Begin with David Beamer, father of the late Todd, whose "Let's roll!" call to action started the charge of passengers on United Flight 93, thus forcing jihadist pilots to crash in western Pennsylvania, rather than into the Capitol. Mr. Beamer writes in a Wall Street Journal op-ed:
How can we be assured that these enemies will be found guilty? Given that criminal courts are now the presumed venue for those captured on the battlefield, will soldiers need to read them their rights at the time of capture? Since you wish to make exceptions on a case-by-case basis to the presumed civil venue, don't all those captured need to be read their rights and have the opportunity to remain silent? Won't this venue expose intelligence to our enemies? Can our classified information really be secured? Can we in fact predict how the judge will rule? If these people are brought into the country will they get additional rights under immigration law? What if they claim asylum?
The attorney general seemed bewildered in the face of these inquiries. Recurring themes in his responses included "I think," and "I can't imagine," and "I am not an expert in immigration."
Has our attorney general not considered these issues, or imagined the possible unintended consequences that will arise from his historic decision? It certainly seemed that way. If he had, he would have had better answers.
A second shocker: Mr. Holder said that he and his boss had not spoken in person about this decision. This matter only involves upholding the constitutional rights of Americans, establishing a precedent with battlefield impact, and the safety and security of our citizens in a time of war. What are the criteria to make something a priority with President Barack Obama? How can it be that this matter didn't make the cut?
The Democrats used much of their questioning time to heap praise upon Mr. Holder. They all repeated the same trope: We'll show the world that America can conduct these trials openly in criminal courts. And we'll be successful, even as we convey rights to the defendants that are not warranted.
Since when has "show the world" been a primary objective?
No thoughtful questions from the majority party regarding this decision were forthcoming. Their questions mostly addressed other matters. They discussed overcrowding in our prisons (too many drug criminals being sentenced), asked why none of the $500 million in appropriations have helped the rape-kit processing backlog, and inquired about when recommendations for additional staff would be presented for confirmation. Their lack of attention to the pressing matter at hand suggested apathy.
Charles Krauthammer sees "travesty in New York" in trying the 9/11 plotters in criminal court:
Finally, there's the moral logic. It's not as if Holder opposes military commissions on principle. On the same day he sent KSM to a civilian trial in New York, Holder announced he was sending Abd al-Rahim al-Nashiri, mastermind of the attack on the USS Cole, to a military tribunal.
By what logic? In his congressional testimony Wednesday, Holder was utterly incoherent in trying to explain. In his Nov. 13 news conference, he seemed to be saying that if you attack a civilian target, as in 9/11, you get a civilian trial; a military target like the Cole, and you get a military tribunal.
What a perverse moral calculus. Which is the war crime -- an attack on defenseless civilians or an attack on a military target such as a warship, an accepted act of war which the U.S. itself has engaged in countless times?
By what possible moral reasoning, then, does KSM, who perpetrates the obvious and egregious war crime, receive the special protections and constitutional niceties of a civilian courtroom, while he who attacked a warship is relegated to a military tribunal?
Moreover, the incentive offered any jihadi is as irresistible as it is perverse: Kill as many civilians as possible on American soil and Holder will give you Miranda rights, a lawyer, a propaganda platform -- everything but your own blog.
Ken Blackwell writes in TAS of the Mad Hatter flavor of an NYC 9/11 trial. He notes also Obama's statement that KSM will be convicted and will be executed, plus Holder's statement before the Senate last week that failure is "not an option" and questions how a verdict can be perceived globally as a fair one. These statements will, one may figure, be played at the trial, ISO a juror to hang the case. A lawyer for the five defendants says that his clients will plead not guilty so as to use the trial to speak to the world. Der Spiegel reports that Germany will send a team of observers to attend the 9/11 trial; Germany provided evidence that prosecutors cannot use, because it was given on condition that it not be used in a death penalty case.
This 5-page NRO interview with a former prosecutor highlights more dangers awaiting the administration upon trial:
LOPEZ: The president told NBC’s Chuck Todd in China: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.” Is there any way to guarantee that?
BURCK: There is no way to guarantee that. The judge and the jury will make those determinations, and neither the president nor the attorney general has any power to dictate the outcome of a federal criminal trial. I do believe that there is a lot of evidence against KSM; in fact, he may not wish to contest the charges in a conventional way and instead essentially proclaim his guilt but insist on a trial as a platform for his views. This would not be dissimilar to Moussaoui’s trial.
