KSM Trial: A Confederacy for Dunces

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"The decision to bring Khalid Sheikh Mohammed and four other top al-Qaeda terrorists to New York City for a civilian trial is one of the most irresponsible ever made by a presidential administration. That it is motivated by politics could not be more obvious. That it spells unprecedented danger for our security will soon become obvious."

-Andrew McCarthy, writer for the National Review, in an editorial on CBSNews.com, Nov. 16.

"One of the most irresponsible [decisions] ever made by a presidential administration"? Really? More irresponsible than blowing off warnings in August 2001 about al Qaeda attacks within the United States using planes? More irresponsible than starting a war against Iraq based upon faulty intelligence information? More irresponsible than letting Osama bin Laden escape from Tora Bora? More irresponsible than authorizing the torture of terror suspects in contravention of domestic and foreign law? More irresponsible than insisting upon unfair military tribunal rules despite Supreme Court decisions to the contrary?

Conservatives like McCarthy had their chance to prosecute the legal war on terror and America is still cleaning up the mess they have left. For example, the Bush administration and its supporters in Congress had several opportunities to formulate fair trial rules for men like Mohammed. Instead, the executive and legislative branches tried over and over again to force a series of patently unfair procedures down the throats of the federal judiciary. The argument that the "jihadists were prepared to end the military case" before the Obama administration went the federal civilian trial route ignores the legal chaos and inertia that surrounded the tribunals at Guantanamo Bay, Cuba.

Having failed miserably to accomplish the job of prosecuting and convicting terror suspects via tribunal, and being unable to argue against the track record created by the federal courts in trying terrorists, the Right now wants you to believe that there is a great conspiracy afoot. The argument is that President Barack Obama, Attorney General Eric Holder and their apparatchiks are gleefully going to permit or encourage the Mohammed trial to degenerate into a trial of Bush-era torture policies and practices. The premise is that current administration officials would rather punish their predecessors than the man who openly boasts of planning the worst terror attack on American soil. "This will give the Left its promised feast," McCarthy cries.

You need only consider the alleged co-conspirators to this plot to understand how much of a fable it really is. Federal prosecutors will be conspiring with criminal defense attorneys, who will be conspiring with veteran federal trial judges, who will be conspiring with intelligence officials, who will be conspiring with trial witnesses and experts and the media, who will be conspiring with the judges of the 2nd U.S. Circuit Court of Appeals, who will be conspiring with the most conservative Supreme Court in a generation, all to the benefit of al Qaeda and to the detriment of former government officials. In other words, the very same justice system which is designed to encourage conflict and contest in a test of evidence and a search for truth suddenly is going to coalesce around a plan to incriminate Bush officials and help al Qaeda.

It gets worse. McCarthy also is selling the canard that administration officials have brought the Mohammed trial to America, to open court, so that White House allies out of government can "gather up each new disclosure and add it to the purported war-crimes case they are urging foreign courts to bring against President Bush, his subordinates, and U.S. intelligence agents." So you can add civil rights groups to the list of co-conspirators and maybe Spain and a few other countries as well. Pretty soon, the number of conspirators in the fantasy plot will rival the number of conspirators federal prosecutors say were involved in the 9/11 attacks.

The truth is that the Obama Administration has had plenty of opportunities to more fully expose any misfeasance attributed to men like John Yoo and David Addington and Dick Cheney and Jay Bybee. And, in almost all circumstances, Democratic officials have protected their Republican predecessors. Yes, the White House released certain embarrassing memos a few months ago that gave us more information about the formation of Bush-era torture policies. But Obama has consistently refused to authorize a "truth" commission to look into the matter, has invoked privileges to protect evidence, and has left his former colleagues in the Congress to publicize their own investigations into how we became, for a few years, a nation that tortured people.

There is no more an active conspiracy to indict the past regime than there is, necessarily, an "unprecedented danger" to our security brought about by the Mohammed case. The mayor of New York, who will be in office when the trial gets underway, says the City is ready for the challenge. So does the police commissioner. Both before and after 9/11, Manhattan has been a secure venue for terrorism trials and a good many of the 300 foreign and domestic terrorists currently sitting in our prisons came through the Southern District of New York.

Classified material? Critics of a civilian trial say it will give Mohammed and his colleagues all sorts of secrets—another form of the security argument. But federal judges have long used the Classified Information Procedures Act to govern the use (or not) of classified information at trial. Holder on Wednesday morning reminded the Senate Judiciary Committee that the Congress "recently adopted" standards for the military commissions based upon the CIPA rules themselves. The idea that the civilian trials are going to be sieves while the tribunals were going to be sealed tight just doesn't fly.

"For eight years," Holder told the Judiciary Committee in prepared remarks, "justice has been delayed for the victims of the 9/11 attacks. It has been delayed even further for the victims of the attack on the USS Cole. No longer. No more delays. It is time, it is past time, to act. By bringing prosecutions in both our courts and military commissions, by seeking the death penalty, by holding these terrorists responsible for their actions, we are finally taking ultimate steps toward justice."

You tell me if those are the words of a man who is part of a treasonous government conspiracy to aid our sworn enemy for political gain. You tell me if bringing Mohammed to a capital trial near Ground Zero is an overt act toward fulfilling some plan to embarrass the evidently un-embarrassable Dick Cheney. The only confederacy in play here exists in the minds of those who are angry and frustrated at having blown their own chance to see Mohammed get the justice he deserves under their watch.
  • Andrew Cohen

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