A response to the Department of Justice ‘Fact Sheet’ on Prosecuting and Detaining Terror Suspects in the U.S. Criminal Justice System

In Washington today and tomorrow, the DOJ’s Office of Justice for Victims of Overseas Terrorism (OVT) is briefing American family members of those murdered by terrorists, as well as those injured during terrorist attacks. The stated purpose of the briefing is to:

…[offer] those interested the opportunity to meet task force members, hear an overview of task force work, and express views about the policy questions the Detention Policy Task Force is studying. Please click on the link for the Detention Policy Task Force to see some of the questions that the task force is considering. [password required] … For those unable to attend the meetings, but still interested in expressing views, we welcome written submissions. Please send your written comments via email (nsd.ovt@usdoj.gov) or fax (202-514-4275) to OVT by June 19, 2009.

In advance of the briefings, the Department of Justice issued a press release on June 9, 2009 that is posted below (in black). A response from 9/11 Families for a Safe & Strong America is interjected in red and blue.

Department of Justice Press Release Tuesday, June 9, 2009
Fact Sheet: Prosecuting and Detaining Terror Suspects in the U.S. Criminal Justice System

I. Terror Prosecutions in the Southern District of New York
Since the 1990s, the U.S. Attorney’s Office for the Southern District of New York (SDNY) has investigated and successfully prosecuted a wide range of international and domestic terrorism cases — including the bombings of the World Trade Center and U.S. Embassies in East Africa in the 1990s.
FACT: From 1993, starting with the first World Trade Center bombing, to the attack on the USS Cole in 2000, Al Qaeda killed 265 people and injured another 5,496. In the same period, a total of 29 people were convicted in major terrorism trials, only a handful of which were high-level operatives. Many of those responsible for the deaths of Americans and others were never apprehended. Those who were tried received platinum due process. And yet, 9/11 occurred. 3,000 more deaths in one day. The criminal justice system is not designed to protect American citizens from future terrorist attacks by covert, militant wahhabi organizations operating in global networks, carrying out martyrdom operations, with assistance from foreign states (Sudan, Saudia Arabia, Syria, Iran, Somalia, former Iraqi regime) and like-minded terrorists organizations (Hamas, Hezbollah). These are not street criminals who plague individuals. These are committed jihadists who pose an existential threat to the United States. When captured, Al Qaeda members are dedicated to continuing jihad, whether through propaganda or physical assaults on their captors. They are proud of their crimes, and are not interested in American justice. They are interested in undermining American justice. They are war criminals. Criminal indictments issuing from U.S. federal grand juries in the 1990s did not stop Osama Bin Laden or make the world a safer place.

