Thursday, November 19, 2009

Terrorism Trials and "KSM"

Holder Defends Decision to U.S. Courts for 9/11 Trials:

Attorney General Eric H. Holder Jr. on Wednesday defended his decision to prosecute five men accused as co-conspirators in the Sept. 11 attacks in federal court in Manhattan, declaring that while he believes “we are at war,” that the venue was the best place to pursue the case against them.

Despite criticism that holding such a trial presented greater risks than a military commission, Mr. Holder argued that there were fewer differences between the rules for federal court and the military panels than some critics realize. And, he argued, the Southern District of New York has a long history of successfully prosecuting terrorism suspects.

“We need not cower in the face of this enemy,” Mr. Holder said, testifying before the Senate Judiciary Committee. “Our institutions are strong, our infrastructure is ready, our resolve is firm, and our people are ready.”

As I have been arguing for years now, terrorism is fundamentally a criminal act. We can put all the politically correct caveats about our being "at war" with terrorism (as we are with drugs, criminals, obesity, smoking, etc.), but fundamentally a terrorist belongs in a criminal court and then behind bars and/or given the death penalty. On that note, kudos to the new A.G. and the strident defense of his decision (although his “Failure is not an option,” prediction about the outcome of the trial was a bit syllogistic, not to mention legally risky).

However, the opposition who believes "we are at war" is a literal interpretation of stopping terrorism isn't going to take this lying down. The "spectacle" of a trial here in the U.S., in Gotham no less, mere blocks from the WTC towers, is apparently too much for some to handle.

Former Mayor Rudy Giuliani said Thursday that trying self-professed Sept. 11 mastermind Khalid Sheikh Mohammed in a federal civilian court in New York is unwise and unnecessary.

Former Attorney General John Ashcroft, in an interview with NBC, said the administration's decision to turn to the civilian court system "may be a new level of repudiation" of the notion that the United States is undertaking a war on terror.

“The big problem I have is that you’re criminalizing the war,” said Senator Lindsey Graham.

I'm sure he said that last part without a trace of irony, but notice the use of the phrase "civilian court." Khalid Shaikh Mohammed (who is now being tagged "KSM" by all the hipster pundits out there, as if the guy is a DJ or something) and his cohorts are being tried in federal criminal court. The use of the phrase "civilian court" is designed to make it sound like these guys are being hauled into civil court, where we sue people and render financial judgments. You don't get the death penalty in civil court.

Secondly, what really bugs the opponents of this is that a criminal court trial of "KSM" will, indeed, undermine the very idea that terrorism is more than a criminal action. Check out some of the hysterical reactions:

"Since he dropped his bombshell on Friday, much commentary has focused on the possibility that KSM might be found not guilty. The perversity here is that the overwhelming evidence of their war crimes gain them protections denied a soldier fighting in accord with the rules of war. By going down this line, Mr. Holder has invited any number of dangers: making the Manhattan courtroom a target for terrorist attack, inviting the disclosure of sensitive intelligence, opening the possibility that some al Qaeda operative will be acquitted and released within the U.S., etc." warned William McGurn of the WSJ.

"Holder does not believe America is at war with terrorists. Even worse, he seems determined to undermine those who do. His assault is on those who believe America is at war with terrorists," thundered Michael Gerson of the WaPo.
No, his "assault" is on the idea that terrorism is an act of war. Terrorism is a criminal act, punishable by life in prison or even the death penalty (see also: this rogue's gallery of infamous terrorists convicted, confined and/or executed in our criminal justice system over the years).

And the notion that "KSM" is going to turn the courtroom into a "circus" and a "poster for al Qaeda recruitment" is equally ludicrous. Not only do the rules of the federal courts allow proceedings to be sealed right from the beginning of the trial, but any future transcripts can be sealed, redacted or censored at the court's discretion. The information the government doesn't want you to hear is never going to leave that courtroom.

Holder is certainly going to take heat for this, but the decision is correct. The other Gitmo detainees who are being tried in military tribunals are accused of terrorist acts against members of the military. This is the appropriate venue for them, as it is domestically with accused Ft. Hood shooter Nidal Hasan, who will be tried for the crimes of homicide in the military system of justice.

Said Holder, summing up his testimony yesterday: “I’m not scared of what Khalid Shaikh Mohammed has to say at trial. And no one else needs to be afraid either. I have every confidence that the nation and the world will see him for the coward that he is.”

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