Counterterrorism, Obama Style

After Justice’s sweetheart deal, judge gives al-Marri a slap on the wrist

By Andrew C. McCarthy
Friday, October 30, 2009

Five months ago, when al-Qaeda jihadist Ali Saleh Kallah al-Marri pleaded guilty, it was obvious that the Justice Department had given him a sweetheart deal. On Thursday, a federal judge in Illinois dutifully finished the job. Al-Marri, a committed sleeper operative sent by our enemies to carry out a post-9/11 second wave of mass-murder attacks inside the United States, was given an appalling sentence: He’ll be eligible for release in about six years.

When al-Marri entered his plea back in May, Attorney General Eric Holder crowed that the case demonstrated the criminal-justice system’s capacity to confront and quell international terrorism. As I observed at the time, though, the plea bargain was a travesty. It marked a dramatic step backwards even from the wayward 1990s philosophy that saw international terrorism as strictly a law-enforcement issue, not a national-defense matter.

Prior Justice Department practice required prosecutors to charge the most severe, readily provable offense. And in 1996, to ensure that this practice would result in sentences of death or life imprisonment for terrorists, Congress — with significant encouragement from the Clinton Justice Department (in its pre-Holder days) — overhauled federal counterterrorism law. These new laws did not solve the underlying problems: that terrorism is not a mere crime, and that regarding it as such badly compromises national security. But they did at least mean that terrorists who were successfully prosecuted would never again be able to harm Americans or anyone else. The new laws were tailor-made for terrorists like al-Marri, who joined al-Qaeda in 1998, reported directly to the network’s top echelon, and was sent to the United States by Khalid Sheikh Mohammed, al-Qaeda’s operations chief and 9/11 master planner, to carry out mass-murder attacks using chemical and biological weapons.

In stark departure from prior Justice Department practice, Holder permitted al-Marri to plead guilty to providing material support for terrorism. The material-support offense is generally reserved for non-terrorist sympathizers who facilitate the jihad but are unlikely to carry out atrocities themselves. It is a significantly less serious charge than the crimes — the acts of war — that Marri had actually committed, such as full-fledged membership in the al-Qaeda conspiracy to kill Americans, as well as conspiracies to use weapons of mass destruction.

Because of Holder’s abandonment of past DOJ practice, al-Marri was looking at a maximum sentence of 15 years. Had the Justice Department filed appropriate charges and taken the case to trial, the 43-year-old al-Marri would have been looking at a life sentence. I am not just speculating here: As I recounted back in May, the terrorist conceded at his guilty plea that the government was in a position to prove his conduct went miles beyond material support. He agreed that he had been sent to the U.S. by KSM to conduct attacks, and that, to quote the plea agreement

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 agreed 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 planning for the use of cyanide gases.

The Justice Department absurdly spun the plea as harsh, with Holder portrayed as sternly holding out for a sentence of at least 15 years. But this was nonsense. As I also pointed at the time, “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.”

As every prosecutor knows (indeed, as virtually every American knows), judges are generally predisposed to treat criminal defendants more leniently than most prosecutors and the public would. Thus, in sentencing practice, the signals that the Justice Department sends the court are at least as important as the crimes at issue. When DOJ pleads out a case on the cheap, and when — under circumstances in which it does not have to — the prosecution agrees to allow the defense lawyer to seek a light sentence, DOJ is effectively telling the judge that the case is not as serious as it may seem. It is telling the judge that the public interest would not be disserved if a light sentence — as little as time already served — were imposed. After all, the Justice Department was in a position to make certain that the terrorist was treated like a terrorist. If DOJ didn’t do that, then why should the judge?

In Peoria federal court yesterday, that’s exactly what Judge Michael M. Mihm figured. Remarkably, at the sentencing hearing, the Justice Department presented evidence that al-Marri was still “likely to engage in hostile acts towards the United States.” Plainly, the judge reasoned that, if that were really true, then DOJ would have charged more appropriate terrorism offenses and made certain that al-Marri is never in a position to harm Americans again. Justice hadn’t done that, and Mihm predictably treated the case just the way DOJ did.

Judge Mihm pronounced a sentence of a mere eight years. He gave al-Marri credit for the nearly eight years he has already spent in custody — including more than five in a Navy brig when, under the Bush counterterrorism approach, he was detained without trial as an enemy combatant. With various credits for good behavior and other reductions, al-Marri could be released, in the United States, in six years or so. And he’s got plenty of jihad left in him.

Many Justice Department lawyers, including Attorney General Holder, come from firms and institutions that spent the last eight years as defense counsel for terrorists. Should we be surprised that, even compared with the “terrorism is just a crime” era of the 1990s, terrorists have never had it so good?