Khalid Sheik Muhammed and Eric Holder have one thing in common - they both want a show trial. Hopefully, the judge will not.
What does KSM want? In 2007 when he confessed to masterminding the 9/11 attacks and many other atrocities, he boasted of a plan to hijack another plane, and make a speech at an American airport after killing all of the male passengers. Holder has given him his stage, and as a bonus the opportunity to expose American intelligence sources and cause a second round of pain to the families of the victims.
What does Holder want? There are two lines of thought:
- The benign one - claimed by Holder and his defenders on the Left: Demonstrate the fairness and robustness of our judicial system. But this is belied by the fact that other Gitmo prisoners will be tried by military tribunals or held indefinitely, that Obama has assured the public that KSM will be convicted and executed, and that Holder has said that under any circumstance KSM will not be released. Justice?
- And the cynical one: Demonstrate for the world that the Obama administration is purging the evil ways of the Bush administration in terms of torture and illegal detention. Holder's controversial decision in August to reopen an investigation of CIA interrogators, the April release of a Justice Department memo critical of "enhanced interrogation techniques", and Holder's history - which includes a recommendation that President Clinton pardon unrepentant Puerto Rican terrorists - provide a clear picture. His claim that he had not discussed the decision directly with President Obama is either incredible or alarming. (With the resignation of Obama's chief legal advisor on the delinquent closing of Gitmo, it is possible that the president is keeping a "deniability" distance.)
The reality of what may happen:
- In the trial itself - In a criminal trial the defendant is entitled to a presumption of innocence (have Obama and Holder poisoned the jury pool?; can there be an impartial jury in New York?), the right to cross-examine witnesses (and expose them), to have access to all of the evidence, and to make extensive opening and closing statements. One can never be sure of 12 jurors - see OJ's "trial of the century". Judges can go off the rails - see the Scottish judge who released the convicted Lockerbie bomber. And in the end, the legal truism that "hard cases make bad law" reflects the risk that stretching criminal law to fit a preordained military outcome could set bad precedents.
- Beyond the trial - Senator Lindsay Graham points out that those capturing terrorists will need to read the prisoners their Miranda rights (which were not applied in this case), thus allowing lawyers and limiting interrogation benefits. It is also likely that some sources of intelligence will be exposed in the trial, and the incentive for informants to work with us will be severely compromised. (If Holder really did not consult with Obama, he may not be concerned about these things.)
And what will we do with the other 200 misfits?
The Geneva Conventions are clear that to be a lawful combatant (and thus be protected by the Conventions) a person must (a) be commanded by a person responsible for his subordinates; (b) have a fixed distinctive sign (such as a uniform) recognizable at a distance; (c) carry arms openly; and (d) conduct their operations in accordance with the laws and customs of war. Absent that, they are entitled to humane treatment, but are subject to trial as war criminals or indefinite detention.
Many have been released to other countries, with the potential that as many as 60 (mostly Yemeni's) have returned to the battlefield.
In 2006 Congress revised the laws covering military tribunals to meet legal and ideological objections to the Bush approach, and Holder has assigned the bombers of the USS Cole to that path.
Obama and Holder have not signaled their intent with the rest of the 200, except for Holder's explanation that the KSM group was in a civilian court because most of their victims were civilians. (If a terrorist wants more rights, kill civilians.) There may be a politically-motivated pragmatic approach that the forum will be chosen to prevent any prisoners from actually being released, with a handful held indefinitely. But law professor Obama does not distinguish between the purpose of criminal law (punish wrongdoers) and the purposes of military incarceration (prevent future damage and gather intelligence.)
In sum, with trials and appeals this will be a long and ugly process, designed by both KSM and the Obama administration to show the world the dark side of America. Two thirds of the public disagree with the decision - even before the $75 million price tag was disclosed. 2012 cannot come soon enough.
This week's You Tube is a snippet of Senate testimony, in which Lindsay Graham demonstrates the inadequacy of Eric Holder's thinking.
bill bowen - 11/27/2009