Vice President Biden and former V.P. Cheney have been slugging it out publicly over the proper way to prosecute suspected terrorists. Biden went so far as to accuse Cheney of being "factually, substantively wrong." So we took a look, and found both men have been straining the facts:
- Cheney said that shoe bomber Richard Reid was tried in civilian court rather than a military tribunal "primarily because he pleaded guilty." In fact, 10 months passed between Reid’s arrest and his guilty plea, more than enough time to transfer him to the military system.
- Biden claimed that 300 terrorists have been convicted in civilian courts and "they’re all in jail." In fact, at least 25 have been released. And the 300 figure is dubious; President Obama himself puts the figure at 190.
Both men put their own spin on things by citing facts selectively.
- Cheney complained that Obama initially called the perpetrator of the 2009 Christmas Day bombing attempt an "isolated extremist." That’s true, but the president said in the same breath that an investigation was underway and that "we will not rest until we find all who were involved."
- Biden said only three terrorists had been tried in military tribunals and "two are walking the street right now." That’s also true — but the streets being walked are in Australia and Yemen.
- Cheney said that 12 percent of freed Guantanamo detainees were "recidivists." But that was never true unless those "suspected" of fighting the U.S. are counted. The most recent figure of "confirmed" recidivists is 9.6 percent.
The Battle of the Veeps unfolded in separate appearances on weekend TV public affairs shows by Vice President Joseph Biden and former Vice President Richard Cheney.
Shoe v. Underwear: The Bombers
Cheney has publicly criticized the Obama administration for allowing law enforcement to read Miranda rights to Umar Abdulmutallab, the Christmas Day underwear bomber. When "This Week’s" Jonathan Karl asked Cheney to differentiate the way Abdulmutallab was handled compared with how the Bush administration handled 2001 shoe-bomber Richard Reid, who was also read his Miranda rights and was charged in the civilian criminal justice system, this exchange took place:
Karl: This is very similar. [Reid] was somebody that was trying to blow up an airliner with a shoe bomb, and he was within five minutes of getting taken off that plane read his Miranda rights, four times, in fact, in 48 hours, and tried through the civilian system. Was that a mistake?
Cheney: Well, first of all, I believe he was not tried. He pled guilty. They never did end up having a trial. Secondly, when this came up, as I recall, it was December of ’01, just a couple of months after 9/11. We were not yet operational with the military commissions. We hadn’t had all the Supreme Court decisions handed down about what we could and couldn’t do with the commissions.
Karl: But you still had an option to put him into military custody.
Cheney: Well, we could have put him into military custody. I don’t — I don’t question that. The point is, in this particular case, all of that was never worked out, primarily because he pled guilty.
President Bush’s order establishing military commissions to try any non-U.S.-citizen who "has engaged in, aided or abetted, or conspired to commit, acts of international terrorism" was issued on Nov. 13, 2001. Cheney is correct to say that the apparatus for actually trying anyone before a military commission wasn’t yet operational, but the Nov. 13 order also gave the secretary of defense authority to take suspects such as Reid into custody, even if he was already in the custody of another part of the government. Cheney acknowledged this, but said that "all of that was never worked out, primarily because he pled guilty."
But Reid didn’t plead guilty until Oct. 4, 2002 – nearly 11 months after his arrest. Events suggest the guilty plea was a surprise to prosecutors — Reid had been scheduled for trial in November. For nearly a year, then, the Bush administration had the option of transferring Reid into military custody, but didn’t. Then-Attorney General John Ashcroft even discussed the idea with DoD early on, but the decision was made to proceed in the civilian system, according to Ashcroft, who was asked about the possibility at a press conference a little more than a month after Reid’s arrest.
Ashcroft, Jan. 16, 2002: I did confer with the Department of Defense and with their general counsel, and they had no objective [sic] to our proceeding in this manner.
Biden’s Elastic Numbers
Biden appeared on both "Meet the Press" and "Face the Nation" and argued that terrorists could be tried successfully in civilian courts.
Biden, "Face the Nation": There have been three people tried and convicted by the last administration in military courts. Two are walking the street right now. There have been over 300 tried in federal courts by the last administration and by us and they’re all in jail now. None of them are out seeing the light of day.
Biden is correct that only three cases have come to completion in military commissions; two defendants were convicted by jury and one pleaded guilty. Only one of the three was sentenced to life in prison: Ali Hamza Ahmad Suliman al Bahlul, a Yemeni, who was found guilty of conspiring to commit murder with Osama bin Laden and of other offenses, and is serving his time at Guantanamo. The other two are "walking the street," as Biden said – but not U.S. streets.
- Australian David Hicks pleaded guilty in 2007 to one count of providing material support to terrorism and received a sentence of seven years’ confinement. But a period of six years and three months of the sentence was suspended as part of a pre-trial agreement. Hicks served his time in Australia and is now free.
- Salim Ahmed Hamdan was convicted in 2008 of providing material support to terrorism. He received credit for the five years or so he was held at Guantanamo after being charged, leaving him about four months to serve. Later in 2008 he was sent to serve the last month of his sentence at home in Yemen, where he has been released.
But Biden was wrong when he claimed that none of the terrorists tried in courts "are out seeing the light of day" and that they are "all in jail now." At least 25 have been released or were scheduled to be freed by now, according to a tally kept by the New York University Center on Law and Security.
