Saturday, November 14, 2009

Eric Holder's decision

The Washington Post has an article today about what a very tough decision it was for Eric Holder to decide to try Khalid Sheik Mohammed in New York City. I thought it was going to be an article about his deciding between using a military commission or civilian court. But no, the really tough part of his decision was choosing between whether the trial should be in New York City or Alexandria, Virginia. He finally chose New York City because he became convinced that there was better security in place to hold the trial there.

He should have struggled more over the decision to reject the military commission. It's not as if he is rejecting military commissions for other trials. As the WSJ points out, he chose them for the perpetrators of the bombing of the USS Cole.
Why the difference? Mr. Holder seemed to suggest that the Cole bombers struck a military target overseas and thus are a good fit for a military trial, while KSM and comrades hit the U.S. and murdered civilians and thus deserve a U.S. civilian trial. But this entirely misunderstands that both groups are unlawful enemy combatants who are accused of war crimes, whatever their targets. Mr. Holder's justification betrays not a legal consistency but a fundamentally political judgment that he can make as he sees fit.
Well, wasn't the Pentagon a military target? Why make that difference? Why open up all the possibilities for dangerous mischief that the civilian court might offer?
One certain outcome is that an open civilian trial will provide valuable information to terrorists across the world about American methods and intelligence. Precisely because so much other evidence may not be admissable, prosecutors may have to reveal genuine secrets to get a conviction. Osama bin Laden learned a lot from the 1995 prosecution in New York of the "blind cleric" Sheik Omar Abdel Rahman for the first World Trade Center attack. His main tip was that the U.S. considered bin Laden a terrorist co-conspirator, leading him to abandon his hideout in Sudan for Afghanistan.

Terrorists also love a big stage, and none come bigger than New York. Zacarias Moussaoui, the so-called 20th hijacker, made his civilian trial a spectacle. Not even the best judge can entirely stop KSM and others from doing the same. And Mr. Holder has invited grave and needless security risks by tempting jihadists the world over to strike Manhattan while the trial is in session.

Most Americans, we suspect, can overlook the legal niceties and see this episode through the lens of common sense. Foreign terrorists who wage war on America and everything it stands for have no place sitting in a court of law born of the values they so detest. Mr. Holder has honored mass murder by treating it like any other crime.
No wonder former attorney general Michael Mukasey is so critical of this choice.
The difficulty of trying terror suspects through civilian courts, he said, is that the discovery process, the public presentation of evidence, and other elements of a trial "could turn a criminal proceeding into a cornucopia of information for those still at large and a circus for those in custody.”
This would have seemed a case tailor-made for the military tribunals. The mere choice of victim shouldn't be the deciding factor. Whether he was orchestrating the death of office workers in Manhattan or the Pentagon or was part of a plan to kill U.S. sailors in Yemen, KSM was planning acts of war against the United States. The civilian courts are not the place for those who are at war against us.