During his recent testimony before the Senate Judiciary Committee, I questioned Attorney General Eric Holder about his decision to bring five terrorists, including 9/11 mastermind Khalid Shaikh Mohammed ("KSM"), to lower Manhattan for a trial in civilian court.
In the audience were infuriated family members of 9/11 victims who had just written to President Obama to object to what they called "the sickening prospect" of bringing KSM to trial "just a few blocks away from the carnage of eight years ago" where he "can mock his victims \[and\] exult in the suffering of their families. . . ."
KSM has wanted a show trial in Manhattan from the moment he was captured overseas, saying he would not talk until being assigned a lawyer in New York. And now he is getting his wish. The President is sending the architect of 9/11 to the world's biggest stage for his long-desired chance to become a celebrity martyr and motivate jihadists around the world.
During the presidential campaign, then-Sen. Barack Obama openly criticized military commissions. In his first official act as President, Obama announced he was closing Guantanamo Bay. This was followed soon by an executive order suspending all military trials. And now the President has decided to try 9/11 war criminals in civilian court. As Rudy Giuliani put it, the President's decision is "part of a whole package of the President not seeing the war on terror." These trials are the embodiment of a dangerous pre-9/11 mentality.
The attorney general himself admitted during his testimony that military commissions - part of settled law for hundreds of years - are a perfectly proper way to try war criminals. In fact, as KSM and his cohorts are sent to New York, the administration is sending five other terrorists before military tribunals. So let's be clear: The KSM decision was not compelled by our Constitution. Nor was it a strategic decision designed to increase the government's chances of success at trial.
KSM had expressed his willingness to plead guilty before a military tribunal. But instead of taking him up on his offer, this administration waited almost 10 months before deciding to move the trial to Manhattan. Press reports indicate that all five soon-to-arrive terrorists will now be pleading not guilty, and a lawyer for two of them has announced he will make their mental health an issue. No wonder these 9/11 family members are so mad.
KSM may also try to use a public trial in Manhattan to air valuable intelligence information. For example, during the civilian prosecutions following the first World Trade Center bombing, a list of unindicted co-conspirators provided at trial wound up reaching Osama Bin Laden. Similarly, according to former Attorney General Michael Mukasey, testimony about the delivery of a cell phone battery alerted Al Qaeda terrorists that "their communication links had been compromised."
This was not the only time a civilian trial for terrorists did not go according to plan. Just ask Louis Pepe, a former Manhattan prison guard. Pepe was guarding Mamdouh Salim, a co-founder of Al Qaeda who was implicated in the 1998 U.S. Embassy bombings, when Salim tried to kidnap his lawyer and escape. Salim plunged a sharpened comb through Pepe's eye into his brain. Pepe is now confined to a wheelchair, blind in one eye, and nearly unable to speak.
Or ask 11 of the 12 jurors who sat on the case of Zacarias Moussaoui, the "20th hijacker." That case took an astonishing 4 1/2 years even though Moussaoui pleaded guilty. The presiding judge barred the death penalty until she was reversed by a higher court, and prevented seven government witnesses from testifying at the penalty phase. In the end, Moussaoui was still spared the death penalty because of a single holdout juror.
When asked for his thoughts on hosting another such trial, the mayor of the Virginia town where the trial took place had this to say: "We would do everything in our power to lobby the President, the governor, the Congress and everyone else to stop it. We've had this experience, and it was unpleasant. Let someone else have it."
So, before the President uses these words again in talking about KSM - "when he's convicted and when the death penalty is applied to him" - or the Attorney General again says, "failure is not an option," they should think about these unpleasant experiences.
Civilian courts are for trying civilians. That's why defendants get Miranda rights, the best lawyers our tax dollars can provide and the right to raise every motion and objection under the sun. Military courts are for trying terrorist war criminals - who violate the rules of war to try and extinguish our way of life.
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