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President George W. Bush’s announcement last week that he transferred 14 terror suspects, including alleged Sept. 11 plotters Khalid Sheikh Mohammed and Ramzi Bin al-Shibh, to the U.S. prison at Guant�namo Bay, Cuba, for potential trials before military commissions signals the president’s intention to keep these high-profile terror cases out of the federal court system. Until now, all terror prosecutions in the United States have been handled by the Justice Department, and the results have been mixed. Since the Sept. 11, 2001, attacks, the Justice Department has obtained 1,300 convictions in terror-related cases — the vast majority for minor crimes like immigration fraud — in an attempt to disrupt terror cells and their supporters. DOJ prosecutors have also won dozens of lengthy sentences in major terrorism cases, a fact the department has publicized in a number of press releases in the run-up to the fifth anniversary of the attacks. Those achievements include lengthy sentences handed down to would-be airline shoe bomber Richard Reid, al Qaeda financier Sheikh Mohammed Ali Hassan al-Moayad, American Taliban John Walker Lindh, would-be Brooklyn Bridge attacker Iyman Faris, and Virginia jihadi Ali al-Timimi. The successes have won the Justice Department some bipartisan praise. “I think the department has done a pretty good job overall,” says Eric Holder Jr., who served as deputy attorney general in the Clinton administration. But Holder adds, “The department has been aggressive in going after people . . . sometimes overly aggressive.” Indeed, the Justice Department’s accomplishments have also been tempered by some high-profile embarrassments. The DOJ’s first prosecution after Sept. 11, involving four Detroit men arrested within a week of the attacks, ended in humiliation for the government and criminal charges against one of its prosecutors. In the celebrated case of Jose Padilla, whom then-Attorney General John Ashcroft warned was plotting to set off a radiological device, possibly in Washington, the Justice Department has drawn criticism for exaggerating Padilla’s potential danger. And the DOJ’s most visible and important trial, that against would-be hijacker Zacarias Moussaoui, appears to have reinforced the administration’s view that the civilian courts are not the best venue for those closely linked to major al Qaeda plots. Though Moussaoui pleaded guilty and was sentenced to life in prison, his road to trial consumed four years and millions of dollars as the government unsuccessfully sought the death penalty. MEASURING THE IMPACT Assessing the Justice Department’s results in the fight against terrorism depends in part on how you measure them. Data from the Executive Office of U.S. Attorneys compiled by the Transactional Records Clearinghouse at Syracuse University indicate that the number of prosecutions for what the Justice Department defines as “international terrorism” — a category that includes the most serious statutes associated with terrorism — has declined significantly since 2003, when the DOJ prosecuted 355 international terrorists. Through the first eight months of this year, that figure was just 19, roughly in line with the department’s pre-Sept. 11 level. “Given the widely accepted belief that the threat of terrorism in all parts of the world is much larger today than it was six or seven years ago, the extent of the recent decline in prosecutions is unexpected,” says the TRAC report, which was released last week. The survey also highlights the DOJ’s extensive efforts to bring less serious charges against those it suspects of being tied to terrorism. Of the 1,300 convictions for any federal crime in what the department has classified as terrorism investigations, half the defendants received no prison sentence, and less than 3 percent received sentences of longer than five years. Current and former Bush Justice Department officials have argued that prosecution data don’t reflect the extent of their efforts and that bringing lesser charges against those suspected of providing financial or other support to terrorists has been an effective strategy. “The number of successful attacks is a better measure than the number of prosecutions,” says Christopher Wray, who oversaw the DOJ’s terrorism prosecutions as head of its Criminal Division from 2003 until 2005. “We’d always rather catch a terrorist with his hands on a check than his hands on the bomb.” Amid the convictions, there have been setbacks. The case of Karim Koubriti resulted in one of the DOJ’s most public embarrassments in a terrorism case. In 2003 a jury convicted Koubriti and an associate on terrorist conspiracy charges. But after allegations that the lead prosecutor in the case, Richard Convertino, had withheld evidence from defense lawyers, the Justice Department was forced to ask the court to reverse the convictions in 2004. Convertino and a State Department official in the case are now facing federal criminal charges in Detroit. The Justice Department has also come under fire for its role in authorizing the roundup and imprisonment of more than 1,000 Muslim and Arab men on immigration charges in the weeks after Sept. 11. Many were held for months without a hearing. The sweep resulted in civil suits against senior government officials that allege the detentions were based solely on religion and nationality and that prison guards terrorized detainees with dogs. Senior Justice officials have also been accused of overhyping certain threats. After Padilla’s capture, in June 2002, Ashcroft gave a televised statement saying, “We know that [Padilla] is an al Qaeda operative and was exploring a plan to build and explode a radioactive dirty bomb.” Other administration officials quickly backed off that assertion, and when Padilla was finally indicted, in late 2005, after a lengthy court battle and two years of confinement as an “enemy combatant” without access to lawyers, the charges made no mention of the alleged dirty-bomb plot. But even Attorney General Alberto Gonzales, who has kept a lower profile than Ashcroft, has been criticized for his media blitz after the arrest of a group of men in Miami this year. Evidence made public in the case appears to show the Miami group was not an imminent threat. ZACARIAS’ LEGACY But in the administration’s internal debates over whether to try international terrorists before domestic courts or military tribunals, the case that appears to have been the most influential is that of Moussaoui. Last week, Gonzales told reporters that prosecuting Moussaoui in federal court had essentially been an experiment. “There was a great deal of discussion and debate within the administration as to whether or not Moussaoui should be in an Article 3 [federal] court or should we hold Moussaoui to try before a military commission,” Gonzales told National Public Radio. “. . . The decisions made by the judges inform us, they educate us, about whether or not, how effective are Article 3 courts in going forward, in bringing to justice, someone like a Moussaoui.” Critics are quick to point out that the White House’s previous effort to try enemy combatants before military commissions — which the Supreme Court deemed illegal in Hamdan v. Rumsfeld — was also little more than a test. “So much of what the administration has done in this area has been an experiment — an experiment to see what it can get away with,” says David Remes, a Washington lawyer who represents a number of Yemeni nationals detained at Guant�namo Bay. Ultimately, the White House’s renewed efforts to engage Congress in determining how to try would-be terrorists may result in clarifying which terrorism suspects are tried in federal court and which are tried by the Pentagon. “You’d like to see some guidelines as to who goes where, because Moussaoui didn’t make a lot of sense,” says Andrew McBride, a former senior Justice Department official under President George H.W. Bush. “If he didn’t belong in a military tribunal, who did?”
Jason McLure can be contacted at [email protected].

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