Attorney General Eric Holder’s decision to try Khalid Sheik Mohammed in a federal civilian court is inconsistent, indefensible and inexplicable.
It is inconsistent with Holder’s own decision to try Abd al-Rahim al-Nashiri in a military commission. It is indefensible in light of the unmistakable intentions of the Framers of the Constitution. It is inexplicable by any prudential analysis of the national interest in dealing with an enemy like al-Qaida.
Some strange ideological impulse — rather than common sense and respect for the rule of law — is driving the Obama administration to give special treatment to the perpetrator of one of the greatest war crimes ever committed against the United States.
Consider the unequal treatment of Nashiri and Mohammed.
Nashiri is the al-Qaida mastermind of the Oct. 12, 2000, attack on the USS Cole that killed 17 U.S. sailors. Mohammed is the al-Qaida mastermind of the Sept. 11, 2001, attack that killed 2,973 people in New York City, Shanksville, Pa., and Northern Virginia, including 55 U.S. military personnel and 70 civilians serving in the Pentagon.
Both Nashiri and Mohammed were waterboarded during interrogations by the Central Intelligence Agency.
In deciding to try Nashiri in a military commission, the Obama administration is conceding that military commissions are constitutional, legal and fully capable of providing al-Qaida terrorists with fair trials consistent with longstanding American traditions of justice.
It would have been impossible for the Obama administration to maintain otherwise. Article 1, Section 8, Clause 10 of the Constitution says: "The Congress shall have Power … To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."
The Framers understood this language to authorize Congress to enact laws providing for military commissions to try unlawful enemy combatants — a practice they knew well from firsthand experience. George Washington, who presided over the Constitutional Convention, had been personally responsible as commander in chief of the Continental Army for overseeing and carrying out the sentences of military commissions that tried British spies during the American Revolution. In 1942, the Supreme Court took up the case of Ex Parte Quirin, which pondered whether President Franklin Roosevelt — our most left-wing president until now — could lawfully and constitutionally order that a group of Nazi saboteurs captured on U.S. soil be tried by military commissions.
The unanimous justices pointed to Article 1, Section 8, Clause 10, and noted that Congress in 1806 had passed a law that "imposed the death penalty on alien spies ‘according to the law and the usage of nations, by sentence of a general court martial.’" This 1806 law, they observed, was based on a prior law enacted by the Continental Congress on Aug. 21, 1776 — hardly a month after approval of the Declaration of Independence.
That the Constitution intended for unlawful enemy combatants to be tried by military commissions and not by civilian courts, the justices concluded, "is a construction of the Constitution which has been followed since the founding of our government."
For President Obama to take Khalid Sheik Mohammad, captured overseas and held on a military base in Cuba, and put him in a civilian court in New York City to undergo a trial using legal procedures designed for the prosecution of American civilians who have not committed war crimes, does not reinstate the traditional American understanding of justice, it radically departs from it.
Why would President Obama and his attorney general choose this course? What point are they trying to make?
In a May 21 speech at the National Archives, Obama himself said: "Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts."
Is it Obama’s argument now that Khalid Sheik Mohammad did not violate the laws of war? Is it Obama’s argument now that the United States does not need to protect sensitive sources and methods used in gathering intelligence on Mohammed and his al-Qaida affiliates? Is it Obama’s argument now that the participants in Mohammed’s trial will not need the safety and security provided by a military commission? Is it Obama’s argument now that the case against Mohammed does not involve evidence gathered on battlefields that cannot be effectively presented in federal courts?
The truth is Obama has no argument at all to justify trying this unlawful enemy combatant who perpetrated war crimes against America in a civilian court designed for civilian crimes.