Attorney General Eric Holder's decision to try Khalid Sheik Mohammed in a federal civilian court is inconsistent, indefensible and inexplicable.
It is inconsistent with Holder's own decision to try Abd al-Rahim al-Nashiri in a military commission. It is indefensible in light of the unmistakable intentions of the Framers of the Constitution. It is inexplicable by any prudential analysis of the national interest in dealing with an enemy like al-Qaida.
Some strange ideological impulse -- rather than common sense and respect for the rule of law -- is driving the Obama administration to give special treatment to the perpetrator of one of the greatest war crimes ever committed against the United States.
Consider the unequal treatment of Nashiri and Mohammed.
Nashiri is the al-Qaida mastermind of the Oct. 12, 2000, attack on the USS Cole that killed 17 U.S. sailors. Mohammed is the al-Qaida mastermind of the Sept. 11, 2001, attack that killed 2,973 people in New York City, Shanksville, Pa., and Northern Virginia, including 55 U.S. military personnel and 70 civilians serving in the Pentagon.
Both Nashiri and Mohammed were waterboarded during interrogations by the Central Intelligence Agency.
In deciding to try Nashiri in a military commission, the Obama administration is conceding that military commissions are constitutional, legal and fully capable of providing al-Qaida terrorists with fair trials consistent with longstanding American traditions of justice.
It would have been impossible for the Obama administration to maintain otherwise. Article 1, Section 8, Clause 10 of the Constitution says: "The Congress shall have Power ... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."
The Framers understood this language to authorize Congress to enact laws providing for military commissions to try unlawful enemy combatants -- a practice they knew well from firsthand experience. George Washington, who presided over the Constitutional Convention, had been personally responsible as commander in chief of the Continental Army for overseeing and carrying out the sentences of military commissions that tried British spies during the American Revolution. In 1942, the Supreme Court took up the case of Ex Parte Quirin, which pondered whether President Franklin Roosevelt -- our most left-wing president until now -- could lawfully and constitutionally order that a group of Nazi saboteurs captured on U.S. soil be tried by military commissions.
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