What were President Obama and Attorney General Eric Holder thinking when
they decided to try Khalid Sheikh Mohammed, the chief architect of the 9/11
attacks, and four other al Qaida bigwigs in a civilian court in New York
From the standpoint of politics, this decision makes no sense. According
to a CNN/Opinion Research Corp. poll released Monday (11/16), only 34
percent of Americans support the decision to try the al Qaida bigwigs in a
civilian court. Sixty four percent say they should be tried by a military
commission, as the Bush administration was planning to do.
"The decision to bring Khalid Sheikh Mohammed in front of a civilian court
is universally unpopular even a majority of Democrats and liberals say
that he should be tried by military authorities," said CNN Polling Director
The decision is unlikely to grow more popular with time. At a minimum, a
highly publicized trial will remind Americans of the 9/11 attacks,
something Democrats have been encouraging us to forget.
The potential consequences for the United States of extending to these
terrorists the constitutional rights afforded U.S. citizens in a civil trial
The legal status of the al Qaida bigwigs none of whom are U.S. citizens
was that of unlawful combatant. In attacking the World Trade Center and
the Pentagon, they committed an act of war, but did so in a manner which
deprives them of prisoner of war status under the Geneva Convention of 1949.
To be recognized as lawful combatants, irregulars must meet four criteria,
the Geneva Convention states. The criteria are "(a) that of being
commanded by a person responsible for his subordinates; (b) that of having a fixed
distinctive sign recognizable at a distance; (c) that of carrying arms
openly; and (d)
that of conducting their operations in accordance with the laws and
customs of war."
The al Qaida bigwigs fail to meet three of those four criteria, and thus,
under international law, are entitled only to such "rights" as their
captors are willing to extend to them. And now Mr. Obama and Mr. Holder have
decided to give them the rights of American citizens.
The most consequential of those rights is that of discovery the right of
American defendants to see the evidence the prosecution has against them.
"Prosecutors will be forced to reveal U.S. intelligence on KSM, the
methods and sources for acquiring its information, and his relationships to
fellow al Qaida operatives," wrote former Justice Department official John Yoo
in the Wall Street Journal Sunday (11/15). "The information will enable al
Qaida to drop plans and personnel whose cover is blown. It will enable it
to detect our means of intelligence-gathering, and to push forward into
areas we know nothing about."
The concern isn't hypothetical. Andrew McCarthy, who prosecuted the
blind sheikh, Abdel Rahman, after the 1993 World Trade Center bombing, was
required to turn over to defendants a list of 200 possible co-conspirators
which, he said, was delivered to Osama bin Laden within days of its production
as a court exhibit. Mr. McCarthy declined to prosecute another suspect in
that bombing for fear the intelligence loss through discovery outweighed the
benefits of a conviction.
To fail to turn over intelligence sought through discovery is to run the
risk that KSM and his co-conspirators might be acquitted on a technicality.
But to release them would be political poison for Democrats. They would
have to be held despite being found not guilty. But that would make a
mockery of the one public claim Mr. Holder has made for this decision, that a
civilian trial would showcase American justice.
Even if no vital intelligence were disclosed to al Qaida, a civilian trial
will be a propaganda fest, as was the trial of "20th hijacker" Zacarias
Former Justice Department official Shannen Coffin thinks the real reason
is President Obama hopes KSM and his lawyers will attack the Bush
"The decision to try KSM in civilian court accomplishes indirectly what
Obama does not wish to do directly it puts the Bush administration's
interrogation tactics on trial for all the world to see," Mr. Coffin said.
This would be red meat for the liberal base. But it's unlikely to be
popular with centrists who are already unhappy with Mr. Obama's economic
This has been, arguably, the most political administration in modern
times. Ten months after his inauguration, Mr. Obama still behaves more like a
candidate than like a president. But in pursuing his vendetta against his
predecessor at the expense of American security, he may be campaigning to be
a one term president.