In his press conference this past Friday and in his testimony before the Senate Judiciary Committee today, Attorney General Holder has explained his decision to refer KSM and his 9/11 co-conspirators to trial based on a “protocol” released in July.
What protocol? I don’t recall reading anything about it at the time it was released, or seeing anything about it in connection with Holder’s decision to deliver KSM et al. to federal court in New York for trial cloaked with the constitutional rights of American citizens.
I called the Justice Department this morning to ask for a copy of the protocol and was directed to the document in issue. It is titled “Determination of Guantanamo Cases Referred for Prosecution.” The first paragraph describes a process for determining which cases are to be referred for criminal prosecution. The second paragraph sets forth the “Factors for Determination of Prosecution.” It reads as follows:
There is a presumption that, where feasible. referred cases will be prosecuted in an Article III [federal] court, in keeping with traditional principles of federal prosecution. Nonetheless, where other compelling factors make it more appropriate to prosecute a case in a reformed military commission, it may be prosecuted there. That inquiry-turns on the following three broad sets of factors, which are based on forum-selection factors traditionally used by federal prosecutors:
A. Strength of Interest. The factors to be considered here are the nature of the offenses to be charged or any pending charges; the nature and gravity of the conduct underlying the offenses; the identity of victims of the offense; the location in which the offenses occurred; the location and context in which the individual was apprehended; and the manner in which the case was investigated and evidence gathered, including the investigating entities.
B. Efficiency. The factors to be considered here are protection of intelligence sources and methods; the venue in which the case would be tried; issues related to multiple-defendant trials; foreign policy concerns; legal or evidentiary problems that might attend prosecution in the other jurisdiction: and efficiency and resource concerns.
C. Other Prosecution Considerations. The factors to be considered here are the extent to which the forum, and the offenses that could be charged in that forum, permit a full presentation of the wrongful conduct allegedly committed by the accused, and the available sentence upon conviction of those offenses.
Despite the bare bones nature of the enumerated factors and the lack of detail regarding how they are to applied, this is a shocking document. The operative presumption is a rule in favor of criminal prosecution. Nothing could more clearly indicates the Obama administration’s treatment of the war on terrorism as a venture in law enforcement. In the words of the late John Lennon: “WAR IS OVER! (if you want it).”
Given the referral of the case against KSM et al. for prosecution in federal court, we can do a little reverse engineering to figure out how the enumerated factors are apparently applied by the Obama administration. If the attack occurred in the United States, it weighs in favor of criminal prosecution. If the attack focused on American civilians, it weighs in favor of criminal prosecution. (It is less clear to me how the other factors are weighed and applied in practice.) Application of these factors can convert heinous acts of war and war crimes into criminal offenses with respect to which the perpetrators are subject to the protections of the Constitution of the United States.
That way madness lies. The Obama administration is engaged in a venture that will simultaneously undermine the prosecution of the war in which we are engaged while it blurs the distinction between war and crime. It is a venture that works a great burden on the federal courts and prosecutors. To what end?
With a few exceptions, Attorney General Holder has been exceedingly wary of articulating the application of the “factors” to KSM et al. other than by general reference to the “protocol.” As we pointed out, what Holder has said about application of the factors makes no sense at all. Attacks on Americans in the United States are presumably to be treated as crimes subject to prosecution in federal court. Why? What is the underlying rationale? Again, Holder has been wary of articulating it.
Whatever it is, notice should be taken. The Obama administration’s “protocol” sends up a red flag signaling a great danger to the people of the United States.
UPDATE: Andrew McCarthy comments here.