By Katelyn McMahon
President Obama and Attorney General Eric Holder have made the decision to give the 9/11 mastermind Khalid Sheikh Mohammed (KSM) andfour others -Waleed bin Attash, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Ali – a trial in the civil court of New York City pulling them out of the military tribunal they would have faced in Guantanamo.
A military tribunal is the only realistic and adequate way to conduct this case. This is the opinion of the Supreme Court which in 1942 issued its ruling (317 U.S. 1 Ex Parte Quirin [n1]) dealing with violent foreign operatives in time of war. The ruling came in response to a lawsuit filed by German soldiers who were captured inside the United States and tried before military tribunals. The court stated that those “attempting to commit sabotage espionage, hostel acts, or violations of the law of war, shall be subject to a military tribunal.”
This ruling allowed the U.S. to even try American citizens before military tribunals if they associate themselves with an enemy. KSM and his co-defendants are not United States citizens. They are enemy combatants, and under those circumstances a military tribunal is appropriate. These terrorist attacks have been carried out against American soil and civilians by a foreign organization using tactics, munitions, and equipments that are exclusively military. These attacks targeted the United States and her civilians and military around the world for over twenty years, using military tactics and means. These men meet the wordings of the Supreme Court ruling.
This civilian trial also opens a new Pandora box of legalities regarding the evidence against them, how they were obtained, and even the legal status of these men who are inadmissible into the United States under immigration law. A true civilian trial would require “mirandizing” of suspects, trial evidence, a discovery period, confrontation of witnesses (including confidential informants, spies, and CIA case officers whose anonymity is critical to their success and survival). Releasing classified information causing a possible security breach; any confessions that involved water boarding will be tossed out, and the cross examination of the soldiers and marines who captured the suspects. Once civil liberties organizations get involved this trial will be guaranteed for an acquittal or a dismissal under the normal civilian rules and procedures.
Thus, it is not appropriate to give KSM a civilian trial when he is responsible for masterminding and funding plots and attacks such as The World Trade Center bombings in 1993, the Operation Bojinka plot in the Philippines, the Millennium Plot in Los Angeles and the murder of Daniel Pearl in Pakistan.
