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Monday, December 09, 2019 {{ new Date().getDay() }}

This past Tuesday, a federal jury decided a terrorism case. And once again, the verdict is guilty. High profile terrorism cases, like the case of Tarek Mehanna, a 29-year-old American pharmacy school graduate who was on trial for providing material support to Al Qaeda operations and other terrorism charges because of his Internet writings and a trip to Yemen in 2004 (even though he never picked up a weapon or received any training), always end with a conviction.

In Mehanna’s case, the jury in Boston took more than a day to decide. His lawyers won some small victories – Mehanna’s parents stood by him with somber grace, a terrorism expert witness for the prosecution was shown to have received nearly $1 million in payments and nearly half his salary from government agencies in the past five years, and numerous specialists in counterterrorism (including former CIA case officer and NYPD advisor Marc Sagemen) testified for the defense – but none of it mattered. When a federal judge asks a jury to make a decision in a terrorism case, there is rarely an acquittal.

There have been over 300 individuals indicted for jihadist terrorism since 9/11, and 80 have gone to trial. The conviction rate for those that go to trial and those that reach a plea is nearly 90%, and when it comes to trials, there have been no acquittals since 2008 — even in cases like the 2009 “Newburgh Four” trial, when it was revealed that the government investigators had overreached by taking the lead in coming up with several elements of the plot including the ideological motive, the need for co-conspirators, and the choice and provision of weapons.

Up until now, convictions like that of Mahenna’s have been met with a sigh of relief. In particular, those who oppose military commissions for terrorists, myself included, rally around these verdicts with the gleeful coda that conviction proves that the criminal justice system can work for terrorism suspects. Meanwhile, conservatives misrepresent the strength of the courts when they foment worry about the theoretical prospect of terrorism acquittals.

But, like it or not, there is a deep and unsettling irony in the embrace of terrorism convictions as proof of a robust system. We have no doubt that a jury of twelve American citizens is capable of convicting, but can they entertain the possibility of an acquittal in a terrorism prosecution, especially when the case revolves around instances of free speech that contains content that many of us find objectionable?

This is not just splitting hairs. Those of us who advocate for the use of the federal court system (or “Article III courts,”), instead of military commissions or indefinite imprisonment for terrorists have trapped ourselves in a philosophically uncomfortable corner in which the only way to declare success for the court system is to point to its record of convictions. It is but one more example of showing how tough America can be, one more sign that national security is best handled without nuance, one more admission that there is zero tolerance for unpredictability in constitutional processes when it comes to terrorism cases.

By equating guilt and success, those of us who have championed the courts may have compromised more than was necessary – or ultimately useful.

The conviction of Tarek Mehanna may be proof that the courts can administer tough justice, especially when given broadly applicable material support laws that can prosecute aspirational behavior. But it is also proof that terrorism cases follow a different standard than the criminal justice system in general. This might be a politically viable approach for now, but the need to stack the deck may ultimately weaken the rule of law and the presumption of innocence that makes our justice system work.

In 2005, the Bush Administration listed the justice system as a weak counterterrorism tool in their official National Defense Strategy. The document claimed that “our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”

But six years later, it seems that the belief that the system was fair has not served defenders of the courts well. Few could have imagined that the reach of the law would become so vast and inescapable. The message is clear: Anyone who spouts the language of Islamic fundamentalism and pan-Islamist grievances – whether or not he commits or plans an act of violence – is an enemy of the state who should spend his life in jail.

Earlier this month, Congress passed and the President refused to veto the National Defense Authorization Act, despite its provisions for military detention for American citizens suspected of terrorism and its allowance for the possibilities of military trials. One can only wonder: Just how far from that 2005 National Defense Strategy statement have we as a nation have really come?

Karen J. Greenberg is the Director of the Center for National Security at Fordham University Law School and the author of The Least Worst Place: Guantanamo’s First 100 Days.

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