Holder's Holiday from History of Terror Trials

Washington Times Editorial:

The U.S. attorney general should read up on the history of terrorism. He might learn something.

On Wednesday, Attorney General Eric H. Holder Jr. sent a five-page letter to Sen. Mitch McConnell, Kentucky Republican, detailing his rationale for treating purported Christmas Day bomber Umar Farouk Abdulmutallab as a criminal suspect rather than a terrorist detainee. The attorney general's defense betrays significant misreading of how the United States has dealt with terrorism in recent decades.

Mr. Holder incredibly claims that policies treating terrorists as criminals "were not criticized when employed by previous Administrations [and] have been and remain extremely effective in protecting national security."

Mr. Holder must be new to this issue. The problem of granting terrorists criminal status was at the center of the debate among counterterrorism scholars and practitioners in the 1990s. The policies of the Clinton era, which the Obama administration generally has resurrected, were critiqued in detail. Many warned that the domestic legal framework was insufficient to protect the United States from the emerging threat of globally networked Islamic terrorism. The events of Sept. 11, 2001, vindicated this argument. The Bush administration, armed with the Patriot Act and other important reforms, charted a new and more effective course that the current administration is in the process of dismantling.

Mr. Holder cited Zacarias Moussaoui as an example of a successful terrorism prosecution, ironically choosing the worst possible example to make his case. Moussaoui could be the poster child for the perils of Mr. Holder's preferred policies.

In 2001, FBI agents suspected that Moussaoui was involved in a terrorist plot but could not arrest him because they could not prove he had done anything illegal. He finally was detained in August 2001 on immigration charges. Over the next few weeks, FBI agent Harry Samit sent 70 messages to superiors warning that Moussaoui was a dangerous terrorist who probably was involved in a plot to violently take over an aircraft. French intelligence officials confirmed that Moussaoui was linked to Muslim radical groups connected to Osama bin Laden. Agents repeatedly sought permission to search Moussaoui's laptop computer; their requests were denied for a variety of technical reasons based on narrow interpretations of the law. Moussaoui, meanwhile, gave nothing of substance to interrogators.

Had Moussaoui been dealt with as a terrorist under the post-Sept. 11 framework, there would have been no question that his computer and other effects could have been examined for intelligence exploitation. Many think that had this taken place, the Sept. 11 attacks could have been disrupted. Mr. Holder's example of a successful prosecution is also the best example of a case in which using the techniques he advocates failed to stop one of America's greatest national tragedies.

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The Moussaoui trial was also a near fiasco. If he had not pled guilty, there is little doubt that he would have appealed on the issue of the refusal of the judge to turn over intelligence data on him and the 9-11 attacks which would then have been made available publicly for al Qaeda and other enemies to learn our sources and methods.

During the trial it is hard to say it was a model of criminal justice. He was disruptive and abusiveness as was the female al Qaeda recently convicted in New York of a lesser offense of attempted murder of troops in Afghanistan, rather than for her part in a plan to attack New York with WMD. That is in fact the history of many of these cases.

Lawfare has also been a clear failure when it comes to deterring terrorist attacks. It places us on the strategic defensive reacting to attacks rather than being on the offensive trying to stop them. That is what interrogation of these terrorist should be about.