The latest affront to American security is the Obama administration's decision to hold civilian trials for five of the 9/11-associated terrorists. For now, five other Gitmo inmates are scheduled to be tried as enemy combatants on foreign soil by military tribunals that will apply comparatively swift military justice.
Which raises the question: Why try five in civilian court and five by military commission? Quite simply, the dynamic duo of Barack Obama and his attorney general, Eric Holder, devised a way to put President Bush on trial after all. Among the five to be tried in New York City is the mastermind of 9/11, Khalid Sheikh Mohammed, whose confessions were obtained via the Bush administration's use of "illegal torture." I guess the Obama administration figured it might look fishy to shuttle Mohammed alone to NYC, so they indicted four others to accompany him.
The Obama/Holder publicity stunt is highlighted by the fact that Mohammed had already sent a letter to a military judge expressing his desire to plead guilty. According to Barack Hussein Obama, Khalid Shaikh Mohammed was "tortured" 183 times by the evil Bush administration. After 9/11 and the death of nearly three thousand Americans, Mohammed's fingernails were not ripped out; neither was bamboo shoved under them, nor shoved anywhere else. Dick Cheney didn't break out his stretching rack or his hammer to smash fingers. Bush didn't provide free dental care with an electric drill. In fact, the worst "torture" Mohammed faced was waterboarding, which is simulated drowning -- not a "near-drowning technique" as the New York Times defines it. Of course, we shouldn't be surprised by the antics of Eric Holder. After all, he is the one who pardoned, among others, sixteen FALN terrorists in 1999 as Deputy Attorney General for President Bill Clinton. "The pardon was widely seen as an attempt to curry favor with Puerto Rican voters ahead of Mrs. Clinton's 2000 Senate bid." Oddly, the terrorists never had to petition for clemency or show remorse.
I guess appointing Eric Holder was consistent with viewing waterboarding as torture and offering Miranda rights to captured terrorists in Afghanistan.
In reference to affording a civilian trial to the terrorist mastermind, Mr. Obama says:
I am absolutely convinced that Khalid Sheikh Mohammed will be subject to the most exacting demands of justice. The American people will insist on it. My administration will insist on it.
Well, if that were true, Khalid Mohammed would have faced a military firing squad. Short of that, a military trial nowhere near our shores appears to be what the American people would "insist on" if they had a say in the matter.
When asked by a reporter about the risks of Mohammed obtaining an acquittal in civilian court, Eric Holder said:
I would not have authorized the prosecution of these cases unless I was confident that our outcome would be a successful one.
Now we can sleep better. Holder is confident the outcome will be "successful." Is he confident that Bush will be found guilty in the court of public opinion or that the terrorists will receive the wages of terrorism?
The problems with trying terrorists in civilian court are too numerous to cover in one essay, so I have narrowed the following legal analysis to the "torture" issue -- which happens to be the reason for having a show trial in civilian court in the first place.
Like much of Obama's decision-making, I don't think the Justice Department has really thought this one through. The defense will move to change the venue, but regardless of whether Mohammed is tried in NYC or elsewhere, the jury would likely hang him high.
But the problem is that juries only judge issues of fact. The civilian court -- that is, a federal district judge -- will judge all questions of law. When tried in federal court, the 9/11 animals will be afforded more than Miranda warnings; they will enjoy the protections of all constitutional trial rights and Federal Rules of Criminal Procedure.
The question of whether the Mohammed's confessions were illegally obtained is a question of law. In federal trial court, the defense will file a pretrial motion to suppress the evidence based on confessions obtained by coercion. Actually, they have a stronger argument: The confessions were obtained by illegal torture. It doesn't get much better than that for the defense. If the court rules that the confessions were illegally obtained, the statements will be suppressed from evidence; which means the jury will not hear that evidence.
Now, the real craziness of the pending scenario is that Obama and Holder have been running around saying that waterboarding is illegal torture. In other words, they have already supported the defense of the man they now wish to prosecute in civilian court. A fiction novelist would be hard-pressed to come up with a story so ridiculous. Let's hope the bulk of the evidence connecting Mohammed to 9/11 comes from sources other than his confessions.
If by some chance the judge doesn't toss the case because of Holder's conflicted idiocy and Mohammed is found guilty, he may then turn to the federal appellate process and waste the resources of that system for years to come.
Apparently, Messrs. Obama and Holder believe they will showcase to the world the moral high ground of the new administration. More likely, however, they will demonstrate that their leftist ideology is causing a seismic shift away from protecting America's own interests.
Whatever the outcome of the trials, by politicizing the Justice Department, Mr. Obama is setting another disastrous precedent in U.S. terrorism policy.
Monte is an attorney whose work has been published in law journals at Duke, Virginia, Samford, Richmond and St. John's.