No reason of law or justice, history or tradition, supports the trial of Khalid Sheikh Mohammed et al. in federal court. Indeed, as Thomas Sowell observes, it is something of an obscenity.
The cost of cloaking Khalid Sheikh Mohammed et al. with the constitutional protections afforded American citizens comes at a steep price. John Yoo spelled it out in painful detail in the Wall Street Journal yesterday: “Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal.”
The price specified by Yoo is not speculative. Following the bombing of the World Trade Center in 1993, the perpetrators were prosecuted in the same court that will host KSM. Citing then-prosecutor Andrew McCarthy, Yoo makes this point as well:
During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the “blind Sheikh”), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.
In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.
Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.
For the ordinary citizen of average intelligence, these are powerful points that tell against treating KSM et al. as if they are American citizens charged with common crimes. What drives Barack Obama?
At the same time time that the Obama administration announced its decision regarding KSM et al, it also announced that it will try other Guantanamo detainees before the military commissions established by Congress conforming to the Supreme Court’s specifications. If anything, however, the acts of KSM et al. against the United States are far more heinous and destructive than those of the others to be tried by military commission. No serious rationale supports this disparate treatment.
Again one asks: Why is Obama doing it? One searches Saturday’s Washington Post story on the decision in vain for an explanation.
The text to which we necessarily turn is Attorney General Holder’s announcement of the “forum decisions for 10 Guantanamo Bay detainees.” Addressing KSM et al., here is what Holder said:
I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures….
[M]y 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 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 – that must be considered. In consultation with the Secretary of Defense, I looked at all the relevant factors and made case by case decisions for each detainee.
In his announcement Holder never quite gets around to articulating the rationale or applying it to the cases. He leaves the rationale unstated. It is, you might say, the dove that dare not speak its name.
At the conclusion of his announcement Holder states: “For over two hundred years, our nation has relied on a faithful adherence to the rule of law to bring criminals to justice and provide accountability to victims.” But the United States has never tried enemy leaders responsible for acts of war in civilian courts. Never before in American history has the United States brought the leaders of its enemy to trial in a civilian court and cloaked them with the protections of the United States Constitution.
Holder’s description of kSM et al. as “criminals” comes as close to a key to the decision as we are going to get, at least for the time being. In the words of the late John Lennon, whose deep thoughts seems to provide the inspiration for much of the Obama administration, “WAR IS OVER! (if you want it).”
UPDATE: I should have noted that Andrew McCarthy offers the rationale of politics.