47 Senators Reject Civilian Trials for Accused Terrorists

A GOP-heavy bloc nearly succeeds in scrapping 200 years of civil tradition

Guantanamo bay trial - AP Photo-Janet Hamlin Pool - banner.jpg

On the one hand, you have centuries-worth of successful terror trials within the federal civilian court system. You have Zacarias Moussaoui and Richard Reid and Ramzi Yousef and, just a few weeks ago, Umar Farouk Abdulmutallab, the so-called "Underwear Bomber." Save for Abdulmutallab, all the rest are serving life sentences without parole in a federal penitentiary, locked away forever from the rest of the world. Soon, the "Dude, your pants are on fire" guy will be, too. We've heard the last of him.

On the other hand, you have a decade (and counting) of utter failure in the military tribunal system for foreign-born terror suspects. You have four Supreme Court decisions chiding the Bush Administration and Congress for failing to provide detainees with sufficient due process protections. And, accordingly, you have an already-unacceptable logjam of unprosecuted men at Guantanamo Bay, Cuba. Khalid Sheik Mohammed, for example, was captured eight-and-a-half years ago and he still hasn't been tried.

So, naturally, 47 U.S. senators early Friday voted to reject the successful program and endorse the option that so far has failed. These paragons of logic voted to ban terror trials for foreign-born terror suspects in federal court. They failed, fortunately, but the vote was crazy close. Only one Democrat, the DINO Sen. Ben Nelson (D-Neb.), voted for the measure. So did the eternally wrong statesman, Sen. Joe Lieberman (I-Conn.). Two Republicans voted against it-- Sen. Rand Paul (Kentucky) and Sen. Mark Kirk (Illinois).

The measure-- technically to defund civilian terror trials for "enemy combatants"-- was offered up by Sen. Kelly Ayote, of New Hampshire, who cited last year's African Embassy bombing trial of Ahmed Khalfan Ghailani in New York as proof that the federal courts were no place for terror suspects. Ghailani, you will recall, was acquitted of all the charges against him and released back to his native Tanzania where today he directs terrorism operations against United States.... wait... what? Sorry, my producer is talking into my IFB.... what's that?...

Oh, that's right. Ghailani is not in Tanzania. He is not free. He is not committing acts of terrorism. Instead, he's in federal lockdown custody serving out the life sentence without parole which he received earlier this year from U.S. District Judge Lewis Kaplan. Turns out that Ghailani was convicted after all by a civilian jury. Turns out that Sen. Ayotte is trying to sell the notion that the civilian system doesn't work for foreign terrorists even though Ghailani and 300 or so other terrorists since 9/11 have been convicted and sentenced in federal court.

During the Bush era, most of these same Republican senators didn't say a word when the administration tried foreign suspects in federal court. In fact, led by Sens. Wrong (John McCain) and More Wrong (Lindsey Graham), they gleefully enabled the Bush White House to prosecute its war on terror in the manner it chose. Now, suddenly, civilian terror trials are such bad policy that 200 years of tradition needs to be thrown out the window. Even in the ultra-hypocritical world of Washington politics these days, this stands out. 

Image credit: Janet Hamlin Pool/AP

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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