Major Historical Cases in SDNY:
1993 World Trade Center Bombing: After two trials, in 1993 and 1997, six defendants were convicted and sentenced principally to life in prison for detonating a truck bomb in the garage of the World Trade Center, killing six people and injuring hundreds more. One of the defendants convicted at the second trial was Ramzi Yousef, the mastermind of the attack.
1994-95 Manila Air Plot: Ramzi Yousef and two others were convicted in 1996 for plotting to plant bombs aboard a dozen U.S. commercial aircraft that were timed to go off as the planes were flying over the Pacific. The defendants were sentenced to substantial prison terms. Yousef concocted the plan with Khalid Sheikh Mohammed, who is currently detained at Guantanamo Bay and has been indicted in SDNY for the Manila Air conspiracy since 1996.
1995 “Blind Sheikh” Trial: Ten defendants associated with a mosque in Brooklyn, N.Y., were convicted of plotting to blow up the World Trade Center, United Nations headquarters, and various bridges, tunnels and landmarks in and around New York City. The lead defendant, Omar Abdel Rahman, also known as the “Blind Sheikh,” was sentenced to life in prison, while his co-defendants were sentenced to prison terms ranging between life and 25 years.
Bin Laden Indictment and Embassy Bombings Trial: Shortly after the August 1998 bombings of the U.S. Embassies in Kenya and Tanzania, SDNY indicted Usama Bin Laden and approximately 20 alleged al-Qaeda loyalists for conspiring to murder Americans worldwide. Many of the defendants were also charged for their roles in the attacks on the U.S. Embassies in East Africa, including three defendants who were convicted after a six-month trial in early 2001. Those three defendants, and a fourth al-Qaeda member who was tried with them, were all sentenced to life in prison.
FACT: The conspicuous absence, after nearly nine years, of any USS COLE prosecutions. The imminent trial of ABD AL-RAHIM AL-NASHIRI under the Military Commissions Act was suspended by President Obama.FACT: The total number of convictions in major terrorism cases in federal court, after hundreds of millions of dollars in litigation costs, from 1993 to 2001, was 29 people, most of whom held small roles in the larger conspiracies. In fact, some of those who participated in the bombings were never apprehended or tried. There was virtually no intelligence value to these prosecutions. Indeed, due to federal discovery rules, sensitive classified information deemed “material to the defense,”was ordered by the presiding judge to be handed over by prosecutors. In the Rahman “Blind Sheikh” case, a list of 200 un-indicted co-conspirators was given to the defense and in Osama Bin Laden’s hands within days. This told Al Qaeda who was known to U.S. law enforcement authorities, and who was not. See, former SDNY prosecutor Andrew C. McCarthy, “The Intelligence Mess: How the Courts Forced Me to Give Osama Bin Laden Sensitive Information,” Wall Street Journal, Sept. 20, 2006
FACT: The federal rules for handling classified evidence in criminal trials continues to be a problem for prosecutors. The Classified Information Procedures Act (CIPA) was written to prevent defendants in espionage cases from engaging in “graymail,” threatening to reveal classified evidence in open court in order to pressure the government to drop charges. Prosecutors were faced with the choice of “disclosing or dismissing.” The current problem involves terrorism defendants who use discovery rules to force the government to disclose classified information which can be conveyed to their confederates. Disclosure of classified evidence, e.g. sources, methods, names of infiltrators, strains relationships with foreign intelligences services who want their counterterrorism operations and cooperation with the U.S. to remain secret..

