news-record.com

BLOGS

Off the Record

Terrorists on trial

Virginia Democratic Sen. Jim Webb on the Obama administration's decision to try Khaild Sheik Mohammed in federal court in New York:

“I have never disputed the constitutional authority of the President to convene Article III courts in cases of international terrorism. However, I remain very concerned about the wisdom of doing so. Those who have committed acts of international terrorism are enemy combatants, just as certainly as the Japanese pilots who killed thousands of Americans at Pearl Harbor. It will be disruptive, costly, and potentially counterproductive to try them as criminals in our civilian courts.

“The precedent set by this decision deserves careful scrutiny as we consider proper venues for trying those now held at Guantanamo who were apprehended outside of this country for acts that occurred outside of the country. And we must be especially careful with any decisions to bring onto American soil any of those prisoners who remain a threat to our country but whose cases have been adjudged as inappropriate for trial at all. They do not belong in our country, they do not belong in our courts, and they do not belong in our prisons."

Sen. Richard Burr, R-NC, called the decision shocking. There has been no statement from Sen. Kay Hagan, D-NC.

It's been obvious since 2001 that any mechanism for holding and meting out justice to captured terrorists is imperfect.

They're neither criminal suspects exactly nor prisoners of war exactly. The Bush administration never really figured out the problem, and the Obama administration hasn't so far, either.

Now it's decided that Mohammed and some others should have civilian trials in federal court. Yet it admits some others will remain held without charge indefinitely and most likely never will be put on trial.

Meanwhile, it's proceeding -- slowly -- on the president's promise to close the Guantanamo prison and now is investigating transferring individuals held there to a facility in Illinois -- where their status will remain exactly the same but, somehow, the symbolism will be different and perhaps more pleasing to world opinion.

The Mohammed trial could turn into quite a show. The big complication is presented by the interrogation methods used to extract information from him after his capture in Pakistan in 2003. He was waterboarded 183 times, a practice the current administration has branded as torture. Mohammed's defense attorneys can use that as grounds to have the defendant's confessions thrown out.

It also puts Bush administration policies on trial to some extent, which may be one goal of the Obama administration. Obama can tell the world, "Look how much better we are now. Instead of torturing terrorists, we're willing to give them a free and fair trial (or at least some of them)."

Hopefully, if prosecutors show the video of Mohammed personally cutting off the head of Wall Street Journal reporter Daniel Pearl, world opinion will say, "Waterboarding? This animal should have been thrown into a tank of tiger sharks."

Of course, there are two really bad scenarios here. One is that al-Qaida carries out a new terrorist attack in New York to coincide with Mohammed's trial. The other is that he gets off on some technicality.

If not for the valuable information intelligence officials said was extracted from Mohammed, it really would have been better if he'd never left Pakistan alive. A trial is more than he deserves. I share Sen. Webb's concern about the wisdom of this move.

One more thought: Who would ever want to serve on a jury at the trial of a top al-Qaida terrorist? You might have to spend the rest of your life in hiding.

Permalink

Posted by Doug Clark on Monday, November 16, 2009 at 8:38 am

This article has been closed to new comments. Comments are generally closed after 14 days. However, comments may be closed earlier at the discretion of the News & Record.

Inappropriate content? Please report abuse.

Advertisement | Advertise with Us

Andrew Brod

November 16, 2009 - 12:56 pm EST

I think you mean Daniel Pearl.

Doug

November 16, 2009 - 1:51 pm EST

Thanks. I did, and I have corrected the error.

brian444

November 16, 2009 - 1:05 pm EST

One reason this is a bad idea is that the trial is rigged. There's no way we're letting him go. No way. He'll be right when he complains that it's a circus trial.

Doug

November 16, 2009 - 1:54 pm EST

If you're right, and you may be, what do we gain by the exercise? It will further drive hatred of the U.S. among radical Islamists if we conduct an obviously rigged trial.

brian444

November 16, 2009 - 3:35 pm EST

We don't gain much. To clarify, I don't mean that the trial itself will be rigged, although I expect that discovery rules will be, uh, modified. But on the off chance of an acquittal, Obama could never let him go free. He'd discover what Bush discovered: that he can be held as an enemy combatant.

And there are many other reasons why this is a terrible idea.

Connie Mack Jr

November 16, 2009 - 1:27 pm EST

One more thought: Who would ever want to serve on a jury at the trial of a top al-Qaida terrorist? You might have to spend the rest of your life in hiding.* Doug

I would love to serve on that Jury, Do you really believe that the top al-Qaida terrorist who was waterboard 186 times was the dude that bought down western cilivization?

No doubt Bush and Cheney would be in hiding if it was decided that 9/11 was a inside job.......

lexalexander

November 16, 2009 - 7:24 pm EST

Inasmuch as we never declared war against KSM personally, al-Qaeda as a group or any political entity that could be described credibly as backing al-Qaeda, he's a lot closer to a criminal defendant than a war criminal. Thus, with all due respect to Sen. Webb and Sen. Burr -- which, in regards to this issue, isn't all that much -- trial in an Article III court is the appropriate way to proceed, and the Southern District of New York is the appropriate place inasmuch as that's where the crime -- mass murder -- was committed.

Several objections have been raised to this approach, but none have any credibility. The defendants aren't citizens? They're still entitled to constitutional protection. (And even if they weren't, extending those protections to them would send a powerful signal to the world about our faith in the strength of our system. Conversely, deviating from the due process that otherwise would apply sends the signal that we're terrified and about to soil our drawers.)

