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.

10 comments:

equitus said...

It seems the decision is really all about "sending a message" to the world, to win hearts and minds of those who think America is an unjust society, to make some kind of grand gesture.

Such idealism is not only pointless and ineffectual, in this case it is extremely dangerous. Once again, Obama and the far left put symbolism and feel-good policies ahead of the nation's security and self-interest.

Fortunately, independents and a number of thinking Dems are waking up to this travesty of our current government.

Pat Patterson said...

Well, at least the trials will give Geraldo Rivera something to do other than diggin holes in the ground. Plus I can hardly wait to see the out-on-bail Lynne Stewart on TV again defending the indefensible. Or Ramsey Clark. Ah, good times and all done with Jefferson Airplane's White Rabbit in the background.

http://tinyurl.com/c75pog


Aside for the stupidity of this move what concerns me is that there seemed to be absolutely no concern for the political consequences. If even one of the major cases ends in acquittal then Pres Obama will suffer and he won't have GW Bush to try to blame. Maybe?

tfhr said...

Pat Patterson,

Not blame Bush? Bush was the one that didn't Mirandize KSM! Hey, as long as we're giving a sworn enemy of the United States the same Constitutional rights as Americans, how can we possibly prosecute a man that didn't get his rights read to him in Pakistan? Was his extradition done in compliance with US laws?

But really, none of that is as important as the chance this will provide judge Lance Ito to revitalize his career - and just in time too, since OJ finally went to jail on another charge more than a decade after he murdered a couple of citizens.

Besides, how can a good Dem say "no" to a lovable face like this:

http://thumbsnap.com/v/uJ9Z4FCQ.jpg

This will be portrayed as the face of Islam and every insane utterance will be allowed to taint the Muslim faith in front of an audience of untold millions but Obama doesn't care because he cannot resist the opportunity to put the CIA, the Bush administration, and the United States of America on trial.

Pat Patterson said...

I might have agreed a few months ago but most of the polls show that Americans think of Obama's wars and Obama's economy. Plus this didn't work for the Republicans when trying to shift the blame to Clinton. Probably the difference was that Bush made no such claims and shouldered the reponsibility while I'm not sure if Obama was ever responsible for anything in his entire life.

tfhr said...

Pat Patterson,

Don't make me have to use the sarc/on - sarc/off device.

Pat Patterson said...

I realized that but the point about KSM not being read the Miranda warning is bound to be a tactic any competent lawyer would use in a civilian court.

equitus said...

I think tfhr may be onto something, that Obama and the left will blame their failures in trying KSM on Bush. By following the established military policy of incarcerating and interrogating illegal combatants, the Bush administration rendered inadmissable all kinds of convicting evidence (Bush violated their rights!), and so "justice" cannot be done.

It's insane and ignorant of all history, but I'll bet Obama and his flock will try to frame it that way.

The real shocker will be seeing how the media and the rest will fall for it.

tfhr said...

Pat Patterson,

You can count on that tactic and more. I'd bet my next paycheck that much will be said about exculpatory evidence withheld because it would compromise sources and methods. "How can you convict the defendant if he cannot review all of the evidence?"

BDS will drive this Justice Department to make errors that will likely result in sentences that are reduced for some of the co-conspirators and may save KSM from the death penalty. But they could care less because this is really about trying political enemies on the right.

Pat Patterson said...

Or how about suboenaing all the Pakistani police, military and ISI that participated in yanking KSM from his hotel bed? Or discovery? Or the fact that according to Pakistani law KSM had to appear before a court before being extradited. Let the games begin!

This in a sense is tantamount to demanding a court hearing to determine if Adm Yamamoto's plane could be shot down or prosecuting the pilots for violating some part of the Geneva Conventions.

tfhr said...

"I fear we have awakened a sleeping, giant circus" ~Judge Lance Ito