For example, Agron Abdullahu, an ethnic Albanian who was one of the so-called "Fort Dix terrorists," was released last March, according to the Federal Bureau of Prisons. Two defendants from the Virginia "jihad" case were released in 2006: Khwaja Mahmood Hasan and Donald Thomas Surratt II. Several members of the Lackawanna Six are free, including Faysal Galab, who was released in 2008. And one of the men convicted in the plot to bomb the Herald Square subway station in New York, James Elshafay, was released a year ago.
Biden also used a questionable figure when he claimed that 300 terrorists have been tried in federal courts. NYU’s most recent Terrorism Trial Report Card identifies only 174 individuals who were "convicted of terrorism or national security violations" by civilian courts between September 2000 and September 2009. And President Obama himself used a number on the lower end of the scale during a Feb. 7 interview with CBS News:
Obama, Feb. 7: [W]e’re not handling any of these cases any different than the Bush administration handled them all through 9/11. They prosecuted the 190 folks in these Article III [federal district] courts. Got convictions.
Obama drew his figure from a report issued by the group Human Rights First last June. A National Public Radio report tracked the 300 figure (which has also been used by Attorney General Eric Holder) to a 2009 budget request made by the Bush administration’s Department of Justice. In the request, the department claimed its work had "resulted in the securing of 319 convictions or guilty pleas in terrorism or terrorism-related cases arising from investigations conducted primarily after September 11, 2001." But a media relations officer at DOJ told us she could not verify those numbers.
The truth is, the truth is rather flexible in this area, depending on how the universe of defendants is defined. For example, what is "terrorism-related"? Should terrorism suspects convicted of only immigration violations be counted in every case, or some, or no cases? Karen Greenberg, the NYU center’s director, told us that one "can come up with any number by putting whatever you’d like to in a category and that’s not particularly helpful." For example, her center counts 523 who have been convicted of "terrorism-related" charges, but that includes lesser offenses. The 174 figure refers to those convicted of more serious crimes.
"Isolated" or Cog in a Scheme?
Cheney criticized President Obama’s use of the phrase "isolated extremist" during his first address to the nation following the failed Christmas Day bombing attempt:
Cheney: In Detroit, when he went out and said this was the act of an isolated extremist. No, it wasn’t. And we found out over time, obviously — and he eventually changed his — his assessment — but that, in fact, this was an individual who’d been trained by al Qaeda, who’d been part of a larger conspiracy, and it was closer to being an act of war than it was the act of an isolated extremist.
It is true that Obama did refer to the would-be bomber as an "isolated extremist" in comments to the press on Dec. 28:
Obama: This incident, like several that have preceded it, demonstrates that an alert and courageous citizenry are far more resilient than an isolated extremist.
But the fact is that federal officials already had linked the suspect publicly to al Qaeda at the time the president spoke. A day earlier, on Dec. 27, federal officials charged Abdulmutallab with trying to blow up an airliner. Unnamed law enforcement officials were quoted by the New York Times and others as saying that the suspect had claimed to have gotten explosives from an al Qaeda bomb expert in Yemen, and that the officials had no reason to doubt the claim. Democratic Rep. Jane Harman, head of the Homeland Security subcommittee on intelligence, issued a public statement saying "there are strong suggestions of a Yemen-Al Qaeda connection."
Obama would have been aware of the charges and the suspect’s statements to authorities. Furthermore, Obama made clear in his remarks – the same remarks in which he used the word "isolated" – that officials were still seeking possible co-conspirators:
Obama: A full investigation has been launched into this attempted act of terrorism, and we will not rest until we find all who were involved and hold them accountable.
And he also said that "[w]e do not yet have all the answers," and he promised to "continue to use every element of our national power" against terrorists — "whether they are from Afghanistan or Pakistan, Yemen or Somalia, or anywhere where they are plotting attacks." We can’t say what Obama meant when he said "isolated," and Cheney is entitled to criticize Obama’s choice of words. But we can say as a matter of fact that the Obama administration was pursuing an alleged al Qaeda connection even before Obama spoke.
Cheney was off when he mentioned the percentage of Guantanamo detainees who have been fighting the U.S. since being freed:
Cheney: I think — as I recall, the percentage that we had of the recidivists was 12 percent. And we released prisoners back basically to their home countries, partly because the State Department was under enormous pressure to do so, and there was an effort to try to return them.
Cheney was both exaggerating and using outdated numbers. As we pointed out in May, the 12 percent rate included former detainees confirmed or suspected of fighting the U.S. And even at the time that figure was out of date. In March 2009, according to the Pentagon, only 5 percent were confirmed to have joined the fight, with another 9 percent suspected of having done so — a total of 14 percent.
Even more recent figures, conveyed to House Speaker Nancy Pelosi earlier this month by John Brennan, the president’s senior counterterrorism adviser, show that 20 percent are now “confirmed or suspected of recidivist activity.” But it’s still just 9.6 percent who are confirmed recidivists. The remaining 10.4 percent are “detainees who the Intelligence Community suspects, but is not certain, may have engaged in recidivist activities.”
Brennan, incidentally, stressed in that letter that all of those cases involve former detainees released by the Bush administration, and that none of those released under Obama have yet been tagged as recidivists. He attributes that fact to “significant improvements to the detainee review process” under Obama.
–by Justin Bank and Viveca Novak
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Brennan, John O., Letter to House Speaker Nancy Pelosi. 1 Feb 2010.
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