Recent Cases in SDNY:
James Cromitie et al.: On May 20, 2009, four individuals — James Cromitie, David Williams, Onta Williams and Laguerre Payen — were arrested on charges arising from a plot to detonate explosives near a synagogue in the Bronx, N.Y., and to shoot Stinger surface-to-air guided missiles at military planes located at a the National Guard Base at Stewart Airport in Newburgh, N.Y. On June 2, 2009, all four defendants were charged in an eight-count indictment and face potential life in prison, if convicted.* All are legal US residents apprehended in NY.
FACT: Domestic case. No enemy combatants captured under laws of war. Reports indicate that these defendants are U.S. citizens who were prison converts to radical Islam.
Oussama Kassir: On May 12, 2009, Oussama Kassir was convicted of charges related to his participation in an effort to establish a jihad training camp in Oregon and his operation of several terrorist Web sites containing instructions about how to make bombs and poisons. Kassir was found guilty of all 11 charges against him, including providing material support to al-Qaeda and distributing information on explosives and weapons of mass destruction. FACT: Domestic “material support” case. Not an enemy combatant captured under laws of war.
Abduwali Abdukhadir Muse: On April 21, 2009, accused Somalian pirate Abduwali Abdukhadir Muse was transported to the SDNY to face criminal charges stemming from his alleged participation in the April 8, 2009, hijacking of the Maersk Alabama container ship in the Indian Ocean. Muse is charged in a 10-count indictment and faces a mandatory life sentence, if convicted.* FACT: This is not a terrorism case. MUSE has been charged with piracy of a commercial ship, hostage-taking, and kidnapping. He is not an enemy combatant captured under laws of war.
U.S. v. Viktor Bout: On April 9, 2008, international arms dealer Viktor Bout was arrested by Thai authorities on a provisional arrest warrant based on an SDNY complaint, which charged conspiracy to provide material support to a designated foreign terrorist organization. Bout was later indicted for, among other things, conspiring to sell millions of dollars worth of weapons to the Fuerzas Armadas Revolucionarias de Colombia (FARC) to be used to kill Americans in Colombia. Bout has been in custody in Thailand since March 6, 2008, pending an extradition request by the United States.* FACT: Material support case. Not an enemy combatant captured under laws of war.
Monzer al Kassar et. al.: On Nov. 20, 2008, international arms trafficker Monzer al Kassar and a co-defendant were convicted after a three-week jury trial of all charges — including conspiracy to murder U.S. nationals; conspiracy to murder U.S. officers; conspiracy to acquire and export anti-aircraft missiles; and conspiracy to provide material support and resources to the FARC, a designated foreign terrorist organization — for conspiring to sell millions of dollars worth of high-powered weapons to the FARC to be used to kill Americans in Colombia. Al Kassar, who had been extradited on these charges from Spain, and the co-defendant, who had been extradited from Romania (the first ever to the United States on terrorism charges), were sentenced to 30 and 25 years in prison, respectively. Another co-defendant, who was also extradited from Romania, was found guilty on similar charges, and awaits sentencing. FACT: Neither of these defendants were post-9/11 battlefield captures involving law of warfare detentions. AL KASSAR was a drug trafficker, money-launderer and arms dealer wanted all over the world for more than 20 years. He was arrested in Spain and extradited to the U.S. in 2007.

