The terrorist sues to resume his jihad from prison. The Obama administration caves in.
Last May at the National Archives, President Barack Obama warned that "more mistakes would occur" if Congress continued to politicize terrorist detention policy and the closure of Guantanamo Bay. "[I]f we refuse to deal with those issues today," he predicted, "then I guarantee you, they will be an albatross around our efforts to combat terrorism in the future."
On June 17, at the Administrative Maximum (ADX) penitentiary in Florence, Colo., one of those albatrosses, inmate number 24079-038, began his day with a whole new range of possibilities. Eight days earlier, the U.S. Attorney’s office in Denver filed notice in federal court that the Special Administrative Measures (SAMs) which applied to that prisoner—Richard C. Reid, a.k.a. the "Shoe Bomber"—were being allowed to expire. SAMs are security directives, renewable yearly, issued by the attorney general when "there is a substantial risk that a prisoner’s communications, correspondence or contacts with persons could result in death or serious bodily injury" to others.
Reid was arrested in 2001 for attempting to blow up American Airlines Flight 63 from Paris to Miami with 197 passengers and crew on board. Why had Attorney General Eric Holder decided not to renew his security measures, kept in place since 2002?
According to court documents filed in a 2007 civil lawsuit against the government, Reid claimed that SAMs violated his First Amendment right of free speech and free exercise of religion. In a hand-written complaint, he asserted that he was being illegally prevented from performing daily "group prayers in a manner prescribed by my religion." Yet the list of Reid’s potential fellow congregants at ADX Florence reads like a Who’s Who of al Qaeda’s most dangerous members: Ramzi Yousef and his three co-conspirators in the 1993 World Trade Center bombing; 9/11 conspirator Zacarias Moussaoui; "Millennium bomber" Ahmed Ressam; "Dirty bomber" Jose Padilla; Wadih el-Hage, Osama Bin Laden’s personal secretary, convicted in the 1998 U.S. Embassy bombing that killed 247 people.
In December 2008, the Department of Justice filed a motion to dismiss Reid’s lawsuit. It cited the example of ADX inmate Ahmed Ajaj as an illustration of "the dangers inherent in permitting a group of inmates, of like mind in their opposition to the United States, to congregate for a prayer service conducted in a language not understood by most correctional officers."
While imprisoned for passport fraud in 1992, Ajaj assisted in the plans to destroy the World Trade Center on Feb. 26, 1993, making phone calls to Ramzi Yousef and speaking in code to elude law enforcement monitoring. Ajaj tried to get his "training kit" to Yousef, which included videotapes and notes he had taken on bomb-making while attending a terrorist camp on the Pakistan-Afghanistan border.
Reid’s own SAMs on correspondence had been tightened in 2006 after the shocking discovery that three of the 1993 World Trade Center bombers at ADX, not subject to security directives, had sent 90 letters to overseas terrorist networks, including those associated with the Madrid train bombing. The letters, exhorting jihad and praising Osama bin Laden as "my hero of this generation," were printed in Arabic newspapers and brandished like trophies to recruit new members.
When setting restrictions on inmate religious practice, the Bureau of Prisons need only meet a reasonableness standard, a very low bar in the case of Muslim terrorists. Justice would easily have prevailed against Reid’s lawsuit; nevertheless it dropped the security measures on Reid after he missed 58 meals in a hunger strike that required medical intervention and forced feeding in April.
On July 6, Justice Department lawyers informed the court that Reid will be given a "new placement" in a "post-SAMs setting." Whether that entails stepped down security in a different unit or transfer to a less secure facility, the Bureau of Prisons won’t say, and Justice refuses to comment.
Mr. Obama likes to observe that "no one has escaped from supermax," but if Reid is moved from ADX Florence, he will be the first convicted terrorist to use the First Amendment to sue his way out.
What drove the Obama administration’s decision to cave in to Reid’s demands? The president after all has repeatedly pitched supermax and the federal prison system as a secure alternative to Guantanamo, citing the fact that it handles "all manner of violent and dangerous criminals." Yet the last thing he needs, as his administration engages in its hasty effort to shut Gitmo down by a fast-approaching deadline, is for lawyers and human-rights activists to use a hunger-striking, near-death prisoner to launch a propaganda campaign fashioned right out of the Gitmo detainees’ playbook. Lawyers who shamelessly compared Gitmo to Nazi concentration camps would think nothing of casting supermax as the next "symbol of America’s shame" and a "rallying cry for our enemies."
From the outset of his administration, Mr. Obama has been trying to thread the needle between national security policy and his ideological affinity with civil liberties lawyers and human-rights activists, meeting with and consulting them prior to making detainee-related decisions. Though his executive order shutting Guantanamo closely followed the blueprint provided by Human Rights First, leaders of key organizations were stunned when he revealed in an awkward, off-the-record meeting the day before his public announcement at the National Archives that he planned to continue President George W. Bush’s policy of preventive detention.
Michael Ratner, whose human rights organization, the Center for Constitutional Rights, filed the first successful detainee lawsuit in 2002, called Mr. Obama’s proposed U.S. detention scheme a "road to perdition" and nothing more than a plan to "repackage Guantanamo." Leaders of the so-called Gitmo bar appear poised to launch a flurry of legal challenges the moment the last departing detainee’s feet touch U.S. soil.
In January, the American Civil Liberties Union (ACLU) of Colorado issued a statement saying that conditions at supermax are "simply another form of torture" worse than Gitmo which "make a mockery of ‘innocent until proven guilty.’" Last month, the ACLU filed a civil lawsuit mirroring Reid’s religious rights claim on behalf of two terrorism inmates held at the Communications Management Unit inside a medium security prison in Terre Haute, Ind.
One of those inmates is Enaam Arnaout, a Syrian-born U.S. citizen serving a 10-year sentence for diverting Muslim charity money to militant Islamic groups in Bosnia and Chechnya. The other, Randall Royer, is serving 20 years for his role recruiting young Muslims in the "Virginia Jihad Network," a group that used paintball games in 2000-2001 to train for holy war.
Mr. Obama has repeatedly suggested that the security challenge of bringing more than 100 trained and dangerous terrorists onto U.S. soil can be solved by simply installing them in an impenetrable fortress. This view is either disingenuous or naïve. The militant Islamists at Guantanamo too dangerous to release believe that their resistance behind the wire is a continuation of holy war. There is every reason to believe they will continue their jihad once they have been transported to U.S. soil where certain federal judges have signaled a willingness to confer upon them even more rights.
The position of civil rights activists with regard to these prisoners is plain. "If they cannot be convicted," says ACLU lawyer Jameel Jaffer, "then you release them."
Meanwhile, in order to appease political constituencies both here and abroad, the Obama administration is moving full steam ahead, operating on the false premise that giving more civil liberties to religious fanatics bent on destroying Western civilization will make a difference in the Muslim world. In a letter sent to his father as he began his hunger strike, Reid provided a preview of how he will exercise his newly enlarged free speech rights, calling Mr. Obama a "hypocrite" who is "no better than George Bush." His lawsuit remains active while the Department of Justice works out a settlement that satisfies the man who declared, "I am at war with America."
Ms. Burlingame, a former attorney and a director of the National September 11 Memorial Foundation, is the sister of Charles F. "Chic" Burlingame III, the pilot of American Airlines Flight 77, which was crashed into the Pentagon on Sept. 11, 2001.