Friday, November 13, 2009

We Can Only Hope This Doesn't Turn Into A Circus

It was announced that Khalid Sheikh Mohammed and four other al Qaeda terrorists that have thus far been detained at Guantanamo Bay will be tried in court in New York, but several other terrorists will be tried in a military commission.
Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four other men accused in the plot will be prosecuted in federal court in New York City, a federal law enforcement official said early on Friday.

But Obama the administration will prosecute Abd al-Rahim al-Nashiri — the detainee accused of planning the 2000 bombing of the U.S.S. Cole in Yemen — and several other detainees before a military commission, the official said.

The decisions to give civilian prosecutors detainees accused of the 2001 terrorist attacks and keep the case of the Cole attack within the military system are expected to be announced at the Department of Justice later on Friday by Attorney General Eric H. Holder Jr. The official spoke on condition of anonymity because that news conference has not yet taken place.

The decision about how to try several of the most high-profile detainees at Guantánamo marks a milestone in the administration’s efforts to close the facility, a policy that President Obama announced shortly after taking office but which has proven more difficult than his team anticipated.

Mr. Obama, asked about the decision during a news conference on his week-long trip to Asia, declined to comment directly, but said that Mr. Mohammed would face justice.

“I’m absolutely convinced that Khalid Shaikh Mohammed will be subject to the most exacting demands of justice,” Mr. Obama said. “The American people insist on it and my administration insists on it.”

No detainee is being moved right away. Under a law Congress enacted earlier this year, lawmakers must be given 45 days advance notice before the executive branch moves a Guantánamo detainee onto United States soil.

The decisions about how to prosecute Mr. Mohammed and Mr. Nashiri have been particularly difficult because their defense lawyers are expected to argue that they were illegally tortured by the Central Intelligence Agency during their confinement, tainting any evidence gathered from their interrogations.
I find the reason for the split to be thoroughly unpersuasive. al Qaeda struck at military and civilian targets on 9/11, and the fourth plane that crashed in the Pennsylvania countryside was meant to hit the heart of our democracy - striking at the White House or Capitol building. The terror attacks were not mere criminal acts, but acts of war - jihad.

By giving the terrorists access to civil courts, they are going down a path in which the terrorists will be capable of commandeering the proceedings and turn them into a circus on which they can spout off on how they were tortured and other wrongs heaped upon them, all while ignoring the heinousness of the mass murder they and their minions committed in the name of Islam.

The Obama Administration froze the military tribunals in the case of Ali Abd al-Aziz Ali, Waleed bin Attash, Ramzi Binalshibh, and Mustafa Ahmad al-Hawsawi and it isn't clear what charges they'd face in a civilian court.

It appears to be an arbitrary decision to try some of the terrorists in civilian courts while others would go through military tribunals. Now, some will claim that a civilian court in New York should have jurisdiction on those who attacked targets in New York on 9/11, but they just as surely could have been conducted by the military tribunals without the fanfare and circus atmosphere that such a trial is bound to create.

Again, this change of venue by the Obama Administration is an attempt to break with the policy of the Bush Admininstration and to shutter the detention facility at Guantanamo Bay, but it is not based on sound principles of law or of the laws of war that these terrorists violated repeatedly in carrying out their deadly attacks on civilian and military targets around the globe.

It is a feel good proposition that does not address the fact that we'd still be detaining these terrorists indefinitely in some fashion, and while claiming shuttering Guantanamo Bay is a good thing, the Obama Administration would merely be shuffling these terrorists to other facilities around the US.

So why did the Administration single out some for civilian courts while others were left in the military tribunal? It could be that the Administration put those cases that are most likely to result in guilty charges (the slam dunk cases) were put in civilian court, while the ones that were on shaky ground were left to the military tribunals. I think that's a poor rationale, but the Administration is going to have to provide a solid argument in favor of this bifurcation or else find itself attacked on procedural grounds by detainees handled in either fashion. This opens up a can of worms for the Administration that is needless and may result in further delays in trials for the detainees.

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