II. Terror Prosecutions Nationwide
Nationwide, the Justice Department and its U.S. Attorney’s offices have prosecuted many terrorism cases in recent months and years . Last year, Human Rights First published a comprehensive study on prosecuting terrorism in federal court from 9/11 through the end of 2007. The study, entitled: “In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Court,” found that federal prosecutors achieved a conviction rate of more than 90 percent in the set of terrorism cases examined by the report’s authors. The study examined a specific set of 257 defendants charged with terrorism related violations in the United States between 9/11 and the end of 2007. Of the 160 defendants from this group who had their cases resolved, 145 were convicted of at least one count, either by a verdict of guilty after trial or by a guilty plea. FACT: None of the cases in the study involved battlefield captures involving interrogations for “battlefield intelligence” and law of warfare detentions. They were all straight criminal cases which did not involve US military operations. Most were domestic “material support” cases, i.e. facilitators (funders, helpers).
Recent Cases:
Since Jan. 1, 2009, more than 30 individuals charged with terrorism violations have been successfully prosecuted and/or sentenced in federal courts nationwide, including the following:
Five Sentenced in Terror Finance Case: (Northern District of Texas) – On May 27, 2009, five leaders of the Holy Land Foundation, once the largest Muslim charity in the United States, were sentenced for their role in funneling more than $12 million to the Hamas terror organization. Shukri Abu Baker and Ghassan Elashi were each sentenced to 65 years in prison. Mufid Abdulqader was sentenced to 20 years in prison, while Mohammed El Mezain and Abdulrahman Odeh were each sentenced to 15 years in prison. FACT: Domestic “material support” case. Not an enemy combatant case.
Mohammed Warsame: (District of Minnesota) – On May 20, 2009, Mohammed Warsame pleaded guilty to conspiracy to provide material support to al-Qaeda, admitting that he attended al-Qaeda training camps, sent money from Canada to one of his former training camp commanders and continued to exchange messages with individuals associated with al-Qaeda once in Minnesota. FACT: Domestic “material support” case. Not an enemy combatant case.
Ali al-Marri: (Central District of Illinois) – On April 30, 2009, Ali al-Marri pleaded guilty to conspiracy to provide material support to al-Qaeda, admitting that he attended terrorist training camps, learned al-Qaeda tradecraft and was dispatched by al-Qaeda to carry out its terrorist objectives in America. FACT: This is a domestic case ( a “sleeper agent” arrested in Peoria, Ill), not an overseas detention, but it sheds light on how the Justice Department will treat hard-core terrorists going forward. The AL-MARRI case was touted by AG Eric Holder as a conviction which “reflects what we can achieve when we have faith in our criminal justice system.” Here’s what we achieved: AL-MARRI was a trained explosives expert sent by KHALID SHEIKH MOHAMMED to launch chemical bomb attacks in the U.S. He was given $10,000 by 9/11 financier MUSTAFA AL-HAWSAWI and told to arrive in the U.S. “before September 10, 2001.” AL-MARRI was allowed to plead guilty to only one count of “material support”— a charge reserved for non-violent facilitators—and will be allowed to argue that he should be sentenced to TIME SERVED. The most he can be sentenced in this plea agreement is 15 years. AL-MARRI made preparations to kill hundreds of people. This case will be correctly viewed by Al QAEDA as a sign of a weak American justice system. See April 30, 2009 DOJ Press Release
Five Sentenced in Fort Dix Terror Plot: (District of New Jersey) – On April 28, 29, 2009, five individuals — Mohamad Ibrahim Shnewer, brothers Dritan Duka, Shain Duka and Eljvir Duka and Serdar Tatar — received sentences ranging from 33 years in prison, to life in prison plus 30 years, for plotting to kill U.S. soldiers in an armed attack on the military base in Fort Dix, New Jersey. All five individuals were convicted at trial in December 2008. FACT: Domestic case. Not enemy combatants captured overseas in theater of war.
Seven Plead Guilty in MEK Terror Case: (Central District of California) – On April 28, 2009, seven individuals – Roya Rahmani, Alireza Mohammadmoradi, Moustafa Ahmady, Hossein Afshari, Hassan Rezaie, Navid Taj and Mohammad Omidvar — who were engaged in fundraising activities on behalf of the Mujahedin-e-Khalq (MEK), a designated foreign terrorist organization, pleaded guilty to federal charges of providing material support to terrorists. FACT: Domestic case. Not enemy combatants captured in theater of war.
Wesam al-Delaema: (District of Columbia) — On April 16, 2009, Wesam al-Delaema was sentenced to 25 years in prison for conspiring to murder Americans overseas, including by planting roadside bombs targeting U.S. soldiers in Iraq and by demonstrating on video how these explosives would be detonated to destroy American vehicles. He pleaded guilty on Feb. 25, 2009. FACT: AL-DELAEMA is a Dutch citizen arrested in the Netherlands and extradited to the U.S. Not an enemy combatant captured in theater of war. See February 26, 2009 DOJ Press Release. NOTE: AL-DELAEMA was also convicted of assault; in 2007 he beat a prison guard unconscious.
Christopher Paul: (Southern District of Ohio) — On Feb. 26, 2009, Christopher Paul was sentenced to 20 years in prison for conspiring to use explosives against targets in Europe and the United States. Paul joined al-Qaeda in the early 1990s, fought in Afghanistan and Bosnia and conspired with others to target Americans both at home and abroad. FACT: FACT: Domestic case. Not an enemy combatant captured in theater of war.
Four Plead Guilty in LTTE Prosecution: (Eastern District of New York) — On Jan. 27, 2009, four defendants — Thiruthanikan Thanigasalam, Sahilal Sabaratnam, Sathajhan Sarachandran and Yogarasa Nadarasa — pleaded guilty to terrorism violations in connection with their efforts to acquire surface-to-air missiles, missile launchers and hundreds of assault rifles for the Liberation Tigers of Tamil Eelam (LTTE), a designated terrorist organization. FACT: Domestic case. Not an enemy combatant captured in theater of war.
Two Plead Guilty in Plot to Murder U.S. Soldiers: (Northern District of Ohio) — On Jan. 15, 2009, Zubair Ahmed and Khaleel Ahmed pleaded guilty to conspiracy to provide material support to terrorists in connection with their efforts to travel abroad in order to murder or maim U.S. military forces in Iraq or Afghanistan. FACT: Domestic case. Not an enemy combatant captured in theater of war.

