By Andrew C. McCarthy
Tuesday, May 5, 2009
The self-satisfaction of Justice Department and FBI officials practically radiated from the pages of their victory-lap of a press release last Thursday announcing the guilty plea of 43-year-old Ali Saleh Kallah al-Marri, a terrorist sent to the United States by al-Qaeda to carry out a second wave of mass-murder attacks. The case was a “grim reminder of the seriousness of the threat we as a nation still face,” Attorney General Eric Holder conceded, but he touted the result as a reflection of “what we can achieve when we have faith in our criminal-justice system and are unwavering in our commitment to the values upon which the nation was founded and the rule of law.”
What was that result? What did Holder get from reversing George W. Bush’s policy of detaining enemy combatants during wartime, the practice under which al-Marri spent the last seven years in a brig? Al-Marri was permitted by the Justice Department to plead guilty to a single count of material support to terrorism, maximum sentence 15 years’ imprisonment with the possibility that al-Marri may simply be given credit for time served and released.
Let me give you a point of reference. In 1993, the terror cell of the “Blind Sheikh,” Omar Abdel Rahman, bombed the World Trade Center. In short order, these jihadists, too, were planning a second wave: a New York City “day of terror” on which bombings would be carried out at the U.N. complex and the Lincoln and Holland Tunnels, potentially killing thousands of people. The plot was thwarted.
The least culpable defendant was a young man named Fadil Abdelgani, a Sudanese militant who was recruited by the cell at the very end of the preparations. He helped his cousin, a cell leader, transport gasoline to a bomb-construction safehouse, but the evidence was less than clear that he knew what it was for. When the plot was explained to him, Abdelgani was ambivalent and said he’d need to think about it. He left the safehouse, but returned later in the evening, telling the other jihadists that he’d decided to participate. Several minutes afterwards, as Abdelgani joined several other men mixing bomb components, the FBI’s Joint Terrorism Task Force raided the safehouse, placing the conspirators under arrest.
After being convicted at trial, Abdelgani was sentenced to 25 years’ imprisonment. His co-defendants received in excess of 30 years—most of them got 35 years; two were sentenced to life imprisonment because they were complicit in murder plots for which a life sentence was then available.
As I’ve recounted in Willful Blindness, my book about the case, the Blind Sheikh prosecution led to a drastic 1996 overhaul of federal counterterrorism law. The case had revealed the law’s failure to anticipate an era of international terrorism. Our criminal code actually penalized law enforcement for success: It prescribed severe penalties if terrorists managed to carry out bombings and other murders; but if police stopped a plot, the penalty for bombing conspiracy was only five years. Attempted bombing carried only a ten-year maximum—and technical quirks made it difficult to prove. So lacking was the charging arsenal circa 1993 that we dusted off a little-known Civil War–era statute, “seditious conspiracy” (to wage war against the United States) because it carried a potential 20-year sentence.
One can argue whether the civilian justice system is the best place to tackle terrorism. But after 1993, there was at least agreement that if terrorist offenses were to be handled in the federal courts, the sentences should be severe enough to nullify terrorists for life, both to punish the terrorists we captured and as a warning to the rest about our seriousness of purpose. Thus, the 1996 overhaul markedly increased the penalty for bombing conspiracy and codified a range of new terrorism offenses, including international terrorism, international conspiracies to kill American nationals, and using, threatening to use, or conspiring to use weapons of mass destruction. In 1998, special offenses involving chemical weapons were added. For all of these violations—better understood as war crimes—Congress provided potential sentences of “any term of years” or life imprisonment, and capital punishment if death resulted.
The valuable tool of “material support to terrorism” was created simultaneously. In the main, the material-support statutes contemplated sentences of no more than 15 years. That is a stiff sentence, but not adequate for a terrorist. The idea was that the real terrorists would be handled under the war-crimes offenses, which would sideline them for decades and beyond. Material support, to the contrary, was designed for the non-terrorist: the facilitator who was not a member of a jihadist organization and would not likely commit atrocities himself but who sympathized with jihadist goals and contributed to terrorist efforts with money, materiel, and other forms of encouragement. Primarily, material-support statutes would allow the government to dry up terrorist resources before cells could jell and plots could unfold.
So why was al-Marri treated like a mere facilitator, rather than a real terrorist?
Let’s go back to Abdelgani. His terrorist meter was ticking for perhaps a few hours. He was the lowest of low-ranking players and took preparatory actions in a conspiracy that was ambitious but halted well before completion—and long before 9/11, the Cole bombing, the embassy bombings, the Khobar Towers bombing, and most of the campaign that finally convinced Americans we were at war. Still, he was an actual, hands-on terrorist, not a mere facilitator; he was hammered with a 25-year sentence despite sparse participation; and his case, and that of his co-defendants, prompted a major reshaping of the law to make certain that, in the future, real terrorists would face appropriately crushing sentences.
