Within weeks of the 9/11 attacks, I appeared on a Court TV program hosted by Alan Dershowitz. The professor asked whether I would be willing to defend Osama bin Laden, already identified as the prime suspect in the World Trade Center and Pentagon bombings. We both assumed that the trial would take place in a federal district court. After all, bin Laden was already indicted in federal court in Manhattan, charged with conspiracies to murder, bomb, and maim United States nationals.
Dershowitz and I agreed that representing bin Laden would be an extreme act of patriotism. We would be aiding a process by which the world would see that no matter how uncivilized the perpetrator, America would stick to its values and afford him due process and a fair trial with a defense lawyer zealously committed to protecting his client's rights.
Why would hardened soldiers, quite willing to commit a suicide bombing, politely exchange information for leniency?
In the years following 9/11, I continued to believe that crimes committed on American soil should be prosecuted in a civilian, rather than a military, court. While terrorist defendants may be uncommon criminals, federal penal statutes have been working, in cases involving Zacarias Moussaoui (9/11 conspirator), Richard Reid (shoe bomber), Ramzi Yousef (1993 Trade Center bombing) and Mahmud Abouhalima (1993 Trade Center bombing), as well as many others who have been tried, convicted and sentenced to life, or the equivalent of life, without parole (Abouhalima, 50, is scheduled for release in September 2087).
In the days since Umar Farouk Abdulmutallab's arrest in the Christmas Day plot to blow up Northwest Flight 253, many of my long-held moral and legal assumptions shifted. It's not that I've lost confidence in the ability of the civilian courts to resolve these cases. Rather, prosecuting terrorists who commit crimes against United States nationals, at home or abroad, is a burden that American courts should not have to bear. These terrorist offenders are, in every sense of the word, soldiers. Soldiers in an openly declared holy war against American "infidels." These soldiers, like our soldiers, are highly trained. They too can strip and clean weapons while blindfolded. They too, are experts in explosives and guerrilla tactics. Their skill set is similar to the most elite of our forces. They are tough. Like our CIA agents, they too are required to endure torture so that they may be taught to resist it.
And knowing all this, as our intelligence community must, we are embracing a strategy not much different than the strategy in the "war on drugs" or the "war against the Mafia." Last Sunday, John O. Brennan, the president's deputy national security adviser for counterterrorism and homeland security, told David Gregory, the host of Meet the Press, that "plea bargaining" in a civilian court would result in obtaining valuable information about ongoing terrorist activity. According to Brennan, these terrorist defendants may be willing to trade information for lenient sentences.
It is undeniably true that the threat of long prison sentences has produced countless cooperators who have helped the government and themselves—and, in turn, spurred the collapse of drug cartels (a few) and Mafia families (some). But can it be said with a straight face that this same method would lead to valuable information extracted from terrorist soldiers? Eight years of torture coupled with an open offer of a $25 million reward has failed to produce the capture of Osama bin Laden. So, why would hardened soldiers, quite willing to commit a suicide bombing, politely exchange information for leniency?
And, assuming he were to cooperate, which government official will stand before the American public and announce, for example, that Umar Farouk Abdulmutallab, who nearly killed at least 278 innocent Americans, received a light sentence in return for his cooperation?
The absurdity of this strategy is further illustrated by even a superficial analysis of the convict's post-release plan. Non-citizens convicted of serious crimes are automatically deported. Would Abdulmutallab then get deported back to Nigeria—or perhaps Yemen—having served his sentence, only to rejoin his compatriots?
Or, do the prosecutors secure an S-Visa for him? Although, as noted, deportation is mandatory and automatic in the event of conviction of a serious crime, the government may issue an S-Visa allowing the cooperator to live legally in the United States with eventual permanent residency (Green Card) or even citizenship as a reward for cooperation.
Enemy combatants, soldiers trained to kill—in the witness-protection program—living next door? Marrying my sister? This week I'm thinking, keep Guantanamo open.
Gerald L. Shargel, a member of the New York Bar since 1969, has handled numerous high-profile cases at both the trial and appellate level. He has written written for The New York Times, the Los Angeles Times, the New York Law Journal and Slate. Mr. Shargel, a practitioner-in-residence at Brooklyn Law School, recently authored a law review article published in the Fordham Law Review, "Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation."