Friday, November 13, 2009

Obama's irresponsible and dangerous decision to try Khalid Sheikh Mohammed and other 9/11 conspirators in U.S. court in New York City

Khalid Sheikh Mohammed (R) and co-defendants Walid Bin Attash (C) and Ramzi Bin al Shibh at a Gitmo hearing last year

Nothing good can come of the decision by President Obama and Attorney General Holder to try 9/11 mastermind Khalid Sheikh Mohammed and four of his co-conspirators in federal court in Manhattan a few blocks from the hole in the ground where the World Trade Center used to be. The Administration has chosen an irresponsible and dangerous path -- and an unnecessary one.

All five of these guys were set to go on trial last year before the Military Commissions established by Congress for that purpose. On December 8, 2008, the five informed the military judge that they wished to withdraw all motions made on their behalf by their lawyers and plead guilty, even though they faced a possible death penalty. They told the judge that they had made this decision "without being under any kind of pressure, threat, intimidation's or promise from any party.

If the military tribunals had been allowed to continue their proceedings, KSM and his cohorts likely would already have been tried, convicted and sentenced. However, immediately on taking office, President Obama announced that he would close Guantanamo within a year and ordered that the proceedings of the Military Commissions be suspended as his team considered what to do with the Gitmo detainees. Thus, the impending trial of the five 9/11 plotters was put on the back burner.

If today's announcement of trials in federal court was necessary because the Administration had ruled out the use of the military tribunals for whatever reason, it might make some sense. But Obama actually reinstated those tribunals in May with some added due process protections for detainees. Even more inexplicable, even as the KSM five are being hailed into court in New York's Foley Square, four other al Qaeda operatives now held at Gitmo -- including Abd-al-Rahim al Nashiri, accused of planning the 2000 bombing of the U.S. Navy destroyer Cole in Yemen -- will be tried before a Military Commission.

Why all nine of these characters cannot be tried before Military Commissions, when four of them can be, is beyond me. There is a lot of rhetoric being thrown around today by supporters of the Obama-Holder move to the effect that it shows the world that we have absolute confidence in our courts and system of justice. If so, why try al-Nashiri and three others before military tribunals? On top of that, the Obama Administration has made clear that it can and will hold some captured terrorists indefinitely without any trial, if they deem them too dangerous to release. So pardon me if I decline to see today's announcement as some sort of triumph of "justice."

While there is nothing on the plus side for this decision, there are plenty of things on the down side:

First, KSM and the others, assured of a big platform at the epicenter of the worldwide media, will now plead not guilty and use the trial to put the United States government on trial. They will do their best to push out daily propaganda to millions of Muslims around the world. It will be one huge show trial -- a show for the defendants!

Second, our nation's best and brightest lefty lawyers will be falling all over themselves to get a piece of this defense. Dozens of lawyers will demand disclosure of virtually everything about the actions of U.S. intelligence and the actions of allied and friendly countries in pursuing and capturing this al Qaeda crew. While the court will probably curb their appetite, they will win some disclosures, perhaps a lot more than is safe, depending on the judge.

Third, New York City, already the most desired (and hit) target of al Qaeda and its sympathizers, will have a big new reason to worry about being hit again. Only those who believe foolishly that al Qaeda has been vanquished never to be heard from again, can dismiss the obvious attraction of striking New York in the middle of KSM's trial. They may not be able to hijack airliners anymore, but, as last week's Fort Hood massacre ought to show everyone, there are lots of ways that deadly terror attacks can happen without elaborate schemes, 20-man crews and major resources.

Finally, although it's not likely, the government might not win convictions for one or more of these defendants. It only takes one juror to hang a jury, and those smart defense lawyers will do everything they can to assemble a jury that includes at least a few members they think will be open to a defense that turns the tables on the government. What then? There is no chance that any Administration will ever let any of these guys walk free. So it will all be back to square one.

It's utterly irresponsible and dangerous to do this. It's a choice that President Obama may turn out to regret.

What are your thoughts? Post a comment.

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