Dear Mr. Attorney General:
I write to express my strong opposition to the Administration's decision to treat two foreign fighters as civilian criminal suspects rather than foreign enemy combatants. I request that you provide information related to this decision, as set out below, including the resulting determination to try these combatants in federal civilian court in Bowling Green, Kentucky.
As you know, Waad Ramadan Alwan and Mohanad Shareef Hammadi are not United States citizens or legal permanent residents of this country. They are foreign nationals who apparently entered this country illegally after having fought our troops in Iraq.
In addition, as the United States Attorney for the Western District of Kentucky has noted, none of their actions--both those from the past and those they planned for the future--relate to targeting our civilian population in this country. In Iraq, Alwan conducted IED attacks against our troops for several years; and he claimed he was "very good with a sniper rifle," even bragging that his "lunch and dinner would be an American." Hammadi also engaged in IED attacks in Iraq and was part of a group of insurgent fighters that possessed eleven surface-to-air missiles. In this country, they planned to equip their fellow fighters in Iraq with military hardware to use against our troops overseas in the form of rocket-propelled grenade launchers, Stinger missiles, machine guns, sniper rifles, and cases of C-4 explosives.
Law enforcement performed expertly in this matter. But our priority with enemy combatants like these should be to capture, interrogate, and detain them--indefinitely, if need be. If, after these priorities are achieved, we determine they should be tried for violating the laws of war, we should use our military commission system to do so. Our civilian criminal justice system simply is not intended for these purposes. As the 9-11 Commission noted, the civilian law enforcement process has a singular focus: "proving the guilt of persons apprehended and charged."
You have a different view of the capability of our civilian courts, calling them "our most effective terror-fighting weapon." This astounding statement leads to the following questions:
My colleague Senator Schumer called your decision to try Khalid Sheik Mohammad and other planners of the 9-11 attacks in our civilian courts "wrong-headed." He has noted also that "those who commit acts of war against the United States, particularly those who have no color of citizenship, don't deserve the same panoply of due process rights that American citizens receive." You now have determined to give foreign combatants Alwan and Hammadi, who came off a foreign battlefield and have no color of citizenship, the full panoply of rights that Americans receive. Is it your position that regardless of the place of capture--whether overseas (in the case of KSM) or in this country (in the case of Alwan and Hammadi)--foreign fighters are entitled to all the rights and privileges of citizens of the United States?
The civilian proceedings against Zacarias Moussaoui, an Al Qaeda member who was involved in the 9-11 attacks, spanned nearly a decade, and was finally resolved only last year. These proceedings cost millions of dollars and caused substantial civic disruption. For example, the federal courthouse in Alexandria, Virginia, was described as "an armed camp" with the courthouse complex and surrounding neighborhood becoming a "virtual encampment, with heavily armed agents, rooftop snipers, bomb-sniffing dogs, blocked streets and identification checks."
What security upgrades, if any, is your Department planning for the civilian trial of Alwan and Hammadi at the federal courthouse in Bowling Green, Kentucky?
What is the estimated cost of this trial, including any security upgrades for the courthouse facility and for court personnel and jurors?
What is the estimated cost to the Commonwealth of Kentucky and the City of Bowling Green for their expenses associated with the civilian proceedings against Alwan and Hammadi?
Do you commit that your Department will reimburse fully the state and local governments for any and all costs they incur in these proceedings?
I understand that classified national security information will be presented in the civilian proceedings against Alwan and Hammadi. Previous civilian trials of foreign terrorists have compromised such information to the detriment of our national security. For example, the civilian prosecutions of Omar Abdel Rahman (the "Blind Sheik"), Ramzi Yousef, and Zacarias Moussaoui, among others, all compromised classified or sensitive national security information. Your department at least has tacitly acknowledged that the rules governing military commission proceedings provide a superior means of safeguarding such information. In addition, the state-of-the-art courtroom at Guantanamo Bay, Cuba, has the technological capability to limit the dissemination to third parties of national security information that is disclosed during court proceedings.
What procedures or safeguards will your department employ to ensure that the civilian prosecution of Alwan and Hammadi will not compromise classified or sensitive national security information as has occurred in other civilian prosecutions of foreign terrorists?
Because such national security information could be disclosed during court proceedings, does your department plan on installing technology similar to that which exists at Guantanamo Bay to minimize the dissemination of such information in the event it is disclosed?
Conversely, will the effort to protect national security information in a civilian forum where Alwan and Hammadi will enjoy the full panoply of constitutional rights inhibit the ability punish them to the fullest extent of the law?
The administration has acknowledged that enemy combatants held at Guantanamo Bay can be detained indefinitely under the law of war, wholly apart from the ability to incarcerate them following a conviction in a military commission. And the United States Circuit Court for the District of Columbia has ruled that even if detainees at Guantanamo Bay prevail on a claim of habeas corpus, they do not have the right to be released into the United States. By contrast, once foreign nationals are placed into the civilian justice system, they later can be released into society even after they are convicted of serious felonies. See, e.g., Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008) (foreign national who murdered his wife, pled guilty, and was sentenced to eighteen to twenty years in prison, was later ordered released into the United States when the government could not remove him). The administration, itself, has acknowledged this possibility. What assurance can you provide that Alwan and Hammadi will not be released into the United States if they are not convicted, or if they are convicted, once they complete their sentences?
The 9-11 Commission observed that "an unfortunate consequence of [past] superb investigative and prosecutorial effort was that it created an impression that the law enforcement system is well-equipped to cope with terrorism." It is evident that you still cling to this misimpression, and have compounded this mistaken view by using your position to argue that our civilian justice system is, in fact, without equal in dealing with this unconventional threat.
The decision to treat foreign fighters like Alwan and Hammadi as civilian criminal defendants was ill-advised. In the War on Terror, our government must place a higher priority on gathering intelligence and removing foreign fighters from the battlefield than on bringing a civilian prosecution. By doing so, we can maintain pressure on the higher echelons of Al Qaeda and its affiliates. The approach you have taken will not achieve these goals. Instead, it will needlessly increase costs, cause civic disruption, raise the risk of compromising classified information, and risk the eventual release of these combatants into American society, regardless of whether they are convicted in a civilian court. Not surprisingly, your decision is opposed widely by my constituents and by their elected leaders, of both political parties, at the state and federal levels. I urge you to reconsider it, and I request prompt answers to my questions.