Holder's al Qaeda Incentive Plan
The worse the terrorist, the more rights he has?
When it comes to terrorists, you would think that an al Qaeda operative who targets an American mom sitting in her office or a child on a flight back home is many degrees worse than a Taliban soldier picked up after a firefight with U.S. Army troops.
Your instinct would be correct, because at the heart of terrorism is the monstrous idea that the former is as legitimate a target as the latter. Unfortunately, by dispatching Khalid Sheikh Mohammed and other al Qaeda leaders to federal criminal court for trial, U.S. Attorney General Eric Holder will be undermining this distinction. And the perverse message that decision will send to terrorists all over this dangerous world is this: If you kill civilians on American soil you will have greater protections than if you attack our military overseas.
"A fundamental purpose of rules such as the Geneva Conventions is to give those at war an incentive for more civilized behavior—and not targeting civilians is arguably the most sacred of these principles," says William Burck, a former federal prosecutor and Bush White House lawyer who dealt with national security issues. "It demolishes this principle to give Khalid Sheikh Mohammed even more legal protections than the Geneva Conventions provide a uniformed soldier fighting in a recognized war zone."
We don't often speak of incentives in war. That's a loss, because the whole idea of, say, Geneva rights is based on the idea of providing combatants with incentives to do things that help limit the bloodiness of battle. These include wearing a uniform, carrying arms openly, not targeting civilians, and so on.
Terrorists recognize none of these things. They are best understood as associations of people plotting and carrying out war crimes, whether that means sowing fear with direct and indiscriminate attacks on marketplaces, offices and airlines—or by engaging enemy troops without distinguishing uniforms, so that the surrounding civilians essentially become used as human shields. Terrorists reject both the laws of war and the laws of American civil society. To put it another way, they reject both the authority and the obligations their legal rights imply.
None of this seems to bother Mr. Holder. Since he dropped his bombshell on Friday, much commentary has focused on the possibility that KSM might be found not guilty. That, however, is unlikely: Mr. Holder is not a fool, and everyone in the Obama administration appreciates the backlash that would occur if a KSM trial results in an acquittal. Thus, the men he will send for trial will be those against whom he has the most evidence.
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.
It even gains them more protections than their associates who attack military targets. This double standard means that the perpetrators of the USS Cole bombing are sent to military tribunals while the perpetrators of 9/11 are sent to federal court.
Andrew McCarthy has a unique perspective on the move to criminal trials. As an assistant U.S. attorney in 1993, he successfully prosecuted Omar Abdel Rahman (the "blind sheikh") for the first bombing of the World Trade Center. Even though the cases were somewhat different—that plot was conceived, plotted and carried out on U.S. soil—Mr. McCarthy says the experience persuaded him that federal trials are a bad way of handling terror.
"At first, I was of the mind that a criminal prosecution would uphold all our high-falutin' rhetoric about the constitution and majesty of the law," says Mr. McCarthy. "But when you get down to the nitty gritty of a trial, you see one huge problem: The criminal justice system imposes limits on the government and gives the defendant all sorts of access to information, because we'd rather have the government lose than unfairly convict a man. You can't take that position with an enemy who is at war with you and trying to bring that government down."
By going down this line, says Mr. McCarthy, 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.
Worst of all, he says, is turning the laws of war upside down: Why fight the Marines and risk getting killed yourself or locked up in Bagram forever when you can blow up American citizens on their own streets and gain the legal protections that give you a chance to go free? With this one step, Mr. Holder is giving al Qaeda a ghastly incentive: to focus more of their attacks on American civilians on American home soil.
"It is foolish to think that al Qaeda does not train to our system and look for our vulnerabilities," says Mr. McCarthy. "Remember what Khalid Sheikh Mohammed told his captors when we got him, 'I'll see you in New York with my lawyer.' It seems he knows our weaknesses better than our government does."
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What's Eric Holder Up To?
His decision to move the trials of AL Qaeda suspects to NYC isn't popular in the area hardest hit by 9/11.
By JOHN FUND
No polls have been released on Attorney General Eric Holder's decision to hold the trials of key Al Qaeda suspects in New York City, but you can bet it won't be a popular decision in the area of the country hardest hit by 9/11.
New York City cops that I've spoken with are furious about the move, despite the fact that Commissioner Ray Kelly is acting like a good soldier and supporting Mayor Mike Bloomberg's decision to go along with the trials. Some cops note that 9/11 mastermind Khalid Sheik Mohammed asked to be brought to New York when he was first arrested. Former Mayor Rudy Giuliani wonders why and notes: "I didn't think we were in the business of granting the requests of terrorists."
