With the debate over how to handle captured terrorists heating up, it’s a good time to look back at the record of how military tribunals have worked in practice, and examine the uninterrogated assumption underlying the debate: that tribunals are tougher on terrorists than the criminal justice system.
A recent study by the liberal Center for American Progress found that in the very few cases of captured terrorists being tried in tribunals, the defendants were given lighter sentences than comparable cases in the criminal justice system.
Republicans have been ramping up calls to, in the words of Sen. Kit Bond, “treat these terrorists as what they are — not common criminals, but enemy combatants in a war.”
But the news yesterday that accused Christmas day bomber Umar Abdulmutallab, who is being handled by the criminal justice system, has been talking to interrogators shook up the debate over how to handle alleged terrorists.
The conclusions of the January study by CAP’s Ken Gude are also worth keeping in mind.
The study found that in two of the three terrorism cases handled by tribunals, the defendants were given significantly shorter sentences than comparable cases that went through criminal courts.
(It’s also worth noting that there are have been so few tribunal cases partly because the system has been the subject of legal challenges that put its legitimacy in doubt. As former Bush assistant attorney general Jack Goldsmith argued last year in a Washington Post op-ed on Khalid Sheik Mohammed, “This uncertainty has led to many legal challenges that will continue indefinitely — hardly an ideal situation for the trial of the century.”)
To take the two specific cases: Australian David Hicks, who plead guilty in early 2007 to material support for terrorism, was given a seven-year sentence, with all but nine months suspended. Even including the five years he spent in custody before the plea, his time in custody was far less than the 20-year sentence doled out to John Walker Lindh in a similar case, according to the CAP study. The study says:
The allegations against David Hicks in a military trial were quite similar to those leveled against John Walker Lindh—the so-called American Taliban—in a criminal court … Hicks pleaded guilty to the charge of material support for terrorism with the underlying allegations that he trained at an Al Qaeda camp in Afghanistan and that he was an armed participant in numerous engagements with American and Northern Alliance forces. Lindh pleaded guilty to serving in the Taliban army and carrying weapons.
Hicks is now living in Australia as a free man.
And then there’s the case of Salim Hamdan, Osama bin Laden’s driver, who got a five-and-a-half year sentence after being tried in a military tribunal in 2008. He was credited for previous time in custody and thus had for five months to serve after the conviction.
The facts in the case of Hamdan, who is now living freely in Yemen, was similar to a little-known criminal prosecution of a man who drove a member of a Pakistani extremist group. That man, Ali Asad Chandia, got a 15-year sentence in 2006, according to CAP:
In 2006, Ali Asad Chandia was convicted in a criminal court of material support for terrorism for driving a member of Pakistani extremist group Lashkar-e-Taibi from Washington National Airport and helping him ship packages containing paintball equipment back to Pakistan. Hamdan received a five-month sentence while Chandia got 15 years. Even if all of the time Hamdan served prior to his conviction in a military commission is counted, his total time in custody would be only eight years.
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