Will KSM and his four fellow defendants be able to send much the same message ("America, you lost, we won!") at the conclusion of their trial? They can proclaim it at length, because this administration is about to provide them with a splendid platform for speechifying: a courtroom only a few blocks from the scene of the monstrous crime in lower Manhattan.
Are these prisoners being transferred to federal court only in order to carry out a campaign promise -- Barack Obama's vow to shut down the military prison at Guantanamo? Yet it's clear the president won't meet his self-imposed deadline of January 22 to shutter Gitmo, the most secure and appropriate place to conduct such trials. At last report, a number of detainees -- those too dangerous to release -- will still be held there without trial. Like the illegal combatants they are.
Is the aim then to delegitimize military justice in general? But that can't be -- the country's still new attorney general, Eric Holder, has decided that five other guests of the government at Gitmo will be tried by military commissions. Which may be the only assuring aspect of his announcement last Friday.
In those cases, is Gitmo just being moved ashore? To what end? Is the object to impress our enemies? Better to impress them with our determination to eliminate any threat they pose to our national security, if necessary by eliminating them.
When Khalid Sheik Mohammed was caught in Pakistan back in 2003, he made two demands: One, a lawyer, and, two, to be flown to New York. Now he is to get both wishes courtesy of our new, if not downright green, president. And one of the first questions his lawyer may ask him when he takes the stand at last is: "Mr. Mohammed, were you read your Miranda rights?" What a way to conduct a war -- if this administration even realizes we're engaged in a war on terror rather than a criminal trial.
Michael Mukasey, the presiding judge in the trial of the blind sheik who sponsored the first attack on the Twin Towers, has noted how unsuitable civilian courts are for such cases. His experience as attorney general of the United States at the end of the Bush administration only reinforced that view. Why try offenses against the laws of war in a civilian rather than military court?
Yet the administration has forged ahead with its plan to give KSM and company an off-Broadway stage. The accused are doubtless rehearsing their speeches even now. To quote Mr. Mukasey on the administration's plan, it "seems to abandon the view that we are engaged in a war." Else, why treat these offenses as only violations of the criminal law, as if the defendants stood accused of insider trading rather than the most horrific war crimes?
Is it only the biggest fry who are to get civilian trials? Does rank have its privileges even among terrorists? Or will the civilian courts be reserved for those defendants whose guilt is so clear that the Justice Department won't have to use any evidence, however well corroborated, that was obtained by coercion? Meanwhile, other suspects are to be tried by military commission. Is this what the lawyers call forum-shopping?
The only clear conclusion to be drawn from the administration's inconsistent if not incoherent course is that, once again, justice will be delayed. And therefore denied.
There was a time when an American president could order up a military commission to try illegal combatants with dispatch, as Franklin D. Roosevelt did in the case of eight German saboteurs who were apprehended shortly after their U-boats delivered them to their destinations: the beaches of Long Island and Florida.
Six of the eight were executed within weeks; the two who had turned themselves in were imprisoned till after the war ended and then sent back to Germany. All this occurred with the blessings of the Supreme Court of the United States, which at the time included the great Robert Jackson, the justice who famously observed that the Constitution of the United States is not a suicide pact. Well, that depends on who's interpreting it, doesn't it?
Alas, Justice Jackson is no longer with us. And this administration, awash in the present, seems to have little use for the past and its precedents. Granted, Robert Jackson's times were different; back then we could still recognize an illegal combatant when we captured one.
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