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The One That Got Away

Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad.

The Justice Department has a "history of securely detaining and successfully prosecuting terror suspects through the criminal-justice system." So insisted Attorney General Eric Holder in a June 9 press release announcing the transfer of Ahmed Ghailani to the civilian-justice system in New York. Ghailani bombed the U.S. embassy in Tanzania on Aug. 7, 1998, the same day his fellow al-Qaeda savages bombed the U.S. embassy in Kenya. At least 224 people were killed.

Ghailani will receive a trial in Manhattan federal court - the preferred theater of operations for the 1990s strategy of counterterrorism by indictment, to which candidate Barack Obama urged a return during the 2008 campaign. Holder maintains that vesting Ghailani with all the rights of an American citizen is preferable to the military-commission trial the Bush administration had planned for him at Guantanamo Bay. Twice endorsed by Congress, military commissions are on hold, though the Obama administration will be reinstating them later this year - and perhaps even reaffirming the Bush war policy (or what might today be called the Bush "overseas contingency" policy) of detention without trial for the enemy combatants we no longer call "enemy combatants."

In a separate press release, Holder recounted past terrorism prosecutions in civilian courts, which form the heart of his case for closing Gitmo. Many al-Qaeda operatives, he explained, had already been "charged for their roles in the attacks on the U.S. embassies in East Africa, including three defendants who were convicted after a six-month trial in early 2001." He pointedly noted that "those three defendants, and a fourth al-Qaeda member who was tried with them, were all sentenced to life in prison."

Unfortunately, at least as far as the embassy bombing case is concerned, the attorney general's effort to instill public confidence in the civilian system's capabilities is a whitewash: In reality, it was not four al-Qaeda members brought to New York for trial - it was five. The fifth defendant was Mamdouh Mahmud Salim. You probably don't know his name, but you should. He is the highest-ranking member of al-Qaeda ever brought to the United States for prosecution, one of bin Laden's closest advisers and one of al-Qaeda's founders.

Salim is an Iraqi, but the reason you've probably not heard his name owes only partially to the media's cardinal rule that "Iraq" and "terrorism" must never be uttered in the same sentence. The main reason for the lapse is the embarrassing fact that Salim never made it to the embassy-bombing trial. To borrow the attorney general's phrasing, he wasn't "successfully prosecuted" because he wasn't "securely detained."

On Nov. 1, 2000, while he was housed in Manhattan's Metropolitan Correctional Center (a stone's throw from the federal courthouse, as well as the headquarters both of the FBI and that of the NYPD), Salim was scheduled to meet for trial preparation with his attorneys - who, it goes without saying, were being paid by the American taxpayers he had sworn to kill. But Salim didn't see it as an opportunity to exercise precious due-process rights. Instead, it was his chance to execute the escape plot he had hatched with his fellow defendants.

Salim's plan was to kidnap his American lawyers in order to escape with his confederates. The effort was foiled, but not before Salim jammed a razor-sharpened comb, fashioned and concealed in his high-security cell, several inches through the eye and into the brain of Louis Pepe, a 42-year-old Bureau of Prisons guard. Officer Pepe survived, barely, but was left maimed and impaired.

Under the civilian-justice system's generous rules, Salim was severed from the embassy-bombing trial of his co-defendants. Attempting to kidnap and perhaps murder one's counsel can cause a knotty conflict of interest between attorney and client, interfering with Salim's Sixth Amendment right to effective assistance of counsel. To force Salim to face an imminent trial with brand-new counsel would have been terribly unfair, and to infect the case with his vicious attempted murder of a federal officer would have been downright prejudicial to the other terrorists - a violation of our enemies' Fifth Amendment right to due process. So Salim was dropped from the embassy-bombing trial.

He later pleaded guilty to the assault on Officer Pepe, a conviction Holder fails to mention in his list of DOJ's counterterrorism successes. Perhaps that's because Judge Deborah Batts, the Clinton appointee assigned to the case, declined to sentence Salim to life imprisonment. Judge Batts was unmoved by the government's contention that a terrorist's maiming of a prison guard might possibly have had something to do with terrorism. It didn't seem to matter that the attempted murder arose out of a plot designed to facilitate an al-Qaeda escape, or that Salim, who pled guilty to conspiracy, had admitted to planning the attack with another al-Qaeda member. Thus, the thoughtful jurist refused to apply the sentencing guideline that governs "federal crimes of terrorism. Though Batts did impose a term of 32 years, a federal appellate court finally reversed her absurd ruling last year, sending the case back to her court.

Holder contends that the civilian-justice system is the surest way for offenders to be "held accountable" for their actions. Salim, however, has never been brought to trial on the indictment that brought him here, the one involving al-Qaeda's conspiracies and the embassies it bombed eleven years ago. By contrast, even after Ramzi Yousef was convicted and sentenced to life imprisonment for the "Bojinka" plot to blow up U.S. airliners, he was forced to stand trial a second time for bombing the World Trade Center. After conviction, a second life sentence was imposed.

It's unlikely that the attorney general simply forgot about Salim. When Officer Pepe was attacked, Holder was deputy attorney general - the No. 2 official in the Clinton Justice Department. In fact, the maiming happened less than three weeks after 17 members of the United States Navy were killed in the USS Cole bombing. Maybe al-Qaeda hadn't heard that you can get indicted for that sort of thing.

By Andrew C. McCarthy
Reprinted with permission from National Review Online