But remember two indisputable facts: Attorney General Holder has gone on record that he believes waterboarding is torture; and it is now known that KSM was subject to enhanced interrogation techniques, including repeated use of waterboarding. KSM’s lawyer will almost certainly ask the judge to throw out all the charges against him because he was allegedly tortured. How can the Department of Justice contest that KSM was tortured if the attorney general has gone on record that waterboarding is torture? They can’t. Jose Padilla and other convicted terrorists have sought to have charges thrown out on the basis of the so-called “outrageous government misconduct” doctrine, and so far they have not been successful (in Padilla’s case, however, the government did not concede that he had been abused). But no one can really dispute that there are some judges who would give serious consideration to KSM’s request based on his supposed torture, and there is at least some case law that supports it. That doesn’t mean he would be released if he were to get the charges dismissed — the Obama administration (I hope) would exercise other authorities available to it to keep KSM in some form of custody. But there is no doubt that once the grand jury returns an indictment, the prosecutors lose a lot of control and the most important decision-makers are the judge and the jury.
LOPEZ: Further: Is that the way the justice system should work? Nevermind war?
BURCK: Our federal criminal-justice system is premised on the complementary notions that all defendants are presumed innocent and the burden of proving the defendant’s guilt beyond a reasonable doubt rests solely and at all times with the government. Those principles will apply no less to KSM than they do to any other criminal defendant. I sincerely hope that shoving KSM into the criminal process won’t create bad precedent that helps convict KSM but undermines the rights and protections that Americans accused of crimes currently have. But we are already seeing unusual behavior for a criminal case. Typically, federal law-enforcement officials like the attorney general keep their public comments about criminal cases to a minimum because, for example, they do not want to be accused of tainting the jury pool. Federal prosecutors learn that you do 99 percent of your talking about a criminal case in the courtroom and only in the courtroom. The attorney general and the president are being remarkably free about predicting KSM’s conviction and execution — and discussing the facts of the case against him — given that this is a criminal case. KSM’s lawyers will likely argue to the judge that he can’t receive a fair trial in part because of their pre-trial comments.
But National Journal legal ace Stuart Taylor sees the trial as the right choice. Taylor is a top-drawer legal writer, so let us offer parts of his argument, while noting that the full article merits a close read. He sees two grand benefits to a criminal trial:
One advantage is that a civilian trial will show Americans and the rest of the world that our government is sure it can prove the 9/11 defendants guilty in the fairest of all courts; is confident that the hate-filled propaganda of the accused will appeal only to barbarians like themselves; and will not let fear of more terrorist attacks drive the trial away from the most logical venue, which is the federal courthouse near the scene of the most horrific crime.
Trying the 9/11 defendants before military commissions, on the other hand, would be widely (if unfairly) denounced as designed to ensure convictions regardless of the evidence. A decision to continue holding the suspects without trial -- after eight years of presidential vows to put them on trial -- would be a damning admission that America is simply not up to the task of bringing war criminals to justice.
A second advantage is that international opinion sees civilian trials as the only legitimate way to deal with those accused of terrorism.
ST raises two more points, as to international opinion, that merit consideration:
"I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo," Matthew Alexander, a former military interrogator in Iraq, wrote in a November 2008 Washington Post op-ed. "At least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse."
The abuses symbolized by Guantanamo have also taken a toll on the willingness of foreign governments to help us fight terrorism.
To be sure, Guantanamo had become a model prison by the time President Bush left office, and the international condemnation is outdated. But it is still a fact of life, and is critical to a hard-headed appraisal of the benefits of a civilian trial.
Taylor runs off about half a dozen rejoinders to objections made by those who oppose the move. Here is one, as to jurors:
• Crazy jurors. The chance of an acquittal seems infinitesimal. Yes, a few juries have done crazy things. But to have a chance of emulating O.J. Simpson's success at playing the race card, for example, Mohammed would need a jury full of jihadist sympathizers. That's a statistical impossibility. In any event, any defendant acquitted of war crimes could still lawfully -- if awkwardly -- be held as an enemy combatant.
Taylor would do well, as to the latter point, to read this NY Post article on renegade jurors in big NYC trials. Better yet, he misses two points. First, it only takes one juror to hang a case. Let there be two hung juries, and a third trial will look like unfair treatment to impressionable Muslims overseas, the target audience President Obama seeks to sway by showing how fair we can be to our worst enemy. And let there be an acquittal, and international pressure to release KSM will be intense. Does Taylor really believe that Muslims worldwide will approve of our holding KSM in jail AFTER an acquittal? (Or, even, after a couple of hung juries?) FAT CHANCE. They will perceive a fraud, especially given al-Jazeera covering events.
Bottom Line. Team Obama is betting the proverbial farm on impressing "world opinion"--first among all, Muslims--with this showcase trial. There are huge risks that it will backfire spectacularly.
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