HOLDER’S MOVE: MORALLY CONFUSED, DANGEROUS AND POLITICAL TO A FAULT..
IT IS ALSO OBAMA’S DECISION…RSK
http://online.wsj.com/article/SB10001424052748703683804574533622533459520.html
Eric Holder’s decision to move a trial on war crimes to American soil is morally confused, dangerous and political to a fault.
Coming soon to a civilian courtroom blocks from Ground Zero: Khalid Sheikh Mohammed and the four other al Qaeda planners of 9/11. Be sure to get your tickets early, and don’t forget to watch out for the truck-bomb barricades and rooftop snipers.
Attorney General Eric Holder, who dropped this legal bomb on New York yesterday, called his decision to move their trial on war crimes from a military courtroom at Guantanamo Bay to American soil “the toughest” he has had to make. Other words come to mind. For starters, intellectually and morally confused, dangerous and political to a fault.
This decision befits President Obama’s rushed and misguided announcement on his second day in office that he would close Gitmo within a year. This was before the Administration had thought through what to do with the 215 prisoners there, though it did win him applause in Europe and on the American left. Yesterday’s decision rids Gitmo of these meddlesome detainee cases in order to speed up this entirely political shutdown.
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Associated Press
Please spare us talk of the “rule of law.” If that was the primary consideration, the U.S. already has a judicial process in place. The current special military tribunals were created by the 2006 Military Commissions Act, which was adopted with bipartisan Congressional support after the Supreme Court’s Hamdan decision obliged the executive and legislative branches to approve a detailed plan to prosecute the illegal “enemy combatants” captured since 9/11.
Contrary to liberal myth, military tribunals aren’t a break with 200-plus years of American jurisprudence. Eight Nazis who snuck into the U.S. in June 1942 were tried by a similar court and most were hanged within two months. Before the Obama Administration stopped all proceedings earlier this year pending yesterday’s decision, the tribunals at Gitmo had earned a reputation for fairness and independence.
As it happens, Mr. Holder acknowledged their worth himself by announcing that the Guantanamo detainee who allegedly planned the 2000 bombing of the U.S.S. Cole off Yemen and four others would face military commission trials. (The Pentagon must now find a locale other than the multimillion-dollar, state-of-the-art facility at Gitmo for its tribunal.)
Why the difference? Mr. Holder seemed to suggest that the Cole bombers struck a military target overseas and thus are a good fit for a military trial, while KSM and comrades hit the U.S. and murdered civilians and thus deserve a U.S. civilian trial. But this entirely misunderstands that both groups are unlawful enemy combatants who are accused of war crimes, whatever their targets. Mr. Holder’s justification betrays not a legal consistency but a fundamentally political judgment that he can make as he sees fit.
The Military Commissions Act, by contrast, devised a careful, consistent legal process for every detainee. Remember when critics blamed President Bush for exercising too much executive discretion?
Mr. Holder expressed confidence that KSM and the rest will be convicted, but it is telling that he also delayed filing formal charges. Will KSM be formally charged with the 9/11 murders, or merely with “material support” for terrorism or some lesser offense? The specific charges may depend on how much evidence is admissable in a civilian courtroom. The MCA allowed for the reality that much of the evidence against enemy combatants may be classified, and it allowed for some hearsay evidence on grounds that they have been picked up on a battlefield, not in Brooklyn. There is no CSI: Kandahar. A civilian court has far tighter rules of evidence.
KSM and his co-conspirators so far have refused legal counsel and at one point tried to plead guilty. They may again. But an army of self-declared defenders of human rights from Yale Law and Shearman & Sterling will clamor to represent them. Those lawyers are certain to challenge all evidence obtained after KSM’s March 2003 capture on grounds that it was produced by “torture,” if you call waterboarding torture.
As he said at a hearing in 2007, “I was responsible for the 9/11 operation from A to Z.” But even that admission will probably be challenged on grounds that the trauma of his “torture” means he wasn’t capable of “informed consent.” Oh, and once he got to Gitmo in 2006, he may not have been read his Miranda rights in full. The possibility exists that one or more of these detainees could be acquitted on procedural grounds, which would be a travesty of justice.
One certain outcome is that an open civilian trial will provide valuable information to terrorists across the world about American methods and intelligence. Precisely because so much other evidence may not be admissable, prosecutors may have to reveal genuine secrets to get a conviction. Osama bin Laden learned a lot from the 1995 prosecution in New York of the “blind cleric” Sheik Omar Abdel Rahman for the first World Trade Center attack. His main tip was that the U.S. considered bin Laden a terrorist co-conspirator, leading him to abandon his hideout in Sudan for Afghanistan.
Terrorists also love a big stage, and none come bigger than New York. Zacarias Moussaoui, the so-called 20th hijacker, made his civilian trial a spectacle. Not even the best judge can entirely stop KSM and others from doing the same. And Mr. Holder has invited grave and needless security risks by tempting jihadists the world over to strike Manhattan while the trial is in session.
Most Americans, we suspect, can overlook the legal niceties and see this episode through the lens of common sense. Foreign terrorists who wage war on America and everything it stands for have no place sitting in a court of law born of the values they so detest. Mr. Holder has honored mass murder by treating it like any other crime.
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