US Attorney-General Eric Holder’s decision to prosecute Khalid Sheikh Mohammed and 5 others held at Guantanamo charged in the 9/11 attacks (collectively referred to here as “KSM”) in United States federal court as criminal defendants grants them the full panoply of rights granted to all criminal defendants in US federal trials.
The decision to try KSM in federal court by US attorneys rather than under military law by a military war crimes tribunal automatically relegates them to the status of criminal. KSM will be treated no less fairly under American justice than a bank robber, white collar inside trader, kidnapper or murderer. A federal criminal trial open to the public and the media puts our justice system on display around the world, a statement by the Obama administration that America delivers on its promise of transparent justice for all. The possibility of American justice allowing KSM to be acquitted and released was deemed impossible by administration spokesmen. [Exactly how that will go poses questions suited to a separate article.]
There are SO many things wrong with this picture.
Assurances from our government that KSM will be convicted and executed make a trial nothing more than a show trial with the outcome predetermined. The Soviet Union did show trials; Iran still does. Ah, you say, what about the jury? After all, the Constitution mandates that the jury shall be of KSM’s peers. Well, not so much. KSM has no peers in the Manhattan jury pool or any other jury pool outside of Afghanistan, Iraq or Iran. Will he have at least an impartial jury willing to listen to the evidence before reaching a verdict? A jury drawn from the Manhattan jury pool in a courtroom blocks from Ground Zero already told by the government that KSM will be found guilty and die? No, I don’t think so. Impartial jurors will be impossible to find. Maybe a jury which won’t jump out of the jury box to strangle KSM, but not an impartial one.
Recent news is that KSM will plead not guilty and exercise his right to act as his own attorney. Ah – now there’s a scene we’d like to broadcast to the world: KSM blathering Jihadist nonsense with virtual impunity under the protection of the American justice system in a federal courtroom blocks from the destroyed WorldTradeCenter site. But as a criminal defendant in the US criminal justice system, KSM is entitled to act as his own attorney and the international media have the right to report it.
The blathering Jihadist scenario plays right into the hands of KSM. Having consistently expressed his wish to die and become a martyr for the cause, he gets a bonus from the Obama administration – the opportunity to blather his Jihadist nonsense to the world from the protected forum of a federal court.
The public debate on whether the US mainland has prisons secure enough to hold KSM is inane. Of course it does. Top flight US maximum security prisons are no less and probably more secure than Gitmo. The more pertinent question is whether there is a top flight US maximum security prison (penitentiary) within daily travel distance from downtown Manhattan. There isn’t. So, where will KSM be locked up during trial? Obviously in a less than maximum security facility. And how will he be moved from a detention center to court? By bus and police motorcade. I’d imagine that highways will be closed, air cover will be provided, snipers on rooftops, etc. Great. Just what New York City (or any city) needs – a daily security risk inviting terrorists from around the world to take their best shot against our best.
While it is difficult to imagine much that would make New York City a greater target for terrorism, the KSM trial would succeed in doing just that. Any venue where KSM is tried in federal court automatically becomes a target. The effort by local law enforcement, i.e., the NYPD, state and federal law enforcement to keep the court and public safe will be nothing short of monumental. Why should any local or state government bear the expense of trying KSM? While there is a certain element of pride, satisfaction and revenge by trying them in New York City where their war crimes were committed, those are not compelling enough to take on the attendant issues and risks such a trial would create. I say this despite being a native New Yorker and knowing our incredible resolve and resilience.
Fundamental to this issue is whether KSM is a run of the mill criminal defendant or a war criminal. KSM proudly admits committing terrorist acts killing thousands. We are fighting a global war on terror. Therefore, KSM is a war criminal – not your kidnapper/bank robber common type of criminal. It follows logically that a war criminal should be tried by a military war crimes tribunal as were war criminals of World War II and the genocidal ethnic purification war in Kosovo. Let such a military war crimes tribunal convene in the security of a high max prison with federally funded ground and air military protection during the trial.
KSM is a war criminal properly tried by a military war crimes tribunal. To label and try him as anything else denies the global war on terrorism.
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