Trying terrorists in federal court: a man-caused disaster

Of all the ill-considered decisions we have witnessed our political leaders make over the last 50 years, the Obama Administration's decision via Attorney General Eric Holder to bring Khalid Sheikh Mohammed to trial in New York federal court ranks at or near the top.

We already are familiar with Holder's sense of justice from his work in the Clinton administration, including the pardons of tax cheat and fugitive Mark Rich who also conducted illegal oil deals with Iran, and members of the FALN terrorist group responsible for numerous acts of terror in American soil and against American interests. He was directly involved in the commutations of sentences of former Democratic Congressman Mel Reynolds, who was convicted of bank fraud, wire fraud, sexual assault of a 16 year old and solicitation of kiddie porn, and cocaine trafficker Carlos Vignali, son of a long time Democratic fund raiser. And let's not forget his role as point man in the Justice Department's armed seizure of Elian Gonzalez.

But this decision takes the cake. There are so many problems with it that it's hard to know where to begin.

First, consider the other example of a devastating sneak attack on American soil: the Japanese attack on Pearl Harbor. If American forces had captured Admiral Yamamoto after the attack, would FDR have had him brought to Hawaii to be tried in federal court? The fact that he ordered his commanders to kill Yamamato should give us some clue. If that's not enough, consider that Navy fighter pilots, acting pursuant to the orders of Admiral Nimitz based on decrypted intelligence information, killed Yamamoto by shooting down his airplane.

And, yes, although we had not engaged the battle with al-Qaeda on September 11, 2001, we were, indeed, at war.

Second, consider the practical problems a trial in New York federal court creates. Already the victim of previous terror attacks, the Big Apple will have such an enormous red target on it. So big that it won't take William Tell's marksmanship to hit it.

And I don't necessarily mean 9/11 style massive attacks on the institutions of commerce or government. We have been largely spared the individual attacks of the homicidal maniacs who strap bombs to their chests and blow up discoteques, pizza parlors and buses. The rampage at Fort Hood of Murderer-Major Hasan--may his name be blotted out of history--shatters the myth that individual terrorists won't attack us like they do in Israel and other nations. It is not a stretch to think that Muslim brothers and sisters of KSM and al-Qaeda might use the trials as a cause celebre for them to wage local jihad.

That's not hysteria or discrimination--it's practical serious concern. I'm confident that New York and federal law enforcement are up to the task of protecting locals from large scale terror attacks. And with family and friends bravely serving, I have all respect in the world for law enforcement. But I'm not as confident about any agency's ability to stop the individual, clandestine jihadist.

Think about it. The population of New York state is about 19,500,000, of which about 3.5% is reportedly identified as Muslim.  That's about 682,500 Muslims. Let's assume that 99.9% of these Muslims are fair, honest, decent, freedom-loving Americans who would never support or engage in jihad against the West. Even if the remaining 1/10 of 1% of Muslims is made up of radicalized jihadists willing to blow themselves up to destroy the infidels, that's still nearly 700 potential homicide bombers in New York state alone. If you add similar population ratios of neighboring states from which the Big Apple is reachable by a relatively short car ride, the number would reach well into the thousands. Again, that's not alarmist or insensitive--it's just statistical probability.  Cut the number in half and it's still huge given the degree of threat they pose.

Other practical problems will also exist. The judge who handles the case will doubtless be subject to death and security threats, as will the judge's family. How about the jurors in the case? It's unlikely their identities would be kept secret forever--after all, apparently openness is what the Obama Administration wants. Certainly they, and their families too, could face threats. What about court staff, witnesses, lawyers?  Transporting the defendants to court everyday also carries inherent security problems. The buildings where the trial will occur and the defendants will be held, too, will be obvious targets.

Plus it gives al-Qaeda the very type of forum and publicity it wants. What better place to spread their hate and murderous intentions than from the witness stand in open court with politically correct, sympathetic news organizations genuflecting at the spectacle of it all? And in Manhattan no less, where all can see, blocks from their greatest success. Can you say "circus"?

Then there are the legal problems and, as a lawyer, I can tell you these are significant. Obama says he is "absolutely convinced that Khalid Sheikh Mohammed will be subject to the most exacting demands of justice." Presumably that means permitting a vigorous and zealous defense as all American criminal defendants are to receive. Enterprising defense lawyers will use every method they can think of to assist in the defense of KSM and his fellow murdering terrorists. And they will have at their disposal all of the rules available to any American criminal defendant charged in federal court, including seeking exclusion of evidence or dismissal of charges because, for example, torture was used or the defendants were questioned too harshly.

That creates a logical (even necessary) area of inquiry into classified and top secret US intelligence and interrogation methods and strategies. That's what we lawyers call the discovery process. To prepare their defenses and prove their points, defense attorneys will rightly demand access to all manner classified and top secret documents in all formats, including digital files and recorded conversations. We'll open the panoply of secrets to our enemies. How can they get a fair trial otherwise? You can expect that would amount to the evaluation and cataloging of hundreds of thousands of documents at minimum, not to mention witness interviews, subpoenas and even requests for information from other nations. The discovery process alone will likely take years to complete. By way of comparison, Timothy McVeigh's criminal proceedings took nearly 2 years from initial indictment to pronouncement of his death sentence. So if you're representing KSM, and you evaluate this information over many months with the goal of defending your client, why would you not make American intelligence procedures the issue and hold a proxy trial for the unpopular Bush, Cheney, Rice, Rumsfeld, and the CIA?

And good luck keeping all of our secrets secret. According to former Attorney General Michael Mukasey who was the presiding judge over the trial of the first WTC bombing in 1993, some of our secrets revealed during that trial made their way to Osama bin Laden.  Think that can't happen here too? Holder and Obama either don't think so or don't care.

And there is something particularly problematic about trying these demons in Manhattan, near the WTC. How in the world does the Administration think that a fair trial can be had in New York? Don't you think the jury pool might be a wee bit tainted or biased against the defendants? Even McVeigh's case was transferred from Oklahoma City to Denver. Really, where--OK, other than Berkeley--where in our great nation can a fair trial be had for America-hating, freedom-despising, murderous war criminals who committed the greatest terrorist act ever on our soil?

Assuming a fair trial can be had, what happens if there is an acquittal? Or dismissal on procedural or other grounds? Those outcomes are unlikely but could happen, especially if justice will be as "exacting" as Obama says it will be. In federal criminal court, the Obama Administration must face the real if unlikely possibility of acquittal or dismissal.

All of which, of course, is why war criminals like these should be tried in military tribunals. Yes, even if they're acts of war weren't on "the battlefield" or against military personnel. These are not common criminals. The military tribunal system can provide fair and efficient justice under these circumstances for these particular offenders. And though acquittal or dismissal could happen there too, it's even less likely and there will be much stricter controls on the discovery and trial processes. Military tribunals exist to try scum like these. That's why we established them.

And we have Guantanamo Bay, a secure location to house and try them to protect Americans and the integrity of our military and intelligence. That's why it's there.

Obama has gone to great lengths to be the all things anti-Bush and blame Bush for all of his problems. In striving so hard to be the anti-Bush, he and Holder have made an asinine decision that needlessly threatens American lives, imperils our efforts to fight our enemies, and displays weakness when we most need to show strength.

Truly, this decision is a man-caused disaster.