KSM et al. are bad, evil people? So were Jeffrey Dahmer and Ted Bundy, to name just two, and somehow civilian law enforcement and Article III courts (actually, state courts, if memory serves) handled them just fine.

A public trial in a civilian court will give KSM a platform? Yeah, it will -- in all likelihood, a platform to show just what a deluded, grandiose putz he is. He's convinced that everything America does is intended to destroy Islam? As pundit Spencer Ackerman has pointed out, before 9/11 an overwhelming majority of Americans neither knew nor cared anything about Islam.

This approach could put the Bush administration's behavior on trial? If only. Bush et al. should have been indicted on war-crimes charges long ago; the evidence against them, including Bush's public confession to ABC News that he ordered waterboarding, is overwhelming.

KSM et al. might get off scot-free because evidence them is tainted because it was obtained through torture? KSM has been under indictment since five years before 9/11. There's a wealth of untainted evidence against him. His chances of walking are zero.

Bring him into the U.S. District Court in lower Manhattan. Let him have his moment on the world's stage if that's what it takes and what he's legally entitled to. Then convict him, throw him into the bottom of a SuperMax and let the world never hear from him again. That way, he can't even be called a martyr (even though what he did certainly merits execution).

A civilian-court trial would raise security issues? Well, gee, that's horrible; the FBI, the NYPD and the U.S. Marshals' Service have NEVER had to deal with those before. Ever.

Some calls are tough. This isn't one of them.

Doug

November 17, 2009 - 10:01 am EST

Lex, I respect your arguments. But if this wasn't a tough call, it would have been made sooner and the Obama administration would make the same call for all the detainees at Guantanamo.

lexalexander

November 17, 2009 - 9:39 pm EST

Doug, there's zero correlation between the toughness of a call and the alacrity with which Obama makes it. Prosecuting war criminals is not a tough call: The definition of war crimes is clear, the evidence that U.S. officials have committed them lies not just in secret government records but in New York Times best-selling books, the legal mandate that credible allegations be investigated is unambiguous, the U.S. is clearly a party to the relevant international law and the author of relevant domestic statutes and George W. Bush, for one, admitted last year in an interview with ABC News that he directly ordered waterboarding.

But notice how neither Obama nor Holder can seem to get around to pulling the trigger.

Doug

November 18, 2009 - 9:17 am EST

Maybe Obama and Holder want to appear more interested in prosecuting terrorists than in prosecuting George W. Bush.

I'd like to know the source of your inside information that this was an easy call for the Obama administration.

lexalexander

November 18, 2009 - 11:19 pm EST

I'm not saying it was. I'm saying it should have been.

Doug

November 19, 2009 - 9:30 am EST

Well, maybe you were right after all seeing as the president has already decided Mohammed is going to be executed.

Nothing like a federal trial where the president has predetermined the outcome. Trouble is, isn't this supposed to demonstrate to the world how fair our system of justice is?

lexalexander

November 20, 2009 - 10:39 pm EST

Yeah, that was a dumb thing to say. Saying he *wants* the death sentence in the event of a conviction is one thing. But he went beyond that, it appears. Not bright.

lexalexander

November 16, 2009 - 7:43 pm EST

Also, you ask who would want to serve on the jury of an al-Qaeda defendant. I think if you walked to Ground Zero wtih a bullhorn and posed that question in public, you'd likely be trampled to death by volunteers.

Someone also suggested elsewhere that having the trial in New York might make New York more of a target. Honey, New York will ALWAYS be a target. al-Qaeda will ALWAYS want to do something in New York. And I'd be stunned if al-Qaeda were the only ones who did. I bet some of our homegrowns wouldn't mind taking down a piece of Liberal Sin City, too.

Andrew Clark

November 17, 2009 - 7:55 am EST

There never was any evidence offered that the torture of KSM yielded any valuable intelligence. But beyond that, I absolutely believe there should be a trial because I believe in our system. I think treating his crimes differently because he is al Qaeda is giving them some kind of special status and power they do not deserve. We're going to say al Qaeda is too powerful or special to be dealt with by the American system? They're something we can't handle? It's like doing PR for Osama bin Ladin. And denying him a trial because we don't like the guy would be even worse! That is the beginning of the road of dehumanization and rationalization that leads to terrorism in the first place.

brian444

November 17, 2009 - 1:43 pm EST

From the Washington Post:

http://www.washingtonpost.com/wp-dyn/content/article/2009/08/28/AR200908...

How a Detainee Became An Asset
Sept. 11 Plotter Cooperated After Waterboarding

By Peter Finn, Joby Warrick and Julie Tate
Washington Post Staff Writers
Saturday, August 29, 2009

After enduring the CIA's harshest interrogation methods and spending more than a year in the agency's secret prisons, Khalid Sheik Mohammed stood before U.S. intelligence officers in a makeshift lecture hall, leading what they called "terrorist tutorials."

. . .

These scenes provide previously unpublicized details about the transformation of the man known to U.S. officials as KSM from an avowed and truculent enemy of the United States into what the CIA called its "preeminent source" on al-Qaeda. This reversal occurred after Mohammed was subjected to simulated drowning and prolonged sleep deprivation, among other harsh interrogation techniques.