Now contrast al-Marri: a years-long member of al-Qaeda who joined the network in 1998 (the year of the embassy bombings), was a member in good standing through the Cole bombing and other plots, reported to al-Qaeda’s highest command, and was dispatched to the United States before 9/11 (because al-Qaeda knew it would be harder for him to enter after the attacks) with instructions to blend in, study the feasibility of various types of mass-murder attacks, and await further instructions to strike. Here is some of what al-Marri admitted at his guilty-plea hearing last week:
In 2001, al-Marri was approached by Khalid Sheikh Mohammed [KSM], who was then the external operations chief for al-Qaeda, about assisting al-Qaeda operations in the United States. Al-Marri agreed to do so and knew at the time that . . . he was providing himself to al-Qaeda to further their terrorist objectives. Al-Marri was also aware that al-Qaeda was responsible for attacks against the United States, including the 1998 bombings of two U.S. Embassies in East Africa, and the 2000 attack on the USS Cole. In addition, he was aware of the 1996 and 1998 “fatwas” issued by Usama bin Laden against the United States.Al-Marri agrees that the government would prove at trial that his research into cyanide compounds is consistent with research conducted by persons trained in camps teaching advanced poisons courses to terrorist organizations, including al Qaeda. He also agrees that the government would prove at trial that an almanac recovered in his residence was bookmarked at pages showing dams, waterways and tunnels in the United States, consistent with al Qaeda attack planning regarding the use of cyanide gases.
Al-Marri was instructed by [KSM] to enter the United States no later than Sept. 10, 2001[.] . . . [KSM] also directed al-Marri to meet with Mustafa al-Hawsawi . . . in Dubai, United Arab Emirates, where al-Hawsawi provided him with $10,000. . . . Al-Hawsawi was a primary financier of the September 11th attacks. . . .
Al-Marri and his family arrived in the United States on Sept. 10, 2001. . . . Al-Marri used . . . e-mail accounts to inform [KSM] that he had arrived safely in the United States. . . . From Sept. 23, 2001 through Nov. 4, 2001, al-Marri made several unsuccessful attempts to call al-Hawsawi and others he knew were al-Qaeda operatives. . . . Although the initial calls were made from payphones in the Peoria area, after al-Marri was interviewed by the FBI on Oct. 2, 2001, he expanded the calling area, sometimes traveling more 160 miles away to place calls. Al-Marri also conducted online research of various cyanide compounds, including hydrogen cyanide, potassium cyanide, and sodium cyanide. He reviewed toxicity levels, locations where these items could be purchased, and specific pricing of the compounds. He also explored obtaining sulfuric acid, a well-known binary agent used in a hydrogen cyanide binary device to create cyanide gas. Al-Marri agrees that the government would prove at trial this is the method taught by al Qaeda for manufacturing cyanide gas.
Even by al-Marri’s account, the government was obviously in a position to prove he had not just given material support but was a significant member of the al-Qaeda conspiracy to murder Americans. As the Obama DOJ’s National Security Division chief David Kris put it in Justice’s press release, “The facts admitted by al-Marri today demonstrate that he attended terrorist training camps, learned al-Qaeda tradecraft and was dispatched by the highest levels of al-Qaeda to carry out its terrorist objectives in America.” Those terrorist objectives included weapons of mass destruction attacks, particularly with cyanide. Al-Marri was sent here to kill thousands of us—“maximum casualties” was his objective, according to Arthur Cummings, a top FBI national-security official—and he had every intention of doing it. The FBI, however, spent years traveling the globe, Cummings added in the press release, developing “the evidence to bring al-Marri to justice.”
So why wasn’t al-Marri charged with major terrorism offenses? The conduct to which he admitted, coupled with what the government says it was in a position to prove, would clearly have supported multiple life counts, the appropriate sentence for a would-be mass murderer, a key operative of a ruthless network with which the United States is currently at war. Not only was al-Marri charged with only two material-support counts and permitted to plead guilty to only one of them; the New York Times reports that the Justice Department nearly let him plead out to less than that—portraying Holder as sternly holding out for “at least a 15-year sentence.” Yet, even that is not true: The sentence will at most be 15 years, and Holder has expressly agreed that al-Marri may argue to the judge that he should receive a lighter sentence, as little as the time he has already served.
The terrorism cases of the 1990s would have been a lot shorter if we had been willing to plead them out on the cheap. Under the “Thornburgh Memo,” however, the Justice Department’s standard approach to all cases was to charge the most severe readily-provable offense, and in terrorism cases—given the added national-security threat involved—the practice was to throw the book at defendants, to make certain they were taken out of commission permanently, or as close to permanently as the statutes allowed. If defendants wanted to plead guilty, they were told these were the terms for pleading guilty—and if they wanted to fight it out, we would see them in court for trial.
The Obama administration has already outright released, with no trial, Binyam Mohammed, an al-Qaeda operative who, like al-Marri, was assigned by KSM to carry out mass-murder attacks in the United States after 9/11. Now, al-Marri has been given a plea agreement that grossly undersells the grave seriousness of his war crimes. If Holder’s objective was to demonstrate that George W. Bush was wrong to detain al-Marri as an enemy combatant and that the criminal-justice system “works,” this sweetheart deal suggests the opposite.
Jihadists were not impressed by our strategy of fighting them in the courtroom through the 1990s. But at least they knew the few of them we managed to apprehend and indict got slammed. I wonder what they’re thinking now.
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