Senator McConnell's Guantanamo Rhetoric Needs a Reality Check

Adam Jacobson
Program Assistant, Law and Security

For the past two weeks, Senator Mitch McConnell (R-KY) has waged a campaign of fear and inaccuracy in an attempt to discredit our nation's federal courts and their ability to try terrorism suspects. He would rather have their trials in the flawed military commissions system at Guantanamo Bay, and doesn't mind stooping to fearmongering to make his point.

The case which has rankled Senator McConnell is that of Ramadan Alwan and Mohanad Shareef Hammadi, two Iraqis who allegedly attacked American troops in Iraq and, after making their way to the U.S., allegedly sent weapons and money to al Qaeda in Iraq. They were arrested in May, following a two-year FBI investigation.

Senator McConnell's most recent op-ed, titled "Terrorists Belong in Guantanamo, Not Bowling Green" starts with the ominous threat,

"A few weeks ago, it would have been safe to say not a single foreign terrorist in the world could find Bowling Green, Kentucky, on a map. But after the ill-advised decision of the Obama Administration to try two foreign fighters in a civilian federal court in Bowling Green, they probably know where it is now."

Before Kentuckians start panicking, let's have a reality check: Federal courts have convicted over 400 individuals of terrorism-related crimes since 9/11 in 55 federal districts across the country. And as Attorney General Eric Holder recently pointed out, "Not one of the judicial districts involved has suffered retaliatory attacks."

Senator McConnell trots out all the tired canards to push for military commissions trials. He says that Alwan and Hammadi don't deserve "all the rights and privileges of American citizens" they would receive by trying them in federal court. Senator McConnell might want to take another look at the Constitution, which affords rights to all people - whether they are citizens or not - that reside within the United States.

With a backhanded acknowledgement of the hard-working law enforcement and prosecutors, Senator McConnell admits that it would be possible to try the men in federal court. But, he adds, "After Congress created a $200-million, state-of-the-art facility in Guantanamo Bay precisely to handle foreign fighters like them, why would we want to?"

Imagine you were going in for a routine operation, and the surgeon said, "Well, we could do this the way we've always done it - the reliable, time-tested way, the way everyone else has always had it done - OR we could use a fancy new method we're not sure really works." Most (if not all) of us would prefer option one. With a proven track record, federal courts have the experience to try terrorism-related cases, while military commissions are the real unnecessary, chancy option. Compared to the 400 individuals convicted of terrorism-related crimes in federal courts since 9/11, military commissions have convicted only six in the same time.

Senator McConnell worries that classified information would be exposed in a federal court trial. But again, his fear is groundless, as federal courts have mechanisms in place to deal with this exact issue. Human Rights First's report "In Pursuit of Justice" found that in no terrorism case has sensitive information been divulged when the government has used these mechanisms. The military commissions system's rules for dealing with classified information are even modeled after the rules used in federal courts.

"And what happens if these detainees are acquitted, as nearly happened with Ahmed Ghailani?" Senator McConnell wonders. The key word here is "nearly." Ghailani, the first Guantanamo detainee to be tried in federal court, for his role in the attacks on American embassies in Kenya and Tanzania, was convicted of conspiracy and sentenced to life in prison. The trial was held in Lower Manhattan, and went off without a hitch, with no courtroom incidents, no attempted jailbreaks, not even any street closures.

Senator McConnell also cites the case of Zacarias Moussaoui, whose federal court trial in Alexandria, Virginia tied up the area and made it inconvenient for residents. Moussaoui, the so-called "20th 9/11 hijacker" was convicted and was sentenced to life in federal prison for his role in planning the 9/11 attacks. Lieutenant General Ed Soyster lives in an apartment building that overlooks the federal courthouse in Alexandria and told us that he watched the security around the trial. He said that traffic was "tied up" for a full five minutes.

These trials and sentences in federal courts represent true justice. What isn't justice is holding criminals without a trial, as Senator McConnell, a lawyer himself, should know. Instead, he writes:

"Now, if a Guantanamo detainee is acquitted of a crime, the military can still detain him there under the law of war. Even if the military does not have evidence to hold him indefinitely, a federal court has ruled that foreign nationals at Guantanamo do not have the right to be released into our country. If a detainee is acquitted in a civilian court, however, the government's ability to continue to detain them indefinitely is far less certain."

The idea of holding people indefinitely who have been tried and acquitted flies in the face of our country's most basic values. In a country of laws, if you are found "not guilty," you are not guilty. Otherwise, why even have a trial? Senator McConnell seems to think that the presumption of innocence should be ignored whenever convenient.

Without going into detail about the conclusion of his op-ed (he implies that Attorney General Holder hates the troops and that President Obama doesn't respect freedom of speech), it's clear that Senator McConnell is ignoring the facts and using fear to score political points. The residents of Bowling Green should ignore his fearmongering and trust that our federal courts can handle these and any other terrorism-related cases.

Learn more about our work on prosecuting terrorism, and see what else we've been doing to fight fearmongering.