Trying KSM: Why? part 2

Speaking at a town hall meeting in Pennsylvania last year during the campaign, Barack Obama addressed the Supreme Court’s Boumediene decision granting Guantanamo detainees the right to challenge their confinement through habeas corpus proceedings in federal court. Obama asserted that the “principle of habeas corpus, that a state can’t just hold you for any reason without charging you and without giving you any kind of due process — that’s the essence of who we are.” He explained:

I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.

John Hinderaker and I derived some precepts for trial lawyers from the Nuremberg trial in “Lessons from the cross-examination of Hermann Goering.” In the course of researching that article I was reminded that the Nuremberg trial was conducted before a military commission composed of representatives of the United States, Great Britain, France and the Soviet Union. The most prominent surviving Nazi leaders were brought for trial before the Nuremberg tribunal in late 1945. Winston Churchill had proposed, not unreasonably, that they be summarily shot. The victorious allies nevertheless subsequently agreed that they would be brought before a military commission to be convened pursuant to the London Agreement of August 8, 1945.
In the Boumediene case, the Supreme Court disapproved of the system of military commissions Congress had adopted at the Supreme Court’s urging. Obama to the contrary notwithstanding, the Nuremberg defendants’ “day in court” occurred before the kind of tribunal the Supreme Court found constitutionally inadequate in Boumediene.
The Nazi war criminals were given no access to American courts. Their rights were governed by the charter annexed to the London Agreement. Here is the fair trial provision of the charter:

In order to ensure fair trial for the Defendants, the following procedure shall be followed:
(a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.
(b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.
(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.
(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.
(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.

The charter provision on the appeal rights of the Nuremberg defendants was even shorter and sweeter. There were no appeal rights. Article 26 provided: “The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review.”
In short, the procedural protections afforded the Guantanamo detainees under the statute before the Supreme Court in Boumediene substantially exceeded those accorded the Nuremberg defendants. Obama’s unfavorable comparison of the legal treatment of the Guantanamo detainees with that of the Nuremberg defendants suggests that he did not know what he was talking about.
The revised system of military commissions now applicable to the Guantanamo detainees affords Khalid Sheikh Mohammed et al. — the perpetrators of 9/11 — all the protections to which American law entitles them. Now Obama — to whom the decision must be attributable, regardless of the pretense that the buck stops with Eric Holder — has chosen to bring KSM et al. to federal court in New York for a civilian trial as though he and his colleagues were common criminals. Why? Doing so carries with it certain necessary consequences and obvious risks that have already been the subject of informed comment:

1. Obama confuses the commission of crimes with acts of war. The 9/11 attacks on the World Trade Center and the Pentagon constituted acts of war.
2. Obama cloaks KSM et al. with all the constitutional protections to which American citizens are entitled under the United States Constitution.
3. Obama affords KSM et al. a public forum for the waging of their war by other means.
4. Those who apprehended and detained KSM et al. treated them as enemy combatants from whom valuable intelligence was sought and received. Trying them in federal court creates otherwise unnecessary issues regarding the admissibility of this evidence and provides them another avenue of attack on those defending the United states against them.
5. The treatment of evidence in connection with the trial raises a serious threat that national security will be compromised.
6. The trial of KSM et al. in New York by itself raises severe security risks.

Given the availability of military commissions to try KSM et al., one asks why Obama has chosen to bring them to trial in federal court in New York. One searches Saturday’s Washington Post story on the decision in vain for an explanation.
No consideration of justice, history or tradition weighs in favor of treating KSM et al. as criminal defendants. Against the predictable negative risks and negative consequences, advocates of Obama’s decision offer airy considerations of public relations. It is hard to take any professed rationale of a civilian trial seriously.
Judging Obama’s treatment of KSM et al. by its predictable effects rather than its apparent intentions, one arrives at a harsh conclusion. If Obama sought to subvert fundamental American institutions or to confuse the understanding of the American people — upon both of which America’s future depends — he would proceed as announced.
JOHN adds: On our radio show yesterday, Andy McCarthy proposed an explanation that amplifies on Scott’s last paragraph. He suggested that the Obama administration views KSM et al. as its allies (my paraphrase) in its war against the Bush administration. Obama expects them to make their treatment by the Bush administration, real and imagined, the centerpiece of their defense, with the possible result that Bush, Cheney, and others may be indicted as war criminals by European countries or international courts, thereby satisfying the far left of the Democratic Party, which Obama represents. I’ll post a podcast of the interview when it’s available.

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