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Terrorists and Criminals

I've been reading a lot the past few days about the decision of the Attorney General and the President to try Khalid Sheikh Mohammed and a few of his fellow terrorists in federal court in New York City.

Most liberals support the decision, and most conservatives don't. That's routine in today's highly partisan political environment. For some, political ideology trumps all.

It's also clear that the shadow of the Bush Administration continues to loom large. Some see the decision to treat Mohammed, who conceived and planned the terrorist attacks of 9/11, as a common criminal who has all the protections of the U.S. Constitution as a rebuke to Bush and the very idea of a war on terror.

One thing is clear: Barack Obama is risking his presidency and, to some extent, his Party's future on this one. If the trial doesn't go well in any number of ways, he and the Democrats will pay a price for it, and the price could be heavy indeed.

Here are some of the reasons why the decision is a mistake and some of the things that can go wrong:

  • Khalid Sheikh Mohammed is an enemy combatant, a member of an non-state organization that has declared war on and attacked the United States. He is not a U.S. citizen, and he was captured overseas. There is no legal requirement to try him in federal court -- not in U.S. law, international law, or the Geneva Conventions.
  • The Bush Administration, Congress, and the courts all contributed to the inept process which resulted in ineffective military commissions that weren't able to bring KSM and his fellow terrorists to justice. That's a problem that needs to be fixed, not a reason to treat terrorists like common criminals.
  • It's irrational to prosecute some terrorists in federal court while others are tried by the military. The fact that some attacks were carried out on U.S. soil and others overseas aren't sufficient justification; neither is the civilian or military nature of the targets. Should those who attacked Pearl Harbor have been tried in federal court?
  • Through the machinations of unprincipled lawyers, every conceivable legal obstacle will be used in the attempt to thwart justice. Just as William Kunstler and Ramsey Clark represented Omar Abdel Rahman at one time or another, their would-be heirs are salivating at the prospect of representing KSM, dreaming of seeing their faces on TV every day and appearing repeatedly on Larry King.
  • Even if the lawyers don't succeed in getting KSM and the other terrorists off through legal maneuvering, the jury may do it for them. Just think -- a jury decision probably won't come until 2014 or 2015, and it takes only one juror to deny a conviction. Will it be impossible for an apologist for Islam, an extremist Muslim, or a goofy 9/11 truther to get on the jury? Of course not; all it takes is less than honest responses to questions on voir dire. In the wake of a hung jury, would the Justice Department elect to do it all over again?
  • And speaking of the jury, will it be possible for these terrorists to get a fair trial in New York City? The lawyers for the defense will presumably request a change of venue based on that issue, and it will probably be denied. There's the first cause for an appeal following a conviction.
  • The defendants will undoubtedly try to turn the trial into a theater of jihad, and to some extent they will succeed. It's also inevitable that sensitive information will become public, as it did during the trials of Omar Abdel Rahman and others. That will expose intelligence sources and methods and specific information that will be of use to Al-Qaeda and others, who we can be sure will be watching closely.
  • Conducting the trial in New York City is going to create major security problems, in terms of the likelihood of future attacks and the administrative nightmare of trying to secure the court, jail facilities, and the city in general.
  • Finally, one other question that defies a logical answer, given that we're going to try these terrorists in federal court like common criminals instead of enemy combatants. We hunt down and kill terrorists (and, unfortunately, other people near them) in Iraq, Afghanistan, and elsewhere without due process or a trial of any kind. Does this mean the war on terror really is over? If so, what are we supposed to do to defend ourselves in the future?

All things considered, this is a very bad idea. I understand the thinking and the motives of those who support it, and in some particulars I agree with them. But the war on terror is a necessary response to the Islamist extremists who have declared war on us and repeatedly attacked us. Wishing it away won't work.

Additional reading:

Accused 9/11 Mastermind to Face Civilian Trial in N.Y., The New York Times

Security threats inside and out for 9/11 trial, AP/Austin American-Statesman

Paterson Calls Obama Wrong on 9/11 Trial, The New York Times

A Return to American Justice, Editorial, The New York Times

Two Ground Zeroes, Bret Stephens, The Wall Street Journal

Can New Yorkers Be Impartial In Terrorism Case?, National Public Radio

Holder's al Qaeda Incentive Plan, William McGurn, The Wall Street Journal

Are We at War -- or Not?, Patrick J. Buchanan, Real Clear Politics

Betting His Presidency, James P. Pinkerton, Politico

Terrorism Detainees: Geneva Convention Common Article 3, CDI

Holder's trials and errors, Michael Gerson, The Washington Post

In N.Y. trial, a treasure trove for terror, Jeff Jacoby, The Boston Globe

(This article was also published at Opinion Forum.)