Loretta Lynch and terrorism prosecutions

With the swearing-in of Loretta Lynch as the nation’s 83rd attorney general Monday morning, President Obama has installed an experienced prosecutor to lead the national fight against terrorism. Although her nomination stalled for political reasons, now that she’s at the Justice Department’s helm we can expect to see a thoroughly apolitical approach to prosecuting those who threaten to harm us, in a manner that both keeps Americans safe and brings those who plot, assist or participate in terrorism to swift justice.

We already know U.S. federal courts are the most effective place to prosecute terrorists. Prosecutors such as Lynch herself have convicted hundreds of them – a powerful record compared to that of the fledgling military commissions system, which is still struggling to find solid ground at Guantanamo Bay.  Those military commissions have completed only eight cases in nearly 13 years, and four of its convictions have already been reversed on appeal.  Despite that weak showing, almost every time the government successfully seizes a terror suspect abroad and brings him to the United States for prosecution, some lawmakers eager to look extra-tough on terrorism object that the suspect should be sent to Guantanamo instead.  We expect the new Attorney General to put a stop to that distracting speculation and make clear that these cases belong in federal court. 

{mosads}The recently-announced prosecution of Mohanad Mahmoud al-Farekh in the Eastern District of New York – Lynch’s former district — is a terrific example of how the government should be handling terrorism. 

Initially detained by Pakistani forces and transferred to U.S. custody in March, Farekh is alleged to have be an al Qaeda operative. A U.S. citizen born in Texas whose family moved him to Jordan, Farekh was questioned in U.S. custody by a special interrogation team composed of FBI, CIA and Pentagon officials, and then advised of his Miranda rights.

Of course, we also know now that Farekh had previously been nominated by the Pentagon to a “kill list” of suspected terrorists, and that the CIA also pushed for the U.S. government to kill him. Justice Department officials apparently objected, and the government was able to work out an agreement with Pakistan that led to his safe arrest and transfer to the United States for prosecution.

For many reasons, that’s exactly as it should be. Not only might Farekh’s killing have been unlawful and immoral, but a living terror suspect is far more useful to the United States than a dead one. Like the vast majority of terror suspects, al Farekh, who was under U.S. surveillance for months, is believed to have been plotting terrorist activities with others – in his case, with other al Qaeda fighters in the tribal areas of Pakistan.  That means he likely has a good deal of useful information to share. Had he been killed by a U.S. drone, that intelligence would have been lost. 

Instead, Farekh is now in precisely the position so many other terrorist defendants have faced in the United States, and whom have proved supremely useful to U.S. counterterrorism efforts:  facing charges that could land him in prison for life. That gives him a powerful incentive to cooperate with federal authorities. Indeed, most terrorism prosecutions in U.S. federal courts rely heavily on former al Qaeda operatives-turned-informants after their capture.

That’s not something we’ve seen in the military commissions.  That may be because many interrogators who initially questioned detainees there either didn’t know how to handle their statements as potential evidence in future cases, or were told that wasn’t the objective. Many relied on abusive techniques that also tainted any information they might have learned. But the upshot is that the vast majority of the more than 700 detainees held at Guantanamo have been useless in the fight against terrorism. Meanwhile, federal court cases brought in New York, such as the prosecutions of eight different al Qaeda operatives linked to the 1998 bombings of U.S. embassies in Africa, have relied heavily on al Qaeda informants managed skillfully by seasoned U.S. interrogators.

Unfortunately, Congress, now debating the annual National Defense Authorization Act, seems set on maintaining the senseless ban on transferring Guantanamo detainees to the United States for trial.  It’s a counterproductive strategy that, along with other Congressional restrictions on detainee transfers, has made it nearly impossible for the president to close the Guantanamo detention facility, even though national security experts consistently maintain that it undermines U.S. national security.

The good news is that Loretta Lynch appears immune to that sort of political approach at the Justice Department. The government already has an effective machine for interrogating and bringing terrorists to justice, in a way that not only makes us safer but leaves us far more knowledgeable about what other dangers may be lurking. 

With politics finally set aside to confirm her, expect the new attorney general to keep keep her focus on effective law enforcement.

Eviatar is Human Rights First’s senior counsel for national security.