The case of two Iraqi refugees captured in Kentucky after an FBI sting operation is reigniting the political debate over where to bring terrorists to justice.
Sen. Mitch McConnell of Kentucky says the men pose a danger to the people in his state and he wants them sent to Guantanamo Bay, the U.S. detention facility in Cuba. But Justice Department leaders say the real danger is fear-mongering by politicians.
Terrorism suspects nabbed on American soil have never been sent outside the U.S. to face military trial. But if McConnell, the Senate's top Republican, gets his way, that's exactly what could happen.
"I think it's safe to say that a lot of Kentuckians, including me, would like to know why two men who either killed or plotted to kill U.S. soldiers and Marines over in Iraq aren't sitting in a jail cell in Guantanamo right now," McConnell said on the Senate floor this week.
McConnell said the two refugees, Waad Alwan and Mohanad Hammadi, don't belong in his backyard. The senator wants to see Kentucky rise up, just like New York did, to prevent the trial of Sept. 11 mastermind Khalid Sheikh Mohammed from happening there.
Attorney General Eric Holder, who lost the political fight over that trial, isn't backing down this time. He told the American Constitution Society Thursday night that the fight is on.
"Politics has no place, no place in the impartial and effective administration of justice," Holder said. "Decisions about how, where and when to prosecute must be made by prosecutors, not politicians."
Prosecutors, Holder said, have a better understanding of the law.
And according to the law, here's what matters:
The two Iraqi refugees involved in the Kentucky case are already on American soil. Both Alwan and Hammadi have been charged with trying to send weapons to al-Qaida in Iraq. And the conversations that form the bulk of the criminal case against them were recorded by undercover FBI sources after the Iraqi men settled in Bowling Green, Ky., under a refugee program in 2009.
Alwan also faces two charges that focus on allegations that as a member of the insurgency movement, he planted bombs to target U.S. soldiers driving Humvees through Iraq. Prosecutors say they have obtained Alwan's fingerprints on one unexploded IED.
While Alwan might be prosecuted overseas as an enemy combatant for those two charges, the rest of the 20-odd counts against him don't involve foreign jurisdiction. And there's no strong legal basis for sending Hammadi to Guantanamo at all.
Senate aides who worked on legislation to overhaul the military commissions say the Iraqis could be tried that way with a few adjustments to the indictment. Scholars still have some questions, though, about whether charges such as material support to terrorists would pass muster in the tribunal system.
And McConnell says he's worried about the safety of judges and jurors in his state.
"Sending them to Gitmo is the only way we can be certain there won't be retaliatory attacks in Kentucky," he added.
McConnell's approach is gaining some momentum. The Republican candidate in Kentucky's governor's race has come out in support of sending the Iraqi men to Guantanamo and his Democratic opponent quickly followed suit.
Jim Earhart, a defense lawyer for one of the Iraqi men, said he doesn't get it.
"I just don't understand why anybody fears our Constitution, particularly when they're sworn to uphold it," Earhart said. "Why they think that that is a bad thing, it really just perplexes me that people have this fear that constitutional rights somehow will, will jeopardize our country, it should be totally the opposite."
Meanwhile, back in Washington, House lawmakers are using safety concerns to justify language in a Pentagon spending bill that would bar the attorney general from prosecuting any accused foreign terrorists in the U.S. — not just the two men in Kentucky.
Holder said hundreds of terrorism suspects have been tried in ordinary courts since the Sept. 11 attacks. And he said Congress isn't paying attention to the facts.
"Not one of these individuals has escaped custody," Holder said. "Not one of the judicial districts involved has suffered retaliatory attacks. And not one of these terrorists arrested on American soil has been tried by a military commission. "
Jim Cullen, a retired brigadier general in the Army Judge Advocate General's Corps, is one of a group of retired military officers lobbying Congress not to tie the Justice Department's hands when it comes to national security prosecutions.
"The core competency of the Department of Defense is to defend the nation," Cullen said. "It is not to take over the role of the Justice Department."
Cullen said most of the terrorists convicted in U.S. courts are serving long sentences. They're behind bars for decades. They're no longer a terrorist threat. And they're no longer fodder for politicians.