One can understand how the Obami may have reached this decision to ship KSM and other 9/11 conspirators off to New York (or wherever the change-of-venue motions take them) for a civilian trial. First, as Andy McCarthy details, Eric Holder and his Justice Department minions play fast and loose with the facts. Second, the Obama spinners conveniently misrepresent the facts, claiming that no one raised concerns that Zacharias Moussaoui was not prosecuted before a military commission. Actually, many conservative commentators and Republicans did so, as did two Democratic senators. And third, Holder relies on bluster in lieu of cogent legal argument. (As Sen. Jon Kyl asked, “How could you be more likely to get a conviction in federal court when [KSM] has already asked to plead guilty to military commission?”)
I spent some time today with two former Justice Department lawyers who have a wealth of relevant experience, and their observations are worth taking to heart. First, in a military commission, the evidence could be restricted to the lawyers representing the al-Qaeda members. But in federal court, KSM can be his own lawyer and would have direct access to all manner of classified material. How’s that going to work? Second, the trial will take years. A complex white-collar conspiracy trial may be a multiyear affair, so the KSM could still be tying up the federal prosecutors when the 2012 election rolls around. Hmmm. Third, KSM has a right to be present at trial and for all significant pretrial hearings, which means he is coming to New York City. Where are they going to put him? Fourth, the Justice Department has not yet revealed the result of its investigation of Office of Legal Counsel lawyers who authored the interrogation memos. Why wouldn’t KSM use that material to accuse his captors of torture and to exclude all evidence? Seems like that will be his first order of business.
In short, the list of complications and dangers to American interests is long. Satisfactory answers are lacking. Will Congress step in to blow the whistle and defund the three-ring circus before it gets up and running? The alternative is to let this play out over years and let the voters judge for themselves whether the Obama administration and its Democratic enablers in Congress really were looking out for American security or instead were caught up in some ideologically driven fantasy that we were going to get brownie points by setting KSM and his cohorts up in a federal courtroom. For years to come.