Khalid Sheikh Mohammed Trial Will Be a Three-Ring Circus
Years after the circus-like trials of Sheikh Omar Abdel-Rahman and the 1993 World Trade Center bombers, Attorney General Eric Holder, acting for the president, has asked for a repeat performance. He is ordering trials in New York of five men who finally succeeded in the original plan to bring down those towers and, in the process, kill almost 3,000 civilians.
There is every reason to believe that in these trials the government may face even more substantial Sixth Amendment hurdles than it did in the original World Trade Center case -- hurdles relating to the defendants’ rights to counsel, to subpoena witnesses, and to obtain access to classified information regarding the detention abroad of terrorists. Then there is their treatment while in detention and the names of states and state actors who assisted us in bringing to heel those who murder us here and abroad.
Holder announced on Friday that Khalid Sheikh Mohammed and four of his co-conspirators in the 9/11 attacks on the United States will be tried in a New York courtroom. They are not the only detainees at Guantanamo whom the government intends to try, nor the only detainees that the government intends to try in the United States:
Of the 215 detainees who remain at Guantanamo Bay, nearly 90 have been cleared for repatriation or resettlement in third countries, according to an administration official. But more than 30 of those are Yemeni, and the administration is reluctant to send them home to a country plagued by a resurgent al-Qaeda and civil strife. A deal to send some Yemenis to Saudi Arabia for rehabilitation is all but dead, the official said. Other detainees are resisting repatriation, and the administration's special envoy, Daniel Fried, is still searching for enough countries to resettle the rest.
As many as 40 detainees could ultimately be brought to trial -- some in federal court and some in military commissions. Both federal and military prosecutors have also been discussing plea agreements with lawyers for detainees, according to sources who requested anonymity because of the sensitivity of the talks.
Excluding those detainees destined for transfer or trial still leaves as many as 75 inmates who will probably be held in some form of prolonged detention because they are too dangerous to release but cannot be prosecuted -- a sizable category not anticipated by some in the administration until they started to read classified files, a number of government officials said privately.
The stated reason for trying the 9/11 plotters here, while the five detained USS Cole attackers will face a military tribunal, is that the 9/11 plotters attacked civilians and the Cole plotters attacked the military. It seems a flaccid argument to me. It does, as well, to the Wall Street Journal’s James Taranto, who concludes:
[T]he administration is conducting a limited number of civilian trials of high-profile terrorists for show, so as to win "credibility" with the international left. These trials will differ from an ordinary show trial in that the process will be fair even though the verdict is predetermined. But people who wrongly think that either military commissions or detention without trial are unjust will not be satisfied with some detainees getting civilian trials--unless, of course, they are simply eager to be impressed by Barack Obama.
(Here is a study of civilian trials and military tribunals.)
While there is ample reason to believe that these will be show trials, I believe, along with others, the show trials will inure more to the benefit of the jihadists. I think they are neither designed for the purpose nor likely to achieve the aim of persuading the Muslim world or anyone else that we are so fair we are willing to sacrifice our best interests for the world’s pat on the head. They are a naked appeal to the left here and abroad who insist on treating war as a criminal act and jihadists as individual felons not worthy of concerted military responses.
The trials will also surely be used as a platform from which to attack the Bush administration’s militant response to terrorism, which included the waterboarding of KSM. Those in the defense and intelligence communities and prior administration officials who have saved us from further outrages will surely be the targets of the defendants on a world stage. The defendants will be allowed to broadcast freely throughout the world by a press generally unsympathetic to those who nabbed these monsters and brought them to account.
To paraphrase an old friend, this would be a first: the victor dragging himself off in chains.
As Congressman Pete Hoekstra reminds us:
KSM has already confessed to being not only the mastermind of the 9/11 attacks, but also to planning multiple additional attacks on Americans. He is already being held in the best possible security at Guantanamo Bay, and he has already been charged for his crimes in a military commission process where he faces the death penalty.
What possible benefit is there to bringing him into the United States for trial? There is absolutely none for the American people, but there is every benefit to KSM and al-Qaeda propagandists, who will use it as a platform to put the United States on trial and broadcast their propaganda and jihadist ideology to the world. After the Fort Hood shootings, is this propaganda really what we need on television day after day after day to incite more violence?
Rep. Hoekstra is referring to the military court proceedings at Guantanamo initiated in 2008, in which KSM refused counsel (and was joined in this refusal by his co-defendants). He stated at the time that he believed only in Sharia law and asked to be martyred by being sentenced to death. The decision to transfer the case to a civilian court begins his legal proceedings anew. It will take some time to go to trial, of course. He hasn’t even been indicted by a civilian jury yet, nor has Congress even received the requisite notice of any transfer of these men to U.S. soil.
Aside from the obvious problems of giving these thugs a world stage on which to prance and encourage more jihadists to follow them, aside from the security problems this trial will pose, and aside from the evidentiary problems in managing to keep classified information under wraps, the trial venue has a truly insidious effect. It makes us forget that we are at war with enemies who are looking for every means to breach our defenses and harm us. As Tom Maguire observes, the press is already referring to the defendants as “suspects” and KSM as “accused 9/11 mastermind,” as if they were individual bad guys, like burglars or serial murderers, and not an armed and dangerous force to be defeated on a field of battle.
Going back to this 9/10 mentality may not be so acceptable to voters these days, especially considering that we just saw where that kind of thinking can lead at Fort Hood.