Trying Terrorists in Federal Court is Risky Business

June 18th, 2014

It’s a little ironic that the announcement of the capture of Libyan militia leader Ahmed Abu Khatallah by U.S. Special Forces and the FBI would happen on the 20th anniversary of the famous OJ Simpson Bronco chase through the streets of Los Angeles.

What’s the connection you ask?

The answer lies in the simultaneous announcements by Pentagon officials and Attorney General Eric Holder that Abu Khattalah will be tried in a United States Federal District Court for his role in the attack on the U.S. consulate in Benghazi, Libya, on September 11, 2012.

As Americans, we are quite proud of our justice system as well we should be.  It is designed to assure that the innocent are protected while the guilty are punished.  Occasionally, however, the clearly guilty walk free, much to the chagrin of the citizenry at large, but we deem this snafu in the system the price we pay for avoiding falsely imprisoning or worse yet executing innocent people.

Many on the left believe that the way to deal with terrorists is through the United States courts rather than with military tribunals.  They cite a better record of convictions in federal district courts and longer incarcerations.

While individuals committing terrorist acts may believe they are engaging in acts of war against the United States, the thinking goes that these individuals are actually participating in criminal enterprises and should be treated as such.

When a conviction is achieved, this theory meets its objective.  If the terrorist defendant ever walks free, however, the public might not be so supportive of this method.  Likely, a single acquittal in such a case would forever end this approach to fighting terrorism.

This is where OJ and the Bronco chase comes in.

Who can ever forget the acquittal of OJ Simpson for the murder of his ex-wife, Nicole Brown Simpson and her friend, Ron Goldman?  Most Americans strongly believed that OJ was clearly guilty.  The only individuals who ultimately mattered in that case, the jury, disagreed and OJ walked out (temporarily) a free man.

The OJ Simpson trial demonstrates that even in a judicial system like our own, there is no such thing as a slam dunk conviction in an American criminal court.  The burden of proof for conviction is high, and thus acquittal is never out of the question.

In the nearly two years since the Benghazi attack, the public and press openly asked why Abu Khatallah walked free while under clear suspicion of involvement in the murders of four Americans.  During that time, Abu Khatallah conducted interviews and famously drank strawberry frappes in public places.

Now that he’s been captured and is being hauled albeit very slowly across the ocean to trial, the fact that he remained free for so long is not all that surprising.  If you think of Abu Khatallah as a terrorist enemy of the state it would stand to reason that he would already have been captured by now.  If you regard him instead as a criminal suspect, it’s not at all surprising that he walked free for so long while prosecutors worked to build a case against him.

Guantanamo Bay provides a laboratory of sorts as to the difficulty in using the criminal justice system in this manner.  Many detainees currently there are regarded as too dangerous to release but for whom there is not enough evidence to achieve a conviction in a U.S. criminal court. Ultimately, what should or will be done with these people?

Since the Obama administration clearly intends to go the criminal justice route in this case, let’s hope Abu Khatallah doesn’t find the modern day equivalent of Johnnie Cochran to defend him and thus walks free to attack Americans again another day.

If that happens, in the future, the June 17th anniversary will stand out in more ways than one.