Wednesday, November 18, 2009

Real Justice is in a Military Court, KSM Does Not Belong In NYC

Last week, Attorney General Eric Holder announced that 9/11 terrorist mastermind Khalid Sheikh Mohammed (“KSM”) will stand trial in New York federal court. This is an egregious mistake on the part of the Obama administration.

The trial will surely become a show – a mere opportunity for KSM to have a platform to spout his anti-American gospel. KSM, who has admitted to being the 9/11 mastermind, has long wanted the opportunity to preach his hatred. A trial will not be about finding justice – everyone from Obama down to the average New Yorker knows KSM is guilty. Instead, it will become an opportunity to put the U.S. on trial and attack the legacy of the war on terrorism.

Additionally, a civilian trial has different standards of admissibility of evidence. This will require the government to introduce classified information in order to successfully convict KSM. Likewise due to higher standards, certain evidence will be excluded. Any confessions or information extracted through ‘coercion’ will be inadmissible. The change in admissible evidence will only put the U.S. at risk, by exposing sensitive information and making a clear-cut case open to legal technicalities and loopholes. Just imagine what will happen if some wily attorney manages to free KSM (who, by the way, has asked for death).

However, more important than either of these issues is the general, theoretical concepts that are at stake here. By trying KSM in a civilian court, the government is explicitly stating that acts of terrorism – the brutal murder of U.S. civilians – are not acts of war, but criminal acts. This is not only untrue, but creates dangerous precedents and incentives.

First and foremost, military trials, despite critics’ claims, are not above the law. They are a long-present instrument of the U.S. legal system and have justly and successfully been used before. Trying an individual in either system is not an issue of following law or not following law, but a matter of what type of crime and law needs to be addressed. Holder does not disagree with this concept as he has simultaneously sent a number of other Gitmo detainees to military trials.

The problem is that the Justice Department does not seem to believe that KSM is an enemy combatant, but rather a common criminal. According to Politico, Holder admitted that KSM could have been tried in a military court, but felt justice would be better attained in a federal court. In his mind, in order to be an enemy combatant one must attack a military target. This is a gross distortion of reality. The 9/11 terrorists were members of an enemy army. Just because they did not wear uniforms or have a physical nation to call home, does not negate the fact that this was an act of war.

By failing to correctly address this, Holder has created perverse incentives for the enemies of the United States. Those who wish to bring harm to the U.S. will now have greater incentives to avoid the rules of war (such as the Geneva Conventions). After all, what right-minded (if there is such a thing) Islamist terrorist would chose to fight Marines in Afghanistan and then face military laws, rather than bring the battle to American civilians and civilian courts?  William McGurn stated in the Wall Street Journal that Holder’s decision creates a world where, “If you kill civilians on American soil you will have greater protections than if you attack our military overseas.”

These perverse incentives create greater risk for American civilians. The current administration unfortunately seems more concerned with appeasing a misguided notion of fairness, rather than protecting the American people. Ultimately, they will reward a terrorist movement by providing a way for our enemies to wage war without suffering the appropriate penalties. The real path to justice is through the military court system – a system designed to handle war criminals. By avoiding this fact, Holder is flying in the face of justice and endangering our success in the war on terror.


  1. Josh--

    Excellent post. I thought you'd settle for some of the more hysterical arguments out there against processing these alleged terrorists (I know, KSM is not really alleged, but I'm speaking generally). I agree that since 9/11 was an act of war, military courts are suitable, so long as these people are eventually processed and circulated out of our overseas dungeons.

    One bone to pick: you mention the spilling of "sensitive information," but we all know what that means. In a court of a law, the methods used to coerce some of KSM's statements, as we well know, were gained via use of torture. In a civilian court, his prosecution would be largely invalid, not to mention humiliating and shameful for the U.S. reputation and image as the world's foremost upholder of human rights. Such is the terrible legacy left to us by the Bush-Cheney years; precedent, as signed by such men as Ronald Reagan, was deeply violated, perhaps irrevocably.

    And no, I don't think a "wily attorney" will get KSM off, despite the legal loopholes that I agree exist. Put simply, I don't see how an American judge and jury can possibly hope to be impartial, and I think that regardless of the evidence presented, he's a dead man walking into that courtroom — particularly with the proceedings happening in NYC.


  2. Thanks Karl. I'm glad we can agree on this to some degree. I'm not too concerned about your issue of torture. First of all, as I have argued before ( I think that torture, and particularly less harmful methods of coercion, are morally called for in certain circumstances. That being said in our current legal system information obtained through torture is largely inadmissable in civilian court. However, I am positive that Holder has information, not obtained through torture, that is sufficient to convict KSM. I may not agree with his decision, but I don't think he is stupid enough to put KSM in a civilian court, without admissible evidence.

    Second, I agree with you that I don't believe a wily attorney will get of KSM. However, the possibility, however slight, is scary. I am currently involved in a jury trial and the power that rests in these largely unknowing individuals and the games that are played to sway them is terrifying in light of the gravity of the KSM situation.

    I do think your point though that it would be difficult to find an impartial jury and that KSM is already dead-man walking (although he still might get life) is poignant. The irony in this is that Holder, Obama, and the proponents of putting KSM in civilian court is that it is supposedly more just and fair. In the same breath though everyone admits and some even hope for KSM's inevitable conviction. (I've seen an anti-death penalty congresswoman say something to the effect of "I'm against the death penalty, but here it is the law and it should be fufilled") This is a really outrageous hypocrisy. Holder is speaking in the name of truth and justice, but setting up his own kangaroo court. I find that despicable, especially when they are avoiding tackling the really important issues that may arise from his decision.

    This is a trend (as I show in my waterboarding post) that is rampant in the Obama adminstration (and certainly present in past adminstrations) and something I don't respect. I don't like catering to the simplicty of the masses for the sake of maintaining electoral power, instead of addressing what is philosophical and actually correct.


  3. I enjoyed reading your post. I think that the decision to try KSM in civilian courts makes America look weak, and I am sure that extremists sell it as such to the men and women they recruit to do their dirty work. Instead of dealing with terrorists swiftly and with authority we choose to appear uncertain in our right to be a nation of free people.

  4. Shawn~

    The whole situation unfortunately plays in with the administrations 'end' to the war on terror. They can't be honest by calling it what it is and so have to alter reality to fit the concept that it isn't a war. Turning the war against terror into a criminal fight is the wrong path.

    Thanks for reading!



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