Commentary Magazine


Re: Khalid Sheikh Mohammed Goes to New York

Pete, the decision to transport Khalid Sheikh Mohammed to the U.S. to be tried in an Article III court, presumably with the same rights as common American criminals, is shocking and entirely unnecessary. I would submit that someone in the Obama administration recognizes this. As pointed out to me today by a congressman infuriated by the decision, the president is out of the country. Congress is not in session. It’s a Friday. The ultimate bad-news dump. In this context, it suggests not only a queasy awareness that the American people won’t like this but also, frankly, political cowardice. This is a major decision with long-term consequences. If the president believes what he is doing is right, he should exercise leadership and explain it to the American people. Himself.

But, again, the decision itself is utterly unnecessary. As Sen. Joe Lieberman has pointed out, we have a military-tribunal system designed for precisely these cases. His statement reminded us:

The military commission system recently signed into law by the President as part of the National Defense Authorization Act provides standards of due process and fairness that fully comply with the requirements established by the Supreme Court and the Geneva Conventions. Earlier this year, when passing the National Defense Authorization Act, the Senate also passed language expressing its clear intent that military commissions rather than civilian courts in the U.S. are the appropriate forum for the trial of these alleged terrorists. I share the views of more than 140 family members of the victims of the September 11, 2001 terrorist attacks who recently wrote to the Senate urging that the individuals charged with responsibility for those attacks should be tried by military commission rather than in civilian courts in the United States: It is inconceivable that we would bring these alleged terrorists back to New York for trial, to the scene of the carnage they created eight years ago, and give them a platform to mock the suffering of their victims and the victims’ families, and rally their followers to continue waging jihad against America.

And let’s recall how we got here. An informed legal guru observes that we decided to prosecute KSM in a military commission in part because past trials (e.g., those of the “Blind Sheikh” and Ramzi Yousef) may have compromised intelligence. So now we’ve gone back to the very system that, for legitimate national-security reasons, we had abandoned. As Andy McCarthy, who prosecuted the first World Trade Center bombing trial, observes:

Today’s announcement that KSM and other top al-Qaeda terrorists will be transferred to Manhattan federal court for civilian trials neatly fits this hidden agenda. Nothing results in more disclosures of government intelligence than civilian trials. They are a banquet of information, not just at the discovery stage but in the trial process itself, where witnesses — intelligence sources — must expose themselves and their secrets.

And what sort of trial? I find it difficult to believe that KSM will not enjoy all the panoply of rights and procedures available in any criminal proceeding. We can look forward to years of motions, demands for classified data, and efforts to prove up that information was extracted under duress and in violation of his constitutional rights. The jailers and interrogators are about to stand trial.

What do we hope to accomplish? It is almost unfathomable. Sen. Kit Bond declared: “Today’s announcement, as well as the Obama Justice Department’s recent decisions to dismantle and release information about the CIA’s interrogation program and support the erosion of the PATRIOT Act tools needed to keep us safe, calls into serious doubt their priorities — defeating terrorism to protect Americans or politically correct prosecutions.” Precisely so. Is this a bone to the netroot Left, which may be disappointed by an upcoming decision on Afghanistan? Or is this Eric Holder’s band of loony-Left DOJ attorneys run amok? Perhaps the Obama team is still out to impress the “Muslim World.”

The 9/11 Commission warned about an excess reliance on criminal-justice procedures and the failure to treat terrorism as a act of war. We are repeating the errors of the past, just days after the worst jihadist attack on American soil since 9/11. (Yes, that’s what it is when the killer shouts “Allahu Akbar!” and proceeds on his self-described mission “to do good work for God.”) We have a president and an administration that is unserious about national security and whose priorities are something other than keeping America safe. We are as a consequence less safe since Obama assumed office. The American people will, I strongly suspect, agree.

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