Trial and Terror

Andrew C. McCarthy is a writer for National Review and a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad.

The five 9/11 plotters were originally charged in a military commission. Military commissions have been approved by Congress and the courts. Eleven months ago, the jihadists were prepared to end the military case by pleading guilty and proceeding to execution. Plus, the Obama administration is continuing the commission system for other enemy combatants accused of war crimes. If we are going to have military commissions for any war criminals, it is senseless not to have them for the worst war criminals. In sum, there is no good legal or policy rationale for transferring these barbarians to the civilian justice system. Doing so will prompt a hugely costly three-ring circus of a trial, provide a soapbox for al-Qaeda's anti-American bile, and create a public-safety nightmare for New York City.

There is, however, a patent political rationale behind Obama's decision.

The terrorists are clearly committed members of the al-Qaeda conspiracy to wage a terrorist war against the United States - so much so that KSM cannot help himself, bragging about his atrocities against our country, including the 9/11 massacre of nearly 3,000 Americans. Further, controversy surrounds the intelligence-collection measures used by the Bush administration after 9/11 - measures such as enhanced interrogation that, though they saved countless lives, have been stridently condemned by the antiwar Left. This antiwar Left, President Obama's base, has demanded investigations and prosecutions against Bush officials.

The Obama Justice Department teems with experienced defense lawyers, many of whom (themselves personally or through their firms) spent the last eight years volunteering their services to America's enemies in their lawsuits against the American people. As experienced defense lawyers well know, when there is no mystery about whether the defendants have committed the charged offenses, and when there is controversy attendant to the government's investigative tactics, the standard defense strategy is to put the government on trial.

That is, Pres. Barack Obama and Attorney General Eric Holder, experienced litigators, fully realize that in civilian court, the Qaeda quintet can and will demand discovery of mountains of government intelligence. They will demand disclosures about investigative tactics; the methods and sources by which intelligence has been obtained; the witnesses from the intelligence community, the military, and law enforcement who interrogated witnesses, conducted searches, secretly intercepted enemy communications, and employed other investigative techniques. They will attempt to compel testimony from officials who formulated U.S. counterterrorism strategy, in addition to U.S. and foreign intelligence officers. As civilian "defendants," these war criminals will put Bush-era counterterrorism tactics under the brightest public spotlight in American legal history.

This is exactly what President Obama and Attorney General Eric Holder know will happen. And because it is unnecessary to have this civilian trial at all, one must conclude that this is exactly what Obama and Holder want to see happen.

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).

Now, we see the reckoning: Obama's gratuitous transfer of alien war criminals from a military court, where they were on the verge of ending the proceedings, to the civilian justice system, where they will be given the same rights and privileges as the American citizens they are pledged to kill. This will give the hard Left its promised feast. Its shock troops, such as the Center for Constitutional Rights, will 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.
From indictment to trial, the civilian case against the 9/11 terrorists will be a years-long seminar, enabling al-Qaeda and its jihadist allies to learn much of what we know and, more important, the methods and sources by which we come to know it. But that is not the half of it. By moving the case to civilian court, the president and his attorney general have laid the groundwork for an unprecedented surrender of our national-defense secrets directly to our most committed enemies.

The five jihadists in question are alien enemy combatants currently detained outside the United States. They are not Americans and are not entitled to the protection of our Bill of Rights. That means that in a military-commission trial, they would be given only those rights Congress chose to give them.

At Gitmo, they've insisted on representing themselves. In a military commission, we can allow them to do that, but we don't have to. The commission rules provide for the appointment of military counsel and permit the combatants to retain their own lawyers. This is significant because discovery rules require that the defense be given mounds of information for trial preparation. Much of that information is top-secret intelligence. Importantly, however, we do not have to show the terrorists themselves any classified information. Only counsel who have the required security clearances, and are duty-bound not to reveal the nation's secrets to the nation's enemies, get access.

The rules are saliently different in the civilian justice system, where, the attorney general has promised, this case will be treated like any other criminal case. In federal court, defendants - even illegal aliens - are vested with constitutional rights that Congress may not alter or reduce. One of those is the right to represent oneself, meaning: to conduct one's own defense without the participation or interference of an attorney.

In 1975, the Supreme Court ruled in Faretta v. California that this right to self-representation is absolute. As Justice Potter Stewart put it, "forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." To borrow Holder's pet phrase, we are supposedly bringing terrorists into civilian court to honor "the rule of law." Well, our rule of law holds that a defendant may tell the judge that he does not want a lawyer, that he wants to conduct his own defense, and that he wants to see all of the legally required discovery himself - not have a lawyer or some other government operative restrict his access.

The judge may try to talk the defendant out of his decision to be his own lawyer. The judge may appoint "stand-by counsel" to advise the defendant and to be available to represent the defendant if he changes his mind. Under Faretta, however, the judge may not deny the defendant the right to conduct his own defense.

By transferring this case to civilian court rather than leaving it to be handled by the military-commission system created by Congress, Obama and Holder have needlessly created a perilous dilemma. Do we deny KSM & Co. the right to represent themselves and thus risk reversal of any convictions on Sixth Amendment grounds? Do we grant them self-representation but withhold critical discovery and thus risk reversal on due process grounds? Or do we grant them self-representation and disclose directly to our wartime enemies the nation's security secrets, which they can then pass on to confederates who are actively targeting us for mass-murder attacks?

In the military court, there would be no such dilemma. Indeed, in the military court, this case would be over now. If President Obama had simply let it proceed, there would have been no trial, and these war criminals would be well on their way to the execution of death sentences.

But then the Left would not have gotten its reckoning. Can't have that.

By Andrew C. McCarthy:
Reprinted with permission from National Review Online