Will Congress Ban Civilian Terrorist Trials?

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Some observers viewed the single guilty verdict against the Tanzania Embassy bomber Ahmed Ghailani last week as the death knell for civilian trials for terrorism suspects. Opponents of trying 9/11 mastermind Khalid Sheikh Mohammed (KSM) and his co-conspirators in Article III courts declared civilian trials too dangerous after the jury convicted Ghailani on just one of 285 criminal counts.

In fact, the damage to civilian terrorism trials from the Ghailani verdict has been limited. The administration is avoiding the costly political fight that would come with trying to put top al Qaeda figures on trial, but is pursuing lower level civilian terrorist trials. And the effort to permanently outlaw all civilian trials–or even just those for top al Qaeda figures–seems to be going nowhere on Capitol Hill.

After Holder announced that KSM would get an Article III trial in Manhattan nearly a year ago, pretty much every politician in New York turned against the idea. In response, Holder quietly put KSM’s trial into suspended animation. The administration tried for months to find an alternate location for a civilian trial, but was everywhere rebuffed by members of Congress and local political figures in the New York, Pennsylvania and Virginia .

“The only place that made sense in the end would be Washington, which has no representatives,” says one supporter of civilian trials on Capitol Hill. But trying KSM in DC would require a legislative fix, since no 9/11 crimes were committed here. Things haven’t improve much for the administration recently. New York Governor-elect Andrew Cuomo came out against a KSM trial anywhere in New York State earlier this month.

The President and the Attorney General still support the idea of broadly using civilian trials to handle terrorism suspects, DoJ and White House officials say, because they think the trials are more effective than military tribunals and because they want to protect the power of the judiciary. And they haven’t given up on civilian trials for the 9/11 conspirators. Their strategy is to proceed with lower-level civilian trials, building a track record of success for them, DoJ and other administration officials say. Down the road, the optimists hope, the political environment will change.

The Ghailani verdict didn’t exactly help that effort, but it didn’t kill it either. Those who want to permanently outlaw civilian trials for terrorists, or even just for 9/11 plotters, don’t seem to be moving ahead with plans to do so. An amendment to block civilian trials for the 9/11 co-conspirators has languished on the Hill for months, but its author, Lindsey Graham, has no current plans to introduce it, his office says. “It’s still hanging out there,” says his spokesman Kevin Bishop.

If he wanted to, Graham could try to move the amendment in the Senate’s lame duck session after Thanksgiving.  The House has already included an explicit ban on the transfer of terrorism suspects to the United States contained in the must-pass defense authorization bill. The Senate doesn’t have a bill yet, but it is one of the few things that may get done before this Congress concludes business in December.

The administration is watching Graham closely. But DoJ officials point to ongoing civilian terrorist trials, like those of underpants bomber Omar Farouk Abdulmutallab and subway bomb plotter Najibullah Zazi, as evidence that the rhetoric surrounding Ghailani doesn’t reflect political reality.