By Joe Palazzolo
Every morning, Attorney General Michael Mukasey is handed a classified brief describing the latest terrorist threats to the Unites States. Mukasey, in his remarks to judges and lawyers assembled in Farmington, Pa. for the D.C. Circuit's semi-annual Judicial Conference, said he thought he knew something about terrorism before taking over as the 81st attorney general. As a judge on the U.S. District Court for the Southern District of New York, he presided over the case of "Blind Sheikh" Omar Abdel-Rahman, which stemmed from the 1993 World Trade Center bombings, and signed the arrest warrant for Jose Padilla, who was convicted last year of aiding terrorists.
But Mukasey didn't know the half of it, he said, calling the daily reports "simultaneously sobering and alarming." His experience as attorney general has only reinforced his opinion that the federal courts should have a limited role in the prosecution of terrorism suspects. He defended the Military Commissions, saying that public criticism was premature since, as yet, no suspected terrorist has been tried in one. Critics have cited this fact as an argument for the commissions' inadequacy.
Mukasey, while reminding the audience that terrorism suspects "have no innate right to be tried in our courts," pledged to aggressively investigate and prosecute suspects linked to terrorism groups, and he repudiated suggestions that the Department of Justice has been overzealous in some national security cases. "Are there any words that could comfort you if a loved one was killed in a plot dismissed by the FBI?" Mukasey said.
The debate over the efficacy of the criminal justice system in handling terrorism cases has raged in recent years. While the Bush administration's attempts to try Guantánamo Bay detainees in military tribunals have faltered—indeed, the first iteration of the commissions was cast out by the Supreme Court—the federal courts have seen the convictions of several suspected terrorists, including Padilla and Zacarias Moussaoui, who pleaded guilty to playing a role in the 9/11 attacks and was sentenced to life in prison.
Last week, Human Rights First released a report by two former prosecutors in the Southern District of New York who concluded that the criminal justice system has adapted well to modern terrorism cases. Akin Gump Strauss Hauer & Feld partners Richard Zabel and James Benjamin Jr., the report's authors, found that in about 120 terrorism-related cases in the last 15 years, the courts had dealt with issues of classified evidence and detention with no national security breaches.
Mukasey, who has written opinion pieces about the federal courts' shortcomings in dealing with terrorism cases, said that phone records obtained through discovery in a New York case were leaked in the late 1990s, tipping off Osama Bin Laden that he was under surveillance by the United States. Zabel and Benjamin dispute this in their report, citing evidence that Bin Laden stopped using a satellite phone—Mukasey did not mention the phone, though he and President Bush have in the past—two years before the records came to light in the New York case.
Mukasey, citing the Abdel-Rahman case, said that terrorism cases are generally longer, more expensive, and create security issues. The jurors in that case were kept anonymous and given protection by the U.S. Marshals. Still, reporters staked out two of their homes during the trial, Mukasey said. The Moussaoui case, he said, illustrated how al-Qaida associates use the federal courts to stump for their cause. Mukasey called Moussaoui's frequent outbursts in court "nothing less than a form of propaganda."
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