Donald Trump’s Justice Department is firing some of the nation’s most experienced counterterrorism prosecutors and experts, apparently for political reasons. Line prosecutors and terrorism experts across the country are watching with alarm, although many are afraid to say so publicly.
On Wednesday night, the department pushed out Michael Ben’Ary, who was head of national security at the U.S. Attorney’s Office for the Eastern District of Virginia. He lost his job, CNN reported, because a MAGA activist had falsely accused him of resisting the recent indictment of former FBI Director James Comey. (Ben’Ary was not involved in the case, the network found.)
As a prosecutor, Ben’Ary took an oath “that requires you to follow the facts and the law wherever they lead, free from fear or favor, and unhindered by political interference,” he wrote to colleagues on Friday. “In recent months, the political leadership of the Department have violated these principles, jeopardizing our national security and making American citizens less safe.”
His ouster follows that of George Toscas, one of the most experienced anti-terrorist attorneys in the Justice Department. As the deputy assistant attorney general in the National Security Division, Toscas had encouraged the investigation into the inappropriate storage of classified documents at Mar-a-Lago after Trump left office in 2020. Toscas was forced out of his division and sidelined at the DOJ in January.
The United States loses these seasoned prosecutors at its own peril. Bringing terrorists to justice in American courts has become a crucial part of the nation’s self-defense. But this legal work requires judgment and expertise that, once lost, are extraordinarily difficult to replicate.
In the 2010s, Toscas played an essential role in a terrorism case that I reported on extensively for my new book, Race Against Terror. Back then, prosecutors wanted to transfer from Italian custody an al-Qaeda terrorist whose nom de guerre was Spin Ghul. He was suspected of killing American troops in an ambush in Afghanistan and conspiring to blow up the U.S. embassy in Nigeria, and prosecutors wanted to try him in the United States for killing American service members on the battlefield. This was an unprecedented move. Before the assistant U.S. attorneys and the FBI agents sought approval from the Justice Department leadership and then the White House, they knew they had to go through Toscas.
Toscas’s intense scrutiny and strategic skepticism were legendary at Justice, which he joined in 1993. The prosecutors in the Spin Ghul case knew they would have to withstand a gantlet of tough questions from him. Spin Ghul had confessed, but Toscas wanted to know more about the circumstances of that statement.
Toscas had been burned before. During the George W. Bush administration, Toscas was trying to prosecute three Rwandan Hutu fighters who in 1999 had slaughtered eight Western tourists on a gorilla-watching excursion in Uganda’s Bwindi Impenetrable Forest. Two Americans—the Intel executives Robert Haubner, 48, and Susan Miller, 42—were among the victims. But the three Hutu defendants had confessed in the custody of Rwandan officials from the rival Tutsi ethnic group, and a U.S. District Court judge ruled that the “abuse and mistreatment they endured while being interrogated shock the conscience and therefore render the statements involuntary and inadmissible.” They were sent to Australia as freemen.
Experience is made up of such regrettable episodes. Toscas would never again allow such an issue to undermine a case on his watch. If prosecutors were going to attempt something as audacious as trying Spin Ghul, the case needed to be airtight. There could be no questions about the admissibility of the man’s confession in Italian custody.
In that era, trying foreign terrorism suspects in criminal courts wasn’t just a prosecutorial challenge. It was also controversial. Politicians seemed to ascribe the defendants with Thanos-esque powers, fearing their presence on U.S. soil. Many preferred to have military commissions in Guantánamo Bay adjudicate such cases.
U.S. courts could also be unpredictable. In 2010, evidence was thrown out during the prosecution of Ahmed Ghailani, who was being tried in a civilian court for his role in the 1998 bombings of the U.S. embassies in Kenya and his home country of Tanzania. The judge refused to allow testimony from the key witness because Ghailani had divulged his name only under duress at a CIA black site. In 2010 the jury acquitted him of 284 of the 285 charges. That case also weighed on Toscas.
Toscas, I should note, has never communicated with me in any way. Everything I know about him I learned from his colleagues, who considered him tougher and more demanding than anyone else at the department. Getting a case approved by the attorney general and even a president was almost a formality once Toscas had signed off.
Ultimately, Spin Ghul was indeed brought to the U.S., prosecuted, and sentenced to life in prison.
For the second time ever, the Trump administration is now trying to prosecute in U.S. criminal court a foreign terrorism suspect on charges related to killing American service members in a war zone. Mohammad Sharifullah, a.k.a. Jafar, reputedly a member of an Islamic State offshoot, was charged in March with aiding and abetting a 2021 suicide bombing that killed 13 American service members and more than 160 Afghans.
That case was assigned to the Eastern District of Virginia, which because of its concentration of national-security agencies is a crucial jurisdiction for terrorism cases. But Michael Ben’Ary was a leading prosecutor on the case. In his letter, the 20-year veteran said that his dismissal “will hurt this case” against Jafar: “Justice for Americans killed and injured by our enemies should not be contingent on what someone in the department of Justice sees in their social media feed that day.”
Toscas’s sidelining, from the National Security Division of the Justice Department, means that he will not be of much help either. His last day is coming soon.
Before Ben’Ary was fired, another respected prosecutor, U.S. Attorney Erik Siebert, was forced out by Trump because he wouldn’t support the president’s questionable case against New York Attorney General Letitia James. Siebert’s replacement is the Trump loyalist Lindsey Halligan, a former insurance attorney in Florida. The New York Times reported that when she showed up to indict Comey, she wasn’t sure where to stand in the room.
Siebert, Ben’Ary, Toscas: No one can credibly argue that the Justice Department’s recent personnel decisions are based on a lack of prosecutorial excellence. The political removal of these civil servants makes the United States and the world less safe.
