4 cautionary terrorism cases that came before the Boston Marathon bombing
OPINION - The fact that we're having the debate at all could be seen as progress in itself, given that in the previous administration, cases like that of Dzhokhar Tsarnaev -- were often handled quite differently....
Zacarias Moussaoui — The Bush Justice Department sought the death penalty against the Moroccan-born Moussaoui, who was a French citizen, accusing him of being the “20th hijacker” on 9/11 — trained to fill in for one of the actual hijackers — despite the fact that prosecutors struggled to connect Moussaoui to any of the actual plotters.
The logic: By not telling authorities everything he knew about the plot, he prevented the U.S. from stopping the attacks, and therefore was responsible for the nearly 3,000 deaths. A jury disagreed, and in July of 2002, Moussaoui was sentenced to life in prison after a bizarre trial that included several rants by the defendant, who ultimately pleaded guilty to four counts of conspiracy, claiming he was a member of al-Qaida. What has never been made clear, however, was whether Moussaoui was more than a fringe player in the 9/11 terrorist assault.
Yaser Hamdi — Born in Louisiana, Hamdi moved with his family to Saudi Arabia as a child. In 2001, he was picked up by fighters for the U.S.-allied Northern Alliance in Afghanistan, where he was deemed to be an enemy fighter and transferred to the U.S. prison at Guantanamo Bay. After it was learned that he was an American citizen, Hamdi was transferred to a Navy brig in Virginia in the spring of 2002 and then to the Navy brig in Charleston, South Carolina, where he was held as an “enemy combatant” and stripped of his constitutional rights to counsel, and to learn the charges against him.
Hamdi’s father filed a writ of habeas corpus with a federal court, demanding to know the charges against his son and to allow him to be provided counsel. In the subsequent Supreme Court case, Hamdi vs. Rumsfeld, in 2004, the Supreme Court ruled 8 to 1 that the executive branch cannot detain American citizens without due process, including allowing them to challenge their “enemy combatant” status in court. The lone justice to side with the lower court, which had thrown out Hamdi’s claim, and with the government’s right to indefinitely detain American citizens without charging them with a crime: Clarence Thomas.
Despite their previous allegation that he was a dangerous terrorist, Hamdi was released by the U.S. government in October 2004 and deported to Saudi Arabia.
Jose Padilla — Perhaps the case that is most associated by civil libertarians with overreaching federal action in the “war on terror” involved Jose Padilla. In May, 2002, the Brooklyn, New York-born former gang member, who grew up in Chicago and was allegedly radicalized at a mosque in Broward County, Florida, was arrested on a material witness warrant at Chicago’s O’Hare Airport on his way back from a trip overseas. Authorities alleged he had met with terrorist cells during his travels, which included stops in Pakistan, Afghanistan, Saudi Arabia and Egypt, and that he was plotting to set off a “dirty bomb” inside the U.S.
Though an American citizen, Padilla — who had changed his name at various times to Abdullah al-Muhajir or Muhajir Abdullah — was designated an “enemy combatant” in June of 2002, and confined to a military brig in South Carolina, where he was held without charges for three and a half years (the first two without notifying his family or allowing him access to a lawyer), and subjected to “enhanced interrogation techniques” — which many consider to be better named as torture. The case raised such alarm among civil liberties advocates that the conservative CATO Institute filed a friend of the court brief along with more liberal-leaning groups like the the Lawyers Committee for Human Rights, People for the American Way, and in the case of Padilla vs. Rumsfeld, a civil suit Padilla filed against the administration (which was ultimately dismissed.)
A previous case, Rumsfeld v. Padilla, in which the Bush administration appealed a federal circuit court’s order that Padilla be released within 30 days, was dismissed by the Supreme Court on technical grounds. Of the later lawsuit, CATO wrote: “essentially, on orders of the executive branch, anyone could wind up imprisoned by the military with no way to assert his innocence.” The government dropped its conspiracy case against Padilla in 2006, and he was moved to Miami, Florida to be tried in civilian court on charges of conspiracy to commit terrorism. A federal jury convicted Padilla on terrorism conspiracy charges in 2007, though he was never actually charged with trying to set off a “dirty bomb.” He was sentenced to 17 years in prison.
Good news for civil liberties advocates
The good news for fans of the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution is that the Obama administration appears uninterested in pursuing cases the way those above were handled. And for victims, the further good news is that U.S. civilian courts have a good track record of getting justice for the victims of domestic terrorism, including cases like the attempted Shoe Bomber Richard Reid, and attempted “underwear bomber” Umar Farouk Abdulmutallab, both of whom were tried in federal civilian court.
According to the Center for American Progress:
The extensive record of criminal courts in successfully prosecuting terrorists stands in stark contrast with the shockingly poor military commissions system. Since 2001—the same period in which military commissions have convicted just three terrorists—criminal courts have convicted more than 200 individuals on terrorism charges, or 65 times more than military commissions. Criminal courts racked up these convictions with none of the uncertainty that still plagues the military commissions system.
To be sure, the Obama administration’s handling of terrorism suspects has not been without controversy, including the killing of American-born Anwar al-Awlaki using a drone strike in Yemen in 2011, and the debate over whether the administration would ever use drones on U.S. soil (the administration has said it would not). And some civil liberties advocates objected the invocation of the Public Safety Exception to delay reading Tsarnaev his Miranda warning after his initial capture (he was given the Miranda warning upon formally being charged on Monday). But it appears that in the fight over how terrorism cases will be handled, for now, the courts are winning.
Follow Joy Reid on Twitter at @TheReidReport.
