Friday, November 20, 2009

Christmas Comes Early for KSM and al Qaeda

I've been reading a lot of opinion pieces about the decision by Attorney General Eric Holder to conduct civilian trials for Khalid Sheikh Mohammed (KSM) and several other accused 9/11 terrorists.  I think this was a bad policy decision for all kinds of reasons.  I don't have that much new to add to the discussion, but I'd like to summarize some of the better arguments against his decision.

The simplest objection is that we have arbitrarily opted to provide these guys with the rights and guarantees of the U.S. Constitution when they are not entitled to them.  These men are not U.S. citizens.  They were captured overseas, and their alleged crimes were acts of war, not simply routine criminal acts.  We had no reason when we captured them to think we had to be concerned about reading them their rights, or protecting the chain of evidence.  Now these will become issues.  If we had no other venue in which to try them, then civilian courts might be appropriate.  But we do have an alternative in the military tribunal.  And where is the logic of Mr Holder's decision to try these five accused terrorists in civilian courts, while all the rest, presumably, will be tried in military tribunals?  Clearly this implies an acceptance of the tribunal as an appropriate venue for a fair trial. The tribunals offer the opportunity for justice without the obvious flaws of our convoluted constitutional legal system.  As Americans, we like to believe we do everything better than the rest of the world, but I believe we could make a lot of improvements in the functioning of our courts.  We are so meticulous in preserving what decades of liberal jurists have determined to be the rights of the accused, that we have a legal system that frequently releases criminals who are obviously guilty by all rational measures. One procedural misstep, and the perpetrator walks.  We pat ourselves on the back and say we'd rather let ten guilty men go free than to convict one innocent man, but that's nonsense.  Victims have rights too.  To allow a murderer to go free because he wasn't Mirandized prior to his confession makes no sense to anyone but a pinhead liberal Supreme Court Justice.  American justice is NOT the best in the world.  To try these men with all the Constitutional guarantees of citizens doesn't show the world how superior our system is.  It risks justice being frustrated and America being humiliated in the bargain.  And as far as showing the world what we're made of, I'd rather not bother.  There will always be critics of America.  Their barking concerns me not at all.

And what kind of legal sideshow will we be inviting?  If you thought the OJ trial was a circus, you ain't seen nothin' yet.  We will enable these men to conduct open lawfare upon us:  Using our system to make us look foolish.  And make no mistake, this is a propaganda war as much as any other kind of war.  If you succeed in making your adversary look foolish, that is a major victory indeed.  We will be engulfed in minutiae.  How many months did the Paris Peace Talks of the Vietnam era spend to decide the shape of the negotiating table?  I can only imagine what kind silliness we will be forced to endure.  How will an untainted jury be selected in the middle of Manhattan?  Motions for changes of venue are all but certain.  We need to anticipate request after request for classified information on sources and methods of intelligence gathering.  The enemy will reap enormous intelligence benefits no matter how careful we try to be.  I wouldn't be surprised to see regular recesses so the accused can fulfill their obligation to pray several times a day.  Surely we would not want to appear insensitive to the rest of the Muslim world by denying such a fundamental (no pun intended) request.  And consider this:  The significance of a terror act is rarely the act itself.  The death and destruction are horrible enough.  But the goal of terrorism is to terrorize:  To shock, frighten and demoralize your enemy while enhancing the image and morale of your own side.  By providing these men with a platform before the world, we will allow them to perpetrate another act of terrorism, only this one will last for years.  For this justice will not be swift.  This trial will not be concluded in a few weeks or a few months.  This will go on for years.  And how will America and the rest of the world react if these men are acquitted or we end up with a hung jury?  Or what if they are convicted but a squeemish jury is reluctant to vote for the death penalty.  How will our justice system look then?  They may admire us in Europe, but think of the message we'll be sending to Al Qaeda.

Then there is the physical risk factor.  New York is a terrorist target as it is.  This will only make the problem worse.  Are we so arrogant that we can't admit we are concerned about the terrorists' ability to stage another attack in New York City?  Of course they can do it.  To defeat them, we have to be successful every time.  To defeat us, they only have to be successful once.  In asymmetric warfare such as this, the willingness to die for your cause is a huge advantage held by the terrorists.  The danger is real, and we invite it at our peril.  What will we say to the victims and their families if another attack succeeds in New York City?  Guantanamo sounds like a much better venue for this trial. 

I particularly enjoyed this article by Pat Buchanan.  He asks an interesting question.  Are we at war or not?  Why do we hunt KSM's associates in Pakistan and kill them with Predator drones, yet KSM himself gets a civilian trial in the middle of Manhattan?  Why do we tolerate the occasional deaths of the families of these far away terrorists as acceptable collateral damage, yet we offer KSM the rights and protections of the U.S. Constitution?  When we prosecute mafia bosses, we don't claim the right to kill their colleagues in the streets when we find them or threaten the lives of their wives and children.  The difference is that we are at war with these terrorists.  And warfare is not the same as fighting crime.  If Attorney General Holder can't or won't grasp the distinction here, is it because he doesn't see this as a war at all?  Or is there another agenda?

I'm not a conspiracy theorist.  I like to think that I make rational assessments based on hard facts.  I'm a voracious reader; a news junkie.  I  do my homework.  I don't believe Attorney General Holder is an ignorant man.  I'm sure he is aware of all the pitfalls of the decision he has made, as I've outlined above.  So why has he made this decision?  Does he want to showcase to the world the superiority of the American sense of justice?  Does he think this is the way to do it?  Does he think the benefits justify the risks?  Maybe so, but I have some doubts.  Andy McCarthy suggests another possibility in this blogpost at National Review Online.  He suspects that the real purpose of this decision is to put the United States on trial.  More specifically, to put the Bush administration on trial.  Khalid Sheikh Mohammed has pled guilty before a military court.  He has no practical defense against the charges leveled against him.  His only alternative, and one he probably can't believe we are giving him the opportunity to choose, is to put us on trial.  We will hear endless accounts of all the evil the United States has perpetrated in the Muslim world.  We will be confronted with the unpleasant reality of his "harsh interrogation".  He was, after all, waterboarded 183 times.  We will hear about secret prisons, renditions, and covert operations targeting Muslims.  All the policies that the left has railed against for years will be dredged up anew in this show trial.  These policies, which arguably helped keep us safe over the past eight years, have been anathema to the likes of the ACLU and the opponents of the previous administration.  This will be one last opportunity for the sufferers of Bush Derangement Syndrome to take a club to our former president. I wonder if this is the real reason we are embracing a public trial in a civilian court.  Rather than regretting the public disclosure of the dark side of counter-terrorism policy, perhaps that is Mr. Holder's actual goal.  Isn't he the one who, just a few months ago, reopened the investigations into the activities of CIA personnel during the Bush administration, putting at risk the brave men and women who have struggled to keep us safe since 9/11?  This trial will provide the Obama administration and their left leaning allies the chance to put the entire Bush/Cheney strategy of homeland protection in the dock.  And they will deny the blame for any of the consequences.  They will, in true passive aggressive fashion, deny any responsibility for what they are about to unleash on this country.  "We are only interested in justice", they'll claim.  And if they can score points on their political adversaries and strengthen their position with their own base in the process, well, I'm sure that is not their intention.