A View From the Cheap Seats

March 16, 2010

Wrong Trial, Wrong Place


By Rich Trzupek

The decision to try 9-11 mastermind Khalid Sheik Mohammed in a civilian court in New York City was ill-considered to begin with. Now that everyone from Congress to the Mayor of New York is piling on to criticize, it’s time for the Obama administration to make some tough decisions.

There are all kind of problems with holding the trial in New York and just about everyone, with the prominent exception of the administration, seems to understand that. Start with the estimated cost, $200 million, which prompted Senator Evan Bayh (D – Indiana) to observe: “If there’s somewhere we can try them without spending that money, why spend the money? We’ve got a lot of other fiscal problems.”

Happily there is such a place: Gitmo. But, the President seems bound by his promise to close Gitmo – er, eventually – so that sensible location would appear to be out of the question.

But hey, what’s $200 million in this age of multi-trillion dollar government spending? $200 million is background noise. The security nightmare that would surround this trial were it held in New York should be obvious to everyone. It would be a circus in New York, with the star performer being the guy who planned the World Trade Center attacks. Think that might draw the attention of other terrorists? You might as well draw a bulls-eye on New York and send engraved invitations to Al-Queda.

Reversing course, New York Mayor Michael Bloomberg now says he doesn’t want his city to host the trial, and – acting in the bi-partisan spirit that the President demands – members of both parties have made it clear that Congress will not fund a New York trial. For all practical purposes, the Big Trial in the Big Apple is dead. Good riddance to a stupid idea.

But will Obama come to his senses and not just relocate the trial, but abandon his absurd notion that terrorists are entitled to the protection of the Bill of Rights? In other words, will he choose – as presidents have before him – to seek justice in front a military tribunal, instead of a civilian court?

The left spent the better part of George W. Bush’s term in office demonizing military tribunals, basically because they spent the better part of George W. Bush’s term in office demonizing everything he did. But, utilizing military tribunals to deal with irregular combatants is hardly a new idea. Most famously, when Nazi spies were caught on American shores during World War II, Franklin Roosevelt had no qualms about hauling some of them in front a tribunal and having them summarily executed.

Mohammed is not entitled to Constitutional protections because: a) he is not an American citizen, and b) he has waged war against America. Nor is Mohammed entitled to the protections afforded by the Geneva Convention, because he and his fellow terrorists don’t abide by the Geneva Convention, as the widow of Daniel Pearl (the reporter who was beheaded by Mohammed’s fellow terrorists) could probably explain to the President. Legally and morally, Mohammed is fair game for whatever we might choose to do to him. A military tribunal, given the scope of Mohammed’s crimes, is not only the appropriate venue, one could argue that it’s gives this monster more legitimacy than he deserves.

Speaking on CNN, White House Press Secretary Robert Gibbs assured America that Mohammed would be punished by a civilian court – kind of. “Khalid Sheikh Mohammed is going to meet justice and he’s going to meet his maker,” Gibbs. “He will be brought to justice and he’s likely to be executed for the heinous crimes that he committed in killing and masterminding the killing of 3,000 Americans. That you can be sure of.”

We can be sure that he is “likely” to be executed. Well that’s comforting. The possibility exists – no doubt about it!

The larger danger, in addition to the real possibility that Mohammed might not receive the punishment he so richly deserves once the cumbersome American legal system swings into action, is the damage that will be done to our security systems and intelligence networks. Procedural rules and constitutional guarantees demand that Mohammed face his accusers and have a chance to refute the evidence placed in front of judge and jury.

Are there mechanisms to protect sensitive evidence? Sure there are, but we know – from bitter experience – that those mechanisms are not foolproof. Furthermore, deciding what is sensitive and what is not largely falls onto the shoulders of a judge, who can hardly be expected to be a national security expert. The government will argue that wiretap transcript X should be treated as sensitive information. Mohammed’s lawyer will argue that it should not. Some of the time, Mohammed’s lawyer will win that argument and the media will gleefully publicize the latest and juiciest tidbit.

Insisting that Mohammed be given the rights of an American citizen is the inevitable result of this administration’s curious combination of arrogance and naiveté. Obama is playing to the far left, even though much of the far left has abandoned him already, while leaving mainstream America, and more importantly mainstream Americans, to fend for themselves.


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