The Obama administration's absurd, unnecessary, and dangerous decision to prosecute 9/11 terrorists in a civilian court is plumbing the depths of what Charles Krauthammer has labeled "Bush Derangement Syndrome" (BDS): the acute onset of paranoia in otherwise normal people in reaction to the policies, the presidency -- nay, the very existence of George W. Bush. If they can convict some terrorists in the process, get ready for double-fist-bumps all around. At the detention center in Guantánamo Bay, Cuba, Khalid Sheikh Mohammed (KSM), the confessed mastermind of the Sept. 11 terrorist attack, and four co-conspirators face capital charges including conspiracy, murder in violation of the law of war, attacking civilians, terrorism, and providing material support for terrorism. "This [the death penalty] is what I want. I'm looking to be martyr for long time," KSM told the military judge at the arraignment June 5, 2008: At a pre-trial hearing Dec. 9, KSM again told the judge, "We don't want to waste time. We want to enter a plea." Rather than dispatching KSM to his reward as quickly as possible, Attorney General Eric Holder announced on Nov. 13 the administration's decision to prosecute KSM in a civilian court in New York City and their intention to dismiss the charges pending in Guantánamo Bay.
Holder has yet to express a rational basis for the decision. His statement and answers to questions from members of the Senate Judiciary Committee Wednesday strained credulity.
Holder said, "I am a prosecutor, and as a prosecutor my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case in the best forum." Sen. Jon Kyl resisted asking Holder if he was absent the day they taught law at law school, but he came close: "How could you be more likely to get a conviction in federal court when Khalid Sheikh Mohammed has already asked to plead guilty before a military commission and be executed?"
Holder's response was arrogant and non-responsive: "The determination I make on where I think we can best try these cases does not depend on the whims or the desires of Khalid Sheikh Mohammed. He will not select the prosecution venue. I will select it, and I have."
Holder also announced on Nov. 13 that five other detainees at Guantánamo Bay, including one accused of the 2000 attack on the U.S.S. Cole, will face trial before a military commission. It makes his excuses for trying the 9/11 terrorists in a civilian court even more suspect in light of his praise of the "Military Commissions Act of 2009," which the President signed on Oct. 29:
In his speech at the National Archives in May, the President called for the reform of military commissions to ensure that they are a lawful, fair, and effective prosecutorial forum. The reforms Congress recently adopted to the Military Commissions Act ensure that military commission trials will be fair and that convictions obtained will be secure.
Holder admitted in his Nov. 13 statement and in his statement before the Senate Committee that the 9/11 attacks were an act of war: "I know that we are at war. I know that we are at war with a vicious enemy who targets our soldiers on the battlefield in Afghanistan and our civilians on the streets here at home."
So why reward those who killed the most civilians with all of the legal rights of U.S. citizens after admitting it was a matter of choice, not a constitutional or legal requirement?
These proceedings in New York are all about making the case against former President George W. Bush as a war criminal while the whole world watches. It's what the Obama campaign promised its BDS base, as Andrew McCarthy points out in his National Review column, "Trial and Terror": During the 2008 campaign, candidate Obama and his adviser, Holder, rebuked the Bush counterterrorism policies and promised their base a "reckoning." Since President Obama took office, Attorney General Holder has anxiously shoveled into the public domain classified information relating to those policies - with the administration always at pains to claim that its hand is being forced by court orders, even though the president has had legal grounds, which he has refrained from invoking, to decline to make those disclosures. Moreover, during a trip to Germany in April, Holder signaled his openness to turning over evidence that would assist European investigations -- including one underway in Spain - that seek to charge Bush-administration officials with war crimes (which is the transnational Left's label for actions taken in defense of the United States). The history of military tribunals for prosecuting unlawful enemy combatants dates back to the Revolutionary War. Scores of cases are cited in the footnotes of the U.S. Supreme Court case Ex Parte Quirin (1942). For the first time in U.S. history, because of the irresponsibility of the Obama administration, unlawful enemy combatants (make that "unprivileged enemy belligerents") who committed an act of war against the United States will be charged with war crimes in a civilian court on U.S. soil.
Obama wants to wake up in the city that doesn't sleep to find he's king of the hill, top of the heap. Let's hope it's not another heap of rubble.
Jan LaRue is Senior Legal Analyst with the American Civil Rights Union.