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.