Why is the Obama administration transferring Khalid Sheik Mohammed, who proudly proclaims himself the mastermind of the September 11 attacks, to a federal district court in New York? Has the defendant tired of the tropical breezes at Guantanamo? Would a change of scenery to the urban reaches of lower Manhattan improve his spirits? Or just those of a new administration bent on change if only for change's sake?
Why transfer this all too well-known defendant and four of his closest associates from military to civilian jurisdiction? It has to be for some reason other than assuring swift and sure justice -- the kind that American military commissions have been providing since they were invented by George Washington.
The transfer certainly is not motivated by security concerns. For this trial in a civilian court, like previous ones, will require extraordinary measures to protect the judges, prosecutors and witnesses.
Details about the sources and techniques of American intelligence, let alone those of our allies who cooperated in the capture of these much wanted men, will become fair game in open court.
Information that terrorists find useful can be revealed inadvertently during such a trial. For example, in the course of the trial of those who first bombed the World Trade Center, Osama bin Laden learned that he was considered a co-conspirator, and promptly moved his base of operations from Sudan to the remote mountain fastnesses of Afghanistan. What valuable intelligence will our enemies glean from the open proceedings now scheduled for New York?
Once the terrorists get to trial, delays and extensions are sure to be sought -- even before the highly likely appeals. Complications unimagined are bound to arise. The legal games have only begun. By the time they end, after all the folderol of a show trial, justice may be reduced to an afterthought, if that.
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Are we in for another judicial farce like the years-long spectacle starring Zacarias Moussaoui? The trial of that even-stranger-than-usual terrorist finally ended with his escaping the death penalty. Although not before many a bizarre twist, turn, delay and legalistic confabulation threatened to derail it.
To quote Mr. Moussaoui's own, not entirely unjustified reaction on going off to do life without parole at a maximum-security prison in the Rockies: "America, you lost, I won!" At last report this convicted terrorist remains in good health, at least physically. And not much more deranged than anyone else whose life's ambition is mass murder.
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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