Aside from the obvious security concerns, a real risk is the trial turning into a farce. "The terrorists are going to do everything they can to disrupt it and make it a circus and allow them to use it as a platform to push their ideology," says Michigan Rep. Pete Hoekstra, the ranking Republican on the House intelligence committee.
The decision to take the most high-profile defendants and put them in civilian courts appears strange and hardly necessary, since the Obama administration is already using military tribunals -- a system codified in law by Congress in 2006 - to try other terror suspects. Former federal prosecutor Andrew McCarthy, writing at National Review Online, offers a theory about Attorney General Holder's agenda, which amounts to putting U.S. counterrorism efforts on trial along with the Al Qaeda defendants.
Says Mr. McCarthy: "The continuing investigations of Bush-era counterterrorism policies coupled with the obsession to disclose classified national-defense information from that period, enable Holder to give the hard Left the 'reckoning' that he and Obama promised during the 2008 campaign. The defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and -- depending on what judge catches the case -- they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets."
http://buchanan.org/blog/is-america-at-war-3018
Is America at War?
By Patrick J. Buchanan
Are we at war — or not?
For if we are at war, why is Khalid Sheikh Mohammed headed for trial in federal court in the Southern District of New York? Why is he entitled to a presumption of innocence and all of the constitutional protections of a U.S. citizen?
Is it possible we have done an injustice to this man by keeping him locked up all these years without trial? For that is what this trial implies — that he may not be guilty.
And if we must prove beyond a reasonable doubt that KSM was complicit in mass murder, by what right do we send Predators and Special Forces to kill his al-Qaida comrades wherever we find them? For none of them has been granted a fair trial.
When the Justice Department sets up a task force to wage war on a crime organization like the Mafia or MS-13, no U.S. official has a right to shoot Mafia or gang members on sight. No one has a right to bomb their homes. No one has a right to regard the possible death of their wives and children in an attack as acceptable collateral damage.
Yet that is what we do to al-Qaida, to which KSM belongs.
We conduct those strikes in good conscience because we believe we are at war. But if we are at war, what is KSM doing in a U.S. court?
Minoru Genda, who planned the attack on Pearl Harbor, a naval base on U.S. soil, when America was at peace, and killed as many Americans as the Sept. 11 hijackers, was not brought here for trial. He was an enemy combatant under the Geneva Conventions and treated as such.
When Maj. Andre, the British spy and collaborator of Benedict Arnold, was captured, he got a military tribunal, after which he was hanged. When Gen. Andrew Jackson captured two British subjects in Spanish Florida aiding renegade Indians, Jackson had both tried and hanged on the spot.
Enemy soldiers who commit atrocities are not sent to the United States for trial. Under the Geneva Conventions, soldiers who commit atrocities are shot when caught.
When and where did Khalid Sheikh Mohammed acquire his right to a trial by a jury of his peers in a U.S. court?
When John Wilkes Booth shot Abraham Lincoln, alleged collaborators like Mary Surratt were tried before a military tribunal and hanged at Ft. McNair. When eight German saboteurs were caught in 1942 after being put ashore by U-boat, they were tried in secret before a military commission and executed, with the approval of the Supreme Court. What makes KSM special?
Is the Obama administration aware of what it is risking by not turning KSM over to a military tribunal in Guantanamo?
How does Justice handle a defense demand for a change of venue, far from lower Manhattan, where the jury pool was most deeply traumatized by Sept. 11? Would not KSM and his co-defendants, if a change of venue is denied, have a powerful argument for overturning any conviction on appeal?
Were not KSM’s Miranda rights impinged when he was not only not told he could have a lawyer on capture, but that his family would be killed and he would be water-boarded if he refused to talk?
And if all the evidence against the five defendants comes from other than their own testimony under duress, do not their lawyers have a right to know when, where, how and from whom Justice got the evidence to prosecute them? Does KSM have the right to confront all witnesses against him, even if they are al-Qaida turncoats or U.S. spies still transmitting information to U.S. intelligence?
There have been reports that in the trials of those convicted in the first World Trade Center bombing, sources and methods were compromised, weakening our security for the second attack on Sept. 11.
If the trial is held in lower Manhattan, how much security will be needed to protect against a car bomber who wants the world to see a mighty blow struck against the Great Satan? And if, as some suggest, the trial should be held on Governor’s Island, would that not make the United States look like a nation under siege?
What do we do if the case against KSM is thrown out because the government refuses to reveal sources or methods, or if he gets a hung jury, or is acquitted, or has his conviction overturned?
In America, trials often become games, where the prosecution, though it has truth on its side, loses because it inadvertently breaks one of the rules.
The Obamaites had best pray that does not happen, for they may be betting his presidency on the outcome of the game about to begin.
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