III. Detaining Terror Inmates in Federal Prisons
International Terror Inmates
There are currently 216 inmates in Bureau of Prisons (BOP) custody who have a history of/or nexus to international terrorism. Sixty seven of these individuals were extradited to the United States for prosecution, while 149 were not extradited. Seventy two of these individuals are U.S. citizens (45 of them born in the United States, 27 of them naturalized). The “Supermax” facility in Florence, Colo. (ADX Florence), which is BOP’s most secure facility, houses 33 of these international terrorists. There has never been an escape from ADX Florence, and BOP has housed some of these international terrorists since the early 1990s. In addition to the ADX Florence, the BOP houses such individuals in the Communications Management Units at Terre Haute, Ind., and Marion, Ill., as well as in other facilities among different institutions around the country.
Among those convicted international terrorists currently serving sentences in BOP facilities are:
• Sheikh Omar Abdel-Rahman, convicted of the 1993 World Trade Center bombing
• Ramzi Yousef, convicted of the 1993 World Trade Center bombing
• Ahmed Ressam, the Millenium Bomber
• Wadih el-Hage, convicted of the 1998 U.S. Embassy bombings in Africa
• Richard Reid, convicted of attempting to ignite a shoe bomb while on a flight from Paris to Miami carrying 184 passengers and 14 crewmembers
• Ahmed Omar Abu Ali, convicted of plotting to assassinate the U.S. President as well as attack and destroy civilian airliners
• Zacarias Moussaoui, convicted of conspiring with al-Qaeda to hijack and crash planes into prominent U.S. buildings as part of the 9/11 attacks.
FACT: The Moussaoui case did not result in an adversarial trial to determine guilt. Moussaoui pled guilty to six counts of conspiracy. There was no trial on the merits.
Domestic Terror Inmates
In addition to those inmates with an international terrorism history or nexus, there are approximately 139 individuals in BOP custody who have a history of/or nexus to domestic terrorism. These individuals include:
• Theodore Kaczynski, the Unabomber
• Terry Nichols, convicted accomplice of Timothy McVeigh in the 1995 Oklahoma City bombing
FACT: These two individuals do not present the same national security issues of militant wahhabi-based terrorism. Most notably, neither individual was associated with global terrorist networks, martyrdom operations involving mass casualties or was sponsored by foreign states and like-minded terrorists organizations.
Special Administrative Measures
Under the law, the Attorney General may direct the BOP to initiate Special Administrative Measures (SAMs) with respect to a particular inmate (including those being held pre-trial or during trial) when there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. Generally, these measures can be initiated to prevent acts of terrorism, acts of violence, or the disclosure of classified information.
SAMs are specific to a particular inmate. The special administrative measures may include housing the inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence, visiting, and other communications, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism, while still maintaining the inmate’s attorney/client privilege. The SAMs authorization automatically expires after one year, unless renewed or vacated.
• As of May 22, 2009, there were 44 inmates subject to SAMs, out of a total federal inmate population of more than 205,000.
Of the 44 inmates subject to SAMs, 29 were incarcerated on terrorism-related charges, while 11 were incarcerated on violent crime-related charges (gangs, organized crime, etc.), and four were incarcerated on espionage charges.
FACT: SAMs did not prevent the “brutal assault” by East African Embassy bombing suspect MAHMOUD MAMDUH SALIM on Corrections Officer Louis Pepe. While awaiting trial in federal court in New York City, SALIM plunged a homemade shiv into Pepe’s eye, permanently blinding him. The goal of the attack was to free his co-defendants, take hostages and assault his own attorneys. See May 3, 2004 United States Attorney Southern District of New York Press Release (pdf)
FACT: SAMs do not prevent terrorists from recruiting other members of the prison population to convert to militant Islam. FBI Director Robert Mueller recently testified before Congress that even in high-security federal prisons, terrorists may radicalize others, direct fund-raising for terrorist operations and participate attacks on Americans if released. He compared the problem to drug gangs who are known to run operations from prison. See May 20, 2009 MSNBC new report ‘FBI chief worried about Gitmo detainees in U.S.’ –End–

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