This week saw the start of yet another nationally watched terror trial—of University of Idaho grad student Sami Omar Al-Hussayen, charged with three counts of supporting terrorism and miscellaneous visa violations. Al-Hussayen is accused of using his computer to help funnel $300,000 to terrorist organizations and using the Web to advocate violence against Americans.
The real question at the core of the Al-Hussayen trial is the same question that plagues the other big terror trials that have occurred since 9/11: Is this really the best way to stop terror? It's clear that the Bush administration doesn't believe in open criminal trials for "real" terrorists. That's why accused American citizens like Yaser Esam Hamdi and Jose Padilla are languishing in Navy brigs right now and why a ranking al-Qaida member, accused of planning the 9/11 attacks, Ramzi Binalshibh is still being interrogated in some secret location. It's also clear that the administration is not really all that interested in a fair trial for its 9/11 scapegoat of choice, Zacarias Moussaoui. Long after it became apparent that he was never intended to be the 20th hijacker,Moussaoui's trial remains stalled over the government's insistence on imposing the death penalty. The administration is thus using the civilian courts to try only the low-level conspirators; the "passive supporters," the folks who don't quite rise to the level of terrorist—most of whom are just losers and misanthropes.
There are all sorts of ways to prosecute passive supporters—people like Al-Hussayen, who genuinely sympathizes with some terror activities, even though he's never plotted an attack or lifted a weapon. Conspiracy law allows us to punish groups of people for planned future crimes. The "material support" law, lifted from the Antiterrorism and Effective Death Penalty Act of 1996, criminalizes providing "material support and resources" to terrorist organizations. "Material support" originally meant money, weapons, food, medical supplies, and other tangible assets. But it was amended by the Patriot Act to include "expert advice and assistance," a change already deemed unconstitutional by a federal judge in California.
Because we haven't caught many real terrorists in the act of terrorism since 9/11, and since we won't trust those we have caught to the criminal justice system, we have been left to rely on this "material support" provision to convict numerous individuals, many of whom are Americans. So far, the folks convicted of terror-related offenses have been bit players, as is evidenced by the relatively short sentences they've received. No one would characterize them as perfect innocents—several tried to fight in Afghanistan; some look like members of sleeper cells. But no one can argue—although Attorney General John Ashcroft has certainly tried—that the courts have played a vital role in stopping terror attacks in this country. In exchange for this handful of relatively minor convictions, the Justice Department has condoned outrageous prosecutorial excesses, all to prove that these convictions matter more than they do. A sampling of the major terror convictions since 9/11 highlights the problem:
The "Detroit Three": Touted as the first huge win in the war on terror, the conviction last June of three alleged terrorists in Detroit (two were convicted of terror conspiracy, one on document charges) is in shambles. The convictions may be overturned as a result of prosecutorial misconduct, including the government's failure to turn over more than 100 documents, the deportation of two potentially exculpatory witnesses before the case, statements made by Attorney General John Ashcroft in violation of a gag order, and the distinct possibility that the state's star witness was a con artist who lied to investigators. The lead prosecutor has been removed from the case and is suing John Ashcroft.
The "Portland Seven":Guilty pleas were entered in February for the last members of the so-called "Portland Seven"—a group of Oregon Muslims charged with conspiring to wage war against the United States. One member of the group died in a shootout in Pakistan; the other six never got past China in their efforts to join the fighting in Afghanistan after 9/11. They have been sentenced to terms of between three and 18 years. The group, which included Mike Hawash, a Palestinian-born Intel engineer, spent its time studying books and films on jihad and martyrdom. Hawash pleaded to the charge of providing material support to the enemy, in exchange for which the conspiracy to wage war against America charges were dropped.
The "Lackawanna Six":Six young men from Buffalo went to Afghanistan and attended a training camp there, before 9/11 ever happened. Some drank tea with Bin Laden. There was never any government claim that they intended to commit an act of terrorism. They were charged with "providing material support" to al-Qaida. All pleaded guilty to the charges and are serving prison terms of between six and nine years. One of their lawyers explains that they accepted the plea agreement because the proffered alternative was indefinite detention as "enemy combatants" in a military brig.
The "Virginia Jihad Network":Nine Virginia men either pleaded guilty or were convicted on charges of conspiracy as part of an alleged jihad network. Two were acquitted. The men played alarming amounts of paintball in the woods around Fredericksburg, and some traveled to Pakistan to try to join the fighting after 9/11. None of them ever actually joined the Taliban; none ever fired on an American. Some were convicted on serious weapons charges.
Are these really the most dangerous terrorists among us? A bunch of disaffected bozos who watch cheesy training videos, admire their fine Gold's Gym selves in the mirror, and try to take grandiose trips abroad? Some of them wanted to be terrorists, but most of these convictions were not for actually planning an act of terrorism; they were for being pro-terrorist. They may indeed all have been members of sleeper cells, but since that is unprovable (and unproven), it may also be the case that they were merely gangs of Muslims who hate the United States.
Alan Dershowitz has famously argued that there's a place in the law for pre-emptive strikes against terrorists—for preventive detention and even torture in some cases. And the argument for pre-emptive punishment for possible terrorists is a strong one: The difference between a sleeper cell and an awake cell can mean the difference between a building and a pile of cinders. You need to disrupt these cells in advance of a plot—goes the argument—before the malcontents and thugs are activated. There are lots of theories for how this can be done. Here's Stuart Taylor Jr., for starters.
But the Bush administration needs to do two things differently, starting now: First, it must stop heralding each of these trials as a determinative battle in the war on terror. It puts too much pressure on prosecutors to behave appallingly, as they apparently did in Michigan. And it bullies possibly innocent defendants into accepting guilty pleas by threatening to designate them as "enemy combatants." Second, the administration must try a real terrorist for real acts of terror. Either the Moussaoui trial should go forward, based on real terror charges, with Moussaoui given a meaningful opportunity to defend himself, or Padilla, Hamdi, or Binalshibh should be tried in open court. Reserving the courts for the small-fry sends the message that the Western legal system can only punish the pretty-bad. And treating each pretty-bad guy like he committed the crime of the century sends the message that justice was never really the point in the first place.