U.S. District Judge John C. Coughenour might have had something to say if he had done his job. Yes, if the Seattle judge in the millennium-bombing case had thrown the book at Ahmed Ressam, Coughenour's gratuitous words at sentencing might have been tolerable -- but probably not.
Last week, you see, he sentenced Ressam to 22 years for plotting to bomb the Los Angeles airport on the eve of the millennium. Prosecutors had sought a 35-year sentence. With credit for time served and time off for good behavior, the Algerian could be out in 14 years -- for trying to kill hundreds of innocents. No wonder he flashed a quick grin upon hearing his sentence.
Yes, Ressam cooperated for a while in exchange for a reduced sentence and provided vital help. But he stopped cooperating, which means prosecutors now must drop charges against two of his co-conspirators.
Coughenour said he struggled with this sentence, but he spared himself any (justified) self-criticism. His strategy seemed to be that the best defense of this measly sentence was a good offense. He made the day not about the wickedness of Ressam and terrorists, but the misdeeds of the Bush administration in the war on terror.
He claimed the case proved the U.S. court system works, despite the fact Ressam was not a U.S. citizen and tried to come here to kill Americans. We didn't need secret military tribunals. We didn't need to detain the defendant indefinitely as an enemy combatant or deny him the right to counsel. "Unfortunately, some believe this renders our Constitution obsolete," he harangued. "If that view is allowed to prevail, the terrorists will have won."
If the judge had actually sentenced Ressam to 35 years, his cliches might not have been so offensive. But probably not, for they bear scant relation to the multi-pronged reality of the Bush's administration's anti-terror approach.
Since 9/11, prosecutors have used the U.S. criminal justice system and its protections to break up terror cells across the country. Shoe-bomber Richard Reid and 20th hijacker Zacarias Moussaoui (not U.S. citizens) have had their days in U.S. courts. Coughenour seems lost in Michael Moore's America. He's not living in George Bush or John Ashcroft's America. The administration has consistently worked to use our justice system when and where it's appropriate.
"Some believe this renders our Constitution obsolete" -- a portentous little phrase, this bit of Coughenour rhetoric. It sure would have been sporting if the judge had named names. Certainly, there's been nobody in the Bush administration who has said that 9/11 makes the Constitution obsolete. As for actions, the most controversial -- the military tribunals for "enemy combatants," foreign and home-grown -- have been held constitutional or are on appeal. The Supreme Court upheld the "enemy combatant" status of Yasser Hamdi, a U.S. citizen captured in Afghanistan.
As for foreign nationals, a unanimous panel of the U.S. Court of Appeals for the District of Columbia just held that the president has the constitutional authority to convene military tribunals. In fact, these tribunals will be open to the public except when necessary to protect national security. Media, family and diplomatic representatives may attend the hearings. Defendants will have a military defense counsel and may have civilian counsel appointed as part of the team. Yes, the rules governing these tribunals are different from those in Coughenour's court. But these enemy combatants happened to be picked up on battlefields.
That's exactly the question now before the Fourth Circuit Court of Appeals in the Jose Padilla case: What constitutes the battlefield in the war on terror? Is it just Afghanistan or Iraq or does it extend to U.S. territory?
Padilla is a U.S. citizen, but after training in Afghanistan and meeting with top al-Qaida leaders, he returned here to blow up apartment buildings. He was arrested in Chicago and now sits, uncharged, in a military brig. This is the toughest case to defend. Both sides have legitimate arguments. But some allowance of the new, life-and-death issues this new war presents -- prosecuting him in U.S. courts without jeopardizing intelligence sources -- would be helpful. Even judicious.
Instead of sparing Ahmed Ressam 13 years in the slammer, Judge Coughenour should have spared us the grandstanding and cheap shots.
David Reinhard
