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Moving Terrorist Detainees to Virginia

Editor’s Note: A lot of you guys have heard Ken speak. He spoke at the RedState Gathering in Atlanta. We absolutely need him in office. You can contribute to him here –Erick.

According to the Washington Post, the Obama Administration is pushing to transfer some of the terrorist detainees currently held at Guantanamo Bay, Cuba into the Commonwealth of Virginia for trial in a U.S. federal criminal court. (See Daily Virginia Roundup, The Washington Post, 08/04/09; Security Worries in the Suburbs, The Washington Post, 03/25/09) The Post has speculated that these detainees may be tried in the federal courts in Alexandria. However, regardless of exactly where in Virginia these detainees end up, I am strongly opposed to the idea of bringing any of these terrorists into the Commonwealth, and even more strongly opposed to the very concept of using criminal prosecution to fight the War Against Terrorism. I believe this Administration plan, if implemented, would: ignore the benefit of using Guantanamo Bay; impede our conduct in that war; be cost-prohibitive to our government and physically dangerous to our citizenry; be largely ineffective in punishing these terrorists; and be totally unprecedented in U.S. history. And as Attorney General of Virginia, I promise that I will do all that I can to stop the Administration from implementing this plan.

First of all, part of the benefit of having a facility such as Guantanamo Bay is to hold people such as terrorist detainees. It is the ideal location. It is isolated from civilian populations and it is impossible to escape from.

Second, moving these detainees to the Commonwealth would impede our conduct of the War Against Terrorism. The fact is this nation is currently at war with Islamic jihadist groups worldwide, including but not limited to al Qaeda, who seek to force the entire world’s population to convert to their own extreme branch of Islam. As a nation at war we are utilizing our military to physically attack our enemies, to gather intelligence, to detain captured opponents until the fighting is done, and to prevent future enemy attacks. This is what our military is trained to do. However, by transferring these Gitmo detainees to our criminal courts for prosecution, the Obama Administration will be asking the military to perform law enforcement functions in the War Against Terrorism. Thus, our military will be forced to retrain its officers to read Miranda warnings to detainees captured on the battlefield before interrogating them, to use warrants from the court system, and to learn how to gather evidence without violating any detainee’s “rights.” This is not what they are currently trained to do, and it is not what they should be asked to do.

Third, moving these detainees is both cost-prohibitive to our government and physically dangerous to our citizenry. As the Washington Post has noted, the Alexandria trial of Zacarias Moussaoui, who was convicted of conspiring in the attacks of Sept, 11, 2001, “turned the neighborhood into a virtual encampment, with heavily armed agents, rooftop snipers, bomb-sniffing dogs, blocked streets, identification checks and a fleet of television satellite trucks.” (Security Worries in the Suburbs, The Washington Post, 03/25/09) All of these measures cost a great deal of money for the City of Alexandria, and all of these measures were for the prosecution of only one terrorist. According to the Post, “(c)ity officials and some legislators are concerned that terror trials would take years, shut down roads and cost millions and could invite attacks from terrorist sympathizers. Business owners in the dense area around the courthouse — newly filled with hotels, restaurants and luxury apartments — fear disruptions amid a declining economy.” Id. The physical danger to our citizenry is also not to be dismissed. Let us not forget the U.S. trial of Mamdouh Mahmud Salim, a co-founder of al-Qaeda, who was prosecuted for his participation in the 1998 U.S. embassy bombings, which killed hundreds of people in truck bomb explosions at the U.S. embassies in Tanzania and Kenya. As a defendant in the civilian criminal trial in the U.S., Salim was given great access to his lawyers and he used this access to attempt an unsuccessful escape that resulted in physical injuries to two guards, one of whom was permanently maimed in the assault.

Fourth, moving these detainees into the U.S. court system would not be a very effective strategy in fighting and punishing the terrorists. It has been tried before – during the 1990’s – and been found wanting. Andy McCarthy, who was a Manhattan criminal prosecutor of terrorists in the 1990’s, has written numerous op-eds, columns, and even an entire book on the failure of using criminal prosecution to fight terrorism. Regarding the 1993 World Trade Center prosecutions he has stated “while the government managed to prosecute many people responsible for the 1993 WTC bombing, many also escaped prosecution because of the limits on civilian criminal prosecution. Some who contributed to the attack, like Khalid Sheikh Mohammed, continued to operate freely because they were beyond the system’s capacity to apprehend. Abdul Rahman Yasin was released prematurely because there was not sufficient evidence to hold him — he fled to Iraq, where he was harbored for a decade (and has never been apprehended).” (Obama’s America Is September 10th America, National Review Online, 06/16/08) Overall, McCarthy has noted that “we used the criminal justice system as our principal enforcement approach … for eight years — from the bombing of the World Trade Center until the shocking destruction of that complex on 9/11. During that timeframe, while the enemy was growing stronger and attacking more audaciously, we managed to prosecute successfully less than three dozen terrorists (29 to be precise). And with a handful of exceptions, they were the lowest ranking of players.” Id.

Finally, moving these detainees into the U.S. criminal court system is historically unprecedented. The Constitution, the court system it has created, and the individual rights it protects, are specifically intended for the benefit of American citizens and/or legal residents (who receive similar rights). Detainees captured on a foreign battlefield, including all the men held in Guantanamo, are, of course, in neither category. During World War II, the U.S. held millions of German combatants within the territorial U.S., and none of them were ever afforded the benefits that come with a criminal trial. In fact, in over two hundred years of history, the U.S. has never once afforded foreign enemy combatants such benefits.

As a candidate for public office, I feel obligated to express my opposition to the possible transfer and trial of these Gitmo detainees in the Commonwealth of Virginia. And if I am elected Attorney General, I will explore any legal options we might have to resist this ill-considered, certainly expensive and possibly dangerous Administration plan.

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