No Civilian Trials for Terrorists

Americans are often smarter than those they elect to govern them.  According to a December 31 Rasmussen poll, “Fifty-eight percent (58%) of U.S. voters say waterboarding and other aggressive interrogation techniques should be used to gain information from the terrorist who attempted to bomb an airliner on Christmas Day.”

Instead of being shipped off to Guantanamo Bay, Cuba, Umar Farouk Abdulmutallab is lawyered-up in a Detroit jail, beyond the reach of CIA interrogators.  And forget waterboarding.  Thanks to the McCain Amendment of 2005, waterboarding — which was legal when it was applied to Abu Zubaydeh, KSM and others — is now probably illegal under US law. I say “probably” because the McCain amendment made a clear definition of “torture” so vague that it’s probably unconstitutional.  

But no matter: President Obama has prohibited the use of the “enhanced interrogation techniques” which served to save lives during the Bush administration.  

Not only have we tortured the law of torture, we have tortured the law on military commissions.  When President Bush signed an order authorizing them, he probably didn’t foresee that the trials would be delayed and modified several times by Congress and in two trips to the Supreme Court.  Congress — in the 2009 amendments to the military commissions law — relabeled “enemy combatants” as “unprivileged enemy belligerents.”  At least they’re not yet “underprivileged enemy belligerents.” Yet.

So now Abdulmutallab — as well as the 9-11 plotters, Khalid Sheik Mohammed and four other members of the al Qaeda varsity — will be tried in media circuses in civilian courts.  The New York trials — announced in mid-November — are to be paralleled by military commission trials of other big-time terrorists such as Rahim al-Nashiri, who is accused of planning the 2000 attack on the USS Cole which took seventeen sailors’ lives and nearly sank the ship.  

Is there any reason to distinguish between the al-Qaeda varsity to be tried in New York and the others who are going to be tried — in accordance with US constitutional and statutory law — in military commissions?  No.  The only distinguishing factor is President Obama’s desire to close Gitmo and prove — at all costs — that he is wiser than his predecessor.

Under Obama’s plans, inmates at the terrorist detention facility at Guantanamo Bay, Cuba will either be transferred to nations such as Yemen (from whence came Abdulmutallab’s attack, mounted by an al-Qaeda cell comprised, in part, of at least two Gitmo alumni previously released to Yemen), moved to New York for celebrity trials or to Thomson, Illinois for continued incarceration.

In his weekly address, President Obama described Yemen as a nation that is suffering from crushing poverty and threatened by deadly insurgencies, as if one created the other.  He assured us that we were “strengthening our partnership” with the Yemeni government to fight those “insurgents.”

Obama has strengthened our “partnership” with Yemen by closing our embassy there because — according to White House terrorism advisor John Brennan (the same John Brennan who was a key member of George Tenet’s pre-9-11 CIA team) — there is intelligence indicating an intended al-Qaeda attack against them. But Obama’s action in Yemen is a retreat: it reduces our presence in Yemen by one key base for CIA (and other agencies’) operations there.

Yesterday, the president announced that he was suspending the transfer of Gitmo inmates to Yemen.  Not barring, mind you. And the State Department announced it was revoking Abdulutallab’s visa. It’s enough to make you weep.

On last weekend’s Sunday talk shows, Brennan repeatedly said that the Obama administration was still considering — on a case-by-case basis — releasing some Gitmo inmates to the Yemenis.  Brennan also said that there are probably hundreds of al-Qaeda members in Yemen.

Closing Gitmo is still more important to Obama than keeping dedicated terrorists off the global battlefield.  He repeated yesterday his decision to close it, persevering in the false assertion that it’s a principal cause in al Queda’s success in recruiting terrorists. He said it was the proximate cause of al Queda’s forming its "al Queda in the Arab Peninsula" branch. Which, of course, is al Queda’s assertion. What the president doesn’t understand is that terrorist groups form and re-form, moving and taking new names as often as they see an advantage in doing so.

Obama’s decision to close Gitmo remains a reckless one, as are the decisions that flow from it.  There’s proof enough of why no Gitmo inmates should be released to Yemen or any other nation in which terrorists find sanctuary and support.  But Obama’s arguments for moving the KSM trial to New York are risible, as are and those of his team, Attorney General Holder, hapless Homeland Security Secretary Janet Napolitano and the rest.

There is no legal reason to do so, and every reason not to.  In July 1942, in , the US Supreme Court decided that eight German saboteurs captured by the FBI in New York and Chicago after having been landed on the US coast by submarine, were properly tried before military commissions.  (Six of the eight were executed shortly afterward.) As Attorney General Holder reluctantly admitted in Senate testimony last year, we have never before tried terrorists captured abroad — such as KSM — in civilian courts.

First, there is the very real danger to New Yorkers in bringing KSM and his pals there. Yes, New Yorkers take pride in their grit. But that won’t protect them from a terrorist attack meant to free the prisoners.  

Second, there is jury intimidation.  What juror will vote to convict KSM if he believes his family will be murdered?  There have been four trials of “recovered” mobster John Gotti, Jr. in the Southern District of New York in the last five years.  All have resulted in mistrials because of hung juries. (After the latest, his mother shouted, “We’re going to Disney World.”)

And then what?  Holder said that even if KSM were acquitted, he’d still be kept in custody.  How?  What judge would refuse a habeas corpus writ after an acquittal?

None of this is necessary.  None of this would happen in a military commission.  Which is why HUMAN EVENTS asks you to sign this petition to General Holder. Stop these trials. KSM and the others — including Abdulmutallab — should be in Gitmo and there subjected to the constitutional — and legal – remedy of trial in a military commission.