Former Attorney General Michael Mukasey is one of the many distinguished lawyers participating at the Federal Society’s annual national lawyers conference here in Washington this week. As luck would have it, he was on the program for a speech this afternoon, not long after the Obama administration announced its decision to try Khalid Sheikh Mohammed and three other terrorists in federal district court in New York.
Mukasey is uniquely qualified to talk about this issue. Not only was he a war-on-terror-time Attorney General (you remember the war on terror, don’t you?), but he was also the judge who presided over the trial, also in New York, of those implicated in the first World Trade Center bombing.
Mukasey did not mince his words about the decison to try KSM in federal court. He called this decision “not only unwise, but based on a refusal to face the fact that what we are involved with here is a war with people who follow a religiously-based ideology that calls on them to kill us.” Mukasey viewed the administration’s approach as “a return. . .to the mindset that prevailed before Sept. 11 that acts like the first World Trade Center bombing, the attacks on our embassies in Africa and other such acts can and should be treated as conventional crimes and tried in conventional courts.”
Mukasey explained some of the difficulties of using civilian courts to try terrorists. These include the discovery process, the public presentation of evidence, and other elements of a trial that “could turn a criminal proceeding into a cornucopia of information for those still at large and a circus for those in custody.”
He also noted that when terrorists like KSM were captured, we did not gather information on the assumption that it would be presented in federal court. Thus, the prosecution is at a disadvantage in proceeding down this road now. (Some will glibly say that this is the Bush administration’s fault for the way it handled KSM, but at that time the adminisration was properly focused on preventing a follow-up attack to 9/11).
Mukasey also pointed to the obvious security issues that will be associated with the KSM trial. All things considered, he concluded: “It would take a whole lot more credulousness than I have available to be optimistic about the outcome of this latest experiment.”
However, the biggest problem is not the outcome of the “experiment,” but rather Mukasey’s initial concerns — the fact that we’re experimenting at all and what it signals about this administration’s lack of seriousness when it comes to terrorism.
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