One of many puzzling aspects of the Obama administration’s decision to try Khalid Sheikh Mohammed and others in federal court is the fact that other terrorists will be tried by military tribunals. For example, Abd al-Rahim al Nashiri, who led the attack on the USS Cole, will be tried and sentenced by such a tribunal.
This raises two questions: If the administration acknowledges that military tribunals are an adequate and appropriate venue in which to try terrorists, why is it so necessary to bring some to the U.S. for a jury trial accompanied by the full panoply of Constitutional protections? And how did the administration decide which terrorists to give public trials, which inevitably will turn into media circuses, rather than trial by military commissions?
Eric Holder answered the second question, if not the first, in the press conference in which he announced the trials:
In each case, my decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed, and that was announced publicly in July.
Because many cases could be prosecuted in either federal courts or military commissions, that protocol sets forth a number of factors, including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated. All of these things must be considered.
In consultation, again, with the secretary of defense, I have looked at all of the relevant factors and made case-by-case decisions for each detainee.
Holder elaborated later in the press conference:
QUESTION: How much of a factor for you was it that in the case of the five 9/11 detainees you’re returning them basically to the scene of the crime?
HOLDER: Well, that is something that typically happens in the criminal law. The cases are typically tried in the place where the offense occurred, and so that was one of the factors.
There are a number of other factors that went into making that determination, including the nature of the people who were the victims: largely civilians in New York.
In addition to that, this is a matter that, as I said, happened in this country as opposed to overseas, which is different from what we might do with regard to those who are going to be tried in the military commissions.
But that is a fundamental tenet of American jurisprudence, that crimes are tried in the places where they occur.
This illustrates the perversity of mindlessly applying the criminal law template to terrorist attacks. What is the implication of Holder’s criteria? Put yourself in the place of a would-be terrorist: If you want to garner maximum publicity; if you want to make yourself into a world-famous martyr; if you want an endless platform for disseminating jihadist propaganda; if you want to be treated with kid gloves at all times; what should you do? That’s right: you should organize an attack on American soil that kills thousands. You’ll be rewarded with top-flight legal representation at taxpayer expense and a forum in which to advance the cause of jihad.
Like so many things the Obama administration does, this creates exactly the wrong incentives and needlessly puts American lives in danger.