Politics as Usual: Republicans Desperately Seek Outrage to be Relevant

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


U.S. Attorney General Eric Holder recently appeared before a U.S. Senate committee hearing to explain his decision to prosecute Khalid Sheikh Mohammed, and his four co-conspirators, in federal civilian court rather than let them be tried before a military commission under the 2009 Military Commissions Act. There were a number of sharp, biting exchanges between Holder and Republican senators, all of whom have joined ranks in a calculated political agenda to oppose the Obama administration not only on this decision but any decision it makes on any front.


Sen. Lindsay Graham, R-SC, vigorously questioned Holder about Osama bin Laden should he be captured. Would the self-proclaimed jihadist be considered a criminal terrorist or an ‘unprivileged belligerent” (previously known as “enemy combatants” under the 2006 Military Commissions Act)? As a criminal terrorist, bin Laden, of course, would enjoy the same constitutional protections as any criminal defendant, including right to remain silent, right to counsel, and right not to be tortured. Sen. Graham’s line of questioning indicated he would be shocked and appalled were the world’s most wanted terrorist be given such constitutional protections upon capture.


Sen. Graham has a short memory. It was a Republican-led Congress in 1996 that enacted (and was signed into law by then President Bill Clinton in April of that year) the Anti-Terrorism and Effective Death Penalty Act (AEDPA). This law was enacted primarily in response to the 1995 Oklahoma City and 1993 World Trade Center bombings. AEDPA was codified as 18 U.S.C. Sec. 2332b. This statute defines the term “Federal crime of terrorism” as an offense that “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” ADEPA designated the following list of already prohibited crimes as acts of “terrorism”:


  • 18 U.S.C. § 32 – destruction of aircraft or aircraft facilities
  • 13 U.S.C. § 37 – violence at international airports
  • 18 U.S.C. § 81 – arson within special maritime and territorial jurisdiction
  • 18 U.S.C. § 175 – relating to biological weapons
  • 18 U.S.C. § 229 – relating to chemical weapons
  • 18 U.S.C. § 351 – congressional, cabinet, and Supreme Court assassination and kidnapping
  • 18 U.S.C. § 831 – relating to nuclear materials
  • 18 U.S.C. § 832 – participation in nuclear and weapons of mass destruction threats to the United States
  • 18 U.S.C. § 842 – relating to plastic explosives
  • 18 U.S.C. § 844(f) – arson and bombing of Government property risking or causing death
  • 18 U.S.C. §  844(i) – arson and bombing of property used in interstate commerce
  • 18 U.S.C. § 930 – killing or attempted killing during an attack on a Federal facility with a dangerous weapon
  • 18 U.S.C. § 956 – conspiracy to murder, kidnap or maim person abroad
  • 18 U.S.C. § 1030 – relating to protection of computers
  • 18 U.S.C. § 1114 – killing or attempted killing of officers and employees of the United States
  • 18 U.S.C. § 1116 – murder or manslaughter of foreign officials, official guests, or internationally protected persons
  • 18 U.S.C. § 1203 – hostage taking
  • 18 U.S.C. § 1362 – destruction of communication lines, stations or systems
  • 18 U.S.C. § 1363 – injury to buildings or property within special maritime and territorial jurisdiction of the United States
  • 18 U.S.C. § 1366 – destruction of an energy facility
  • 18 U.S.C. § 1751 – Presidential and Presidential staff assassination and kidnapping
  • 18 U.S.C. § 1992 – terrorist attacks and other acts of violence against railroad carriers and mass transportation  system on land, on water, or through the air
  • 18 U.S.C. § 2155 – destruction of national defense materials, premises or utilities
  • 18 U.S.C. § 2280 – violence against maritime navigation
  • 18 U.S.C. § 2281 – violence against maritime platforms
  • 18 U.S.C. § 2232 – certain homicides and other violence against United States nationals occurring outside of the United States
  • 18 U.S.C. § 2232a – use of weapons of mass destruction
  • 18 U.S.C. § 2232b – acts of terrorism transcending national boundaries
  • 18 U.S.C. § 2232f – bombing of public places and facilities
  • 18 U.S.C. § 2332g – missile systems designed to destroy aircraft
  • 18 U.S.C. § 2232h – relating to radiological dispersal devices
  • 18 U.S.C. § 2339 – harboring terrorists and providing material support to terrorists or terrorist organizations, financing terrorism, or military-type training from a foreign terrorist organization
  • 18 U.S.C. § 2240A – relating to torture


Thus, anyone who commits any one or more of the aforementioned crimes is a terrorist within the meaning of AEDPA. Osama bin Laden was first indicted in the United States as a “terrorist” under AEDPA on June 8, 1998, charged with the killing of five Americans and conspiracy to attack defense facilities in the United States in connection with the attack on a Saudi national guard training center in Ryadh. He was again indicted in the United States on November 4, 1998 for the murder of U.S. nationals outside the United States in connection with the bombings of U.S. embassies in Kenya and Tanzania. Finally, on October 10, 2001 the FBI placed bin Laden on its 22 Most Wanted Terrorists list under the direction of former President George W. Bush in connection with bin Laden’s involvement in Twin Tower attacks in New York City on September 11, 2001.


There can be no dispute that the Republican-led Congress not only set out the parameters of a “federal crime of terrorism” with AEDPA but it also provided a long list of offenses that constitute acts of terrorism. Osama bin Laden, therefore, has been a “criminal terrorist” since the enactment of AEDPA in 1996 and a criminal defendant/terrorist since his indictment in 1998. He was then officially designated as a “criminal terrorist” by the George W. Bush administration in 2001.

Thus, under the very specific Congressional intent (shaped by Republicans) of AEDPA, Khalid Sheikh Mohammad (and his co-conspirators), the mastermind of the 9/11 attacks, is a criminal terrorist who should be indicted and prosecuted in a federal civilian court just as bin Laden, the person who allegedly approved and ordered the 9/11 attacks, has been indicted and will be prosecuted in federal court once he is captured. That is precisely why the Republican-led Congress enacted AEDPA in response to the two high-profile terror bombings of New York’s World Trade Center and the Oklahoma City federal building.


The term “enemy combatant” (which has been replaced by the Obama administration with the term “unprivileged belligerent”) was coined by the Bush administration to classify “terror suspects” held at the military detention facility in Guantanamo Bay, Cuba (“Gitmo”). Gitmo established as the final detention prison for those “terror suspects” captured, kidnapped, and tortured by the CIA and military authorities around the world. The intent of the Bush administration was to house these terror suspects indefinitely outside the boundaries of the United States so they would not enjoy any civil or constitutional protections; nor any legal remedy to challenge their illegal kidnappings, torture and rendition by the CIA and other American authorities.


Republicans hailed this “enemy combatant” detention policy not only as righteous just desserts for the terror suspects (many of whom were later determined to be innocent of any acts of terrorism) but as the safest way to protect America from any kind of terrorism threat. But apparently these same Republicans forgot about ADEPA they enacted in 1996 as the appropriate and proper way handle the very crimes of terrorism all the Gitmo detainees were “suspected” of committing. The passage of the Military Commissions Act (“MCA”), either in 2006 or 2009, cannot constitutionally trump ADEPA simply by applying the MCA to acts of terrorism committed prior to the enactment of the MCA. That raises all sorts of ex post facto implications.


But that is a legal issue that begs consideration in another forum. The issue of the moment is that Sen. Graham should not have to ask Attorney General Holder whether bin Laden is a criminal terrorist or an “enemy combatant.” He was indicted as a terrorist under AEDPA, the terrorism statute the Republicans enacted, and designed a “most wanted terrorist” by the Bush administration. Should he be captured (and that is becoming more and more unlikely with each passing day), he would certainly enjoy all the rights as any criminal suspect taken into custody, including the right to silence and counsel. That is the way Sen. Graham and his fellow Republicans wanted it in 1996 when they announced their plants to “wage war” on terrorism.


We think it’s appalling that Sen. Graham and his Republican nay-saying colleagues are now trying to change the rules they created in 1996 and to politicize the “terrorism” debate in a shameless effort to undermine the Obama administration. Their political objectives have absolutely nothing to do with “protecting America” but everything to do with a self-serving political agenda to recapture the Congress and the White House. If their behavior wasn’t so ingrained in Washington’s “business as usual” politics, it would smack of treason.




By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair