Khalid Sheikh Mohammed is coming to the Big Apple for trial, a move that opens up intelligence secrets to arch-enemy al Qaeda and tells American troops the war on terror is shifting back to a law enforcement exercise.
President Obama’s decision to bring the 9-11 attack mastermind to a federal court house in New York, within blocks of the sacred ground that once braced the World Trade Center, also unleashes defense lawyers to put the United States on trial in the world’s attention-getting media capital.
Instead of a more secretive military commission, as planned by President Bush for al Qaeda war criminals, the bearded, thobe-wearing Mohammed will sit in open court as civilian defense attorneys pound the government with motions to release sensitive material, suppress evidence and dismiss murder charges.
The people who worked to put the commission system in place under Defense Secretary Donald Rumsfeld told HUMAN EVENTS the president made a strategic mistake.
"I was disappointed in that decision simply because I think the 9-11 conspirators were clearly guilty of violations of the law of war," said retired Air Force Brig. Gen. Tom Hemingway, the military lawyer who advised the convening authority officer who oversaw the commission system.
"I think it’s appropriate to try violations of the law of war in military commissions regardless of who the victims may have been," Hemingway told HUMAN EVENTS. "Having said that, where to try them is a policy decision. I don’t think there is anything illegal in the president’s decision to do that."
Of Mohammed, Hemingway said, "He is an individual who is accused of being a war criminal, as opposed to a domestic criminal. I think what we’re doing here is treating him like a domestic criminal as opposed to a war criminal."
The shift in venue could not be more stark. New York City is a media magnet, while the isolated Guantanamo base would likely attract relatively fewer TV reporters. There is only one media travel route to Guantanamo, and the Pentagon owns the airline.
In a military commission, the confessed mass-murderer would be tried by U.S. officers as judge and jury. They would be expected to put strict limits on the public release of classified information.
The commission would have more leeway in allowing prosecution evidence, the same evidence a civilian federal judge might suppress. Mohammed was water-boarded (simulated drowning) to get him to talk. It is presumed CIA interrogators did not read him his Miranda rights, as is required by law enforcement investigators for civilian trial.
"There’s a litigation risk of course," Hemingway said. "I’m assuming they have contemplated those risks and think they are willing to take."
Mohammed’s defense team will now have a range of pre-trial legal issues to argue. Right off the bat, they may ask for dismissal based on a lack of speedy trial. The al Qaeda leader was captured six years ago.
"I expect there to be a range of motions from innovative defense counsel to get the charges dismissed and vigorously represent the client," retired Maj. Gen. Michael Nardotti, the Army’s top lawyer in the 1990s, told HUMAN EVENTS. "I think speedy trial is an issue. In military commissions, the normal rules of search and seizure and advising a combatant of his rights would be specifically excluded. They are not in a federal court."
The prosecution’s ace may turn out to be Mohammed himself. He proudly confessed to the horrible crime in open court at Guantanamo.
"I think the statement would certainly be admissible," Hemingway said.
Larry Di Rita, a close adviser to secretary Rumsfeld when the commissions system was set up, told HUMAN EVENTS, "The use of commissions to render just decisions in wartime has a rich history in America’s legal traditions. The use of the Article 3 courts does not. To me, that speaks volumes about the risks to this decision."
Article 3 refers to the section in the Constitution that established the Supreme Court and authorized Congress to set up the federal court system.
Obama is also taking heat from members of his own party.
Sen. Jim Webb, Virginia Democrat, said a civilian court trial will be costly and chaotic.
"It will be disruptive, costly, and potentially counterproductive to try them as criminals in our civilian courts," he said. “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."
“I have consistently argued that military commissions, with the additional procedural rules added by Congress and enacted by President Obama, are the most appropriate venue for trying individuals adjudged to be enemy combatants.”
Sen. John McCain, Arizona Republican and long a hawk on the war on terror, also said the president was making a mistake.
“Today’s decision sends a mixed message about America’s resolve in the fight against terrorism,” he said. “We are at war, and we must bring terrorists to justice in a manner consistent with the horrific acts of war they have committed.”
A criminal defense attorney said things could go terribly wrong in Manhattan.
"The danger is the potential that sources and methods of intelligence collection might be compromised in court," said Charles Gittins, a prominent civilian defense lawyer who has represented clients in a number of high-profile courts martial.
Gittins told HUMAN EVENTS there is a law, the Classified Information Procedure Act, prosecutors can cite to keep highly classified information away from the public — and our enemies. But the process increases the possibility such intelligence crown jewels will be leaked to the media.
"I would expect that there would be significant motions regarding the water boarding of KSM in order to obtain a confession," Gittins said. "I am not sure how you can conduct such a motion in secret outside the public view and even if you could, how that information would not eventually become public through leaks. ‘"
Gittins, a former Marine Corps aviator, said holding Mohammed in New York will enhance the city as a terror target. "Terrorists would use his place of detention as a target to ‘make a statement’ and strike at the U.s. and its justice system."
Then there is the military effect of moving Mohammed from the terrorists-designed prison at Guantanamo, to a jail cell where he will be among common criminals.
"I find it incomprehensible that we would turn the Global War on Terror [Bush’s official designation] back into a law enforcement effort when we had almost 50 U.S. troops killed last month in Afghanistan," said retired Air Force Lt. Gen. Tom McInerney, a fighter pilot in Vietnam. "This sends a signal to radical Islamists that the Obama administration does not have the stomach for defeating them. It will embolden them and more American lives will be lost by this mockery of justice to those killed on 9/11. It will embolden Taliban and al Qaeda to use more aggressive suicide attacks against US troops in order to discourage American people in the war against radical Islam. We are at war, Mr. President."
If a judge throws out the charges on a technicality, or a jury acquits Mohammed, the master terrorist, in theory, could catch a cab to John F. Kennedy airport and fly to whatever country would take him. Or maybe not.
Attorney General Eric Holder was vague at a Friday press conference when asked what happens if Mohammed beats the rap. The Bush administration had no intention of ever freeing Mohammed even if a military commission acquitted him.
"The prior administration’s position was that we can hold detainees for as long as is necessary in a time of conflict, regardless of the outcome of the proceeding," Nardotti said. "So it will be interesting to see what the position is of the current administration. If it’s dismissed at an earlier stage, is there going to be the option of then trying to take him back before the military commissions because jeopardy does not automatically attach?"