.

Here's a weapon that the president and members of Congress can use to fight back -- it's called "the truth." The truth that criminal trials for terrorism suspects work. The case of the would-be subway bomber demonstrates that. Gen. Colin Powell agrees that trying Khalid Sheikh Mohammed in a criminal court is the best idea. Gen. Petraeus STILL believes in the rule of law and that we should close the prison at Guantanamo Bay. And an ex-CIA official is shedding light on the politicization of military commissions. Yet you still have Republicans, like South Carolina Sen. Lindsey Graham, threatening to cut any funding for stateside trials. Why? Why would he push for a system that doesn't work? Politics.

From The Washington Post:

"To take this tool out of our hands, to denigrate this tool flies in the face of facts and is more about politics than it is about facts," Holder said. Holder is opposing a bill introduced by Sen. Lindsey Graham, R-S.C., joined by about half the Senate's Republicans and a few Democrats, that would prohibit any of the conspirators charged in the Sept. 11, 2001, terror attacks from being tried in civilian courts.

Neither Sen. Graham, nor any other Republicans were in the streets protesting Zazi's trial. A matter of fact, they've had nothing to say about the trial at all. And why would they? It doesn't fit their political narrative. Criminal trials are supposed to be bad (accept for the glaring fact that they work) and military commissions are supposed to be good (even though they've been beset with legal problems from the start and have only convicted three people since 2001) and Guantanamo is supposed to stay open (even if the experts say it should be closed).

The President and members of Congress need to tell the story of how our justice system works. Polls have shown that many people are misinformed about military commissions. They don't know or don't realize how poorly they've performed in prosecuting terrorists. They don't know or don't realize that most detainees at Guantanamo Bay have been released because of lack of evidence or misinformation. Right wingers are counting on the ignorance of many to manipulate them into believing in a military tribunal system that doesn't deliver results. Federal courts do.

Said AG Eric Holder in The New York Times:

"In this case, as it has been in so many other ones, the criminal justice system has proved to be an invaluable weapon for disrupting plots and incapacitating terrorists, one that works in concert with our intelligence community and in concert with our military. We will continue to use it to protect the American people from terrorism. As I have stated on other occasions, the criminal justice system also contains powerful incentives to induce pleas that yield long sentences and that gain intelligence that can be used in the fight in the war against Al Qaeda. We will use all available tools whenever possible against suspected terrorists."

It's time we stood up and told the story. We have to continue to push back.

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