Late yesterday afternoon, a friend of mine at a nationally-known newspaper sent me an e-mail to inform me that the Department of Justice had finally released its documentation on Attorney General Eric Holder’s claim that the federal courts had imprisoned “hundreds” of terrorists through regular trials. I replied that if these documents really proved their point, the late-Friday release didn’t make much sense, to which my friend agreed. National Review’s Andy McCarthy reviewed the data and discovered why the DoJ preferred to release it under cover of darkness:
The Friday data dump is a joke. No wonder they waited til everyone was headed out of town to dump it.
An honest disclosure would have said, “OK, you got us. There are not hundreds of convicted terrorists in custody. That was an exaggeration. The critics were right when they said we were rigging the numbers and inflating our count with hundreds of cases that did not involve terrorism convictions — as well as other cases which, while colorably related to terrorism, are not in the same league as cases involving alien enemy combatants like the 9/11 plotters.” But that’s not what Justice did. Instead, it leaked its disclosure to friendly media (see, e.g., here) which dutifully spun the story to say Justice was “calling the bluff” of its critics. Plainly, Holder & Co. are trying to shape the narrative before anyone actually reads the underlying data. (After watching the media’s shoddy coverage last week of the CBO report on Obamacare, who could blame them for figuring they’d get away with it?)
But the claim that there are 403 terrorists in custody is absurd. DOJ arrives at this figure by counting what it describes as two categories of case. The first involves real terrorism charges. Sounds fair enough, but what types of “terrorism charges” are they counting? Well they include, for example, convictions under statutes barring “Animal Enterprise Terrorism,” “Narco-terrorism,” “crimes against internationally protected persons” (which can be terrorism-related but are not necessarily), hostage-taking (ditto), and offenses like harboring terrorists and material support to terrorism (which are surely terrorism-related, and involve assistance provided to terrorists, but are charges generally brought against facilitators, not actual terrorists).
Not exactly KSM. But these Category I cases, though they blatantly goose up DOJ’s numbers, don’t account for most of DOJ’s claimed 403 terrorists. Over sixty percent belong to “Category II,” which Justice, without a hint of apology, describes as follows:
Category II cases include defendants charged with violating a variety of other statutes where the investigation involved an identified link to international terrorism. These Category II cases include offenses such as those involving fraud, immigration, firearms, drugs, false statements, perjury, and obstruction of justice, as well as general conspiracy charges [i.e., cases that charge other kinds of conspiracies, not terrorism conspiracies].
It’s important to recall what the question actually was. The Senate Judiciary Committee challenged Holder on his declaration that the federal court system could protect national-security information and intelligence agents when trying terrorists captured abroad by our military or intel agencies. This release amounts to a big non-sequitur, an attempt to muddy the question by answering a completely different one.
No one doubts that Animal Liberation Front terrorists should be tried in court, not military commissions. They’re Americans arrested in America by law-enforcement agents. The same is true for “narco-terrorists”, better known as gangsters, arrested by the DEA and FBI using standard law-enforcement assets and techniques. Only in the broadest possible sense can these types of cases be considered national-security issues.
However, we’re not using the FBI and DEA to capture and hold al-Qaeda terrorists, at least not exclusively, nor can we protect the US through those channels alone against enemies of the US. We need our military and intelligence agencies to find these enemies before they commit their terrorist acts and get information from them to find other plots against us. It’s an entirely different process and set of circumstances than going after eco-lunatics blowing up cars on dealer lots and scientific laboratories. Those circumstances require the use of military commissions in order to secure our intelligence practices and assets, which Congress has now authorized three times and which even the DoJ admitted works better for national security than federal courts.
Small wonder Holder postponed his appearance before Judiciary, and small wonder the DoJ used the hoary technique of a Friday-night document dump to cover Holder’s backside on his ridiculous claims.