The Obama Administration’s preference to treat terrorists as mere criminals, and not as hybrid enemy combatants to be tried in military commissions, has been made crystal clear. The Administration boasts that the United States has successfully prosecuted hundreds of terrorists in federal court in the past, and as such, we should continue to use federal courts for the most serious terrorists, like Khalid Sheikh Mohammed. What they don’t tell you, however, is that they are playing fast and loose with the numbers and types of terrorists tried in federal court.

In fact, Attorney General Holder essentially conceded to the Senate Judiciary that there has not been one successful federal trial of an enemy combatant, captured overseas by our military, since 9/11. Read Heritage Senior Fellow Cully Stimson’s (former federal prosecutor and Deputy Assistant Secretary of Defense for Detainee Affairs) op-ed on Holder’s testimony here.

The Administration’s numbers come from a report by a liberal organization called Human Rights First. Now, thanks to another outstanding article by Andrew McCarthy, we know the truth about the numbers and the Human Rights First terrorist trial report. The report analyzed 119 “terrorism-related” cases with 289 defendants (as of June 2, 2009) and found that 195 were convicted for a 91% conviction rate. But McCarthy, the former Assistant US Attorney in Southern New York and writer for National Review, explains that in its political calculation of “doubling down on civilian due process,” the Left is playing a bogus numbers game.

The report itself states that the 195 figure includes, “acts of terrorism, attempts or conspiracies to commit terrorism, or providing aid and support to those engaged in terrorism”, as well as, “charges under “alternative” statutes such as false statements, financial fraud, and immigration fraud.”

But The New York Times and at least one member of Congress have been bragging that civilian courts have convicted 195 terrorists. Of the 195 convictions, 11 resulted in life sentences (that’s slightly over 5.6% of all convictions). And for the remaining 184 convictions, the average prison sentence was only 8.41 years, with a median prison term of a mere 4.83 years. Some 73 defendants were convicted of material support, 28 for money laundering, 21 for false statements, and 12 for racketeering.  Nine were convicted of conspiracy to commit murder, and 6 were convicted of killing a U.S. national. Eight years of prison isn’t enough time for a hardened terrorist, and the simple fact is that many of these convictions are not “international terrorists” or those actively plotting terror attacks.

To illustrate his point, McCarthy provided an example of what could be included in this 195 figure:

Let’s say the FBI is investigating al-Qaeda and it interviews a person suspected of having relevant information. That person lies during the interview, so the prosecutors indict him for making false statements, and he pleads guilty. Under the HRF’s [Human Rights First] standards, that gets tallied as a conviction in a “terrorism case.” But it hardly means the defendant is an international terrorist, let alone a KSM [Khalid Sheikh Mohammed - the architect of the 9/11 attacks].

However, there are other groups trotting out different sets of numbers. The Justice Department has its own number being used to boost the anti-terrorism credentials of civilian courts. According to a DOJ fact sheet, “Hundreds of terrorism suspects have been successfully prosecuted in federal court since 9/11. Today, there are more than 300 international or domestic terrorists incarcerated in U.S. federal prison facilities.” The numbers parade doesn’t stop there.  According to an ACLU website dedicated to “Myths and Realities About the Patriot Act”, the then- Bush Administration, “overstates [the] actual number of convictions and omits a number of key facts related to these numbers,” and that the convictions were more commonly for, “charges of passport violations, fraud, false statements, and conspiracy.” The ACLU claims that out of a reported 361 terrorism cases (as of 2004) only 39 individuals were actually convicted of crimes related to terrorism – with a median sentence of 11 months.

The discrepancy among these figures is political. The DOJ naturally wants to boast a strong conviction record of terrorists, whereas the ACLU, according to McCarthy, seeks to paint the terrorist threat as exaggerated.  All of these different numbers are being used to make a case for why terrorists like the Christmas Day Bomber belong in a civilian court, as opposed to a military court. Since that is the issue at hand, it would make more sense to compare and consider similar cases involving convicted terrorists, as opposed to a broader combination of terrorists and those that in some way assisted them.  McCarthy further summarizes this distinction:

The criminal justice system managed to take out only 29 terrorists in the eight years before 9/11. That’s less than what the military sometimes gets done in a single day during this war, underscoring that real international terrorists are primarily a military challenge, not a legal one, and ought to be handled primarily by military processes.

It is comparing apples to oranges to compare a terrorist who was one spark away from blowing a jetliner out of the sky and murdering hundreds of people to somebody who donated money to a front charity or helped move jihadist funds around.  McCarthy, with the experience of serving as the lead prosecutor in the case against the 1993 World Trade Center bomber, explains that, “If we are to prevent jihadist strikes from happening (the post-9/11 Bush philosophy), we have to do aggressive terrorism investigations and prosecute people for the lesser offenses (immigration fraud, money laundering, material support, etc.) that, if left unchecked, facilitate major attacks.”

McCarthy is absolutely correct. Convicting less valuable and less imminently dangerous supporters of terrorism is a crucial component in the long-term war against radical Islamic terrorism, but the numbers involving an active terrorist threat and a more passive connection to terrorism should not be lumped together to score political points. Military commissions, properly resourced, are still the best option we have to handle those with a direct hand in the planning and execution of terror attacks.

The Human Rights First report concedes that a great many of the 195 convictions are in fact minor offenses.  But before carelessly detaching the strings attached to such a number for political purposes, our politicians and commentators should put a little more thought into what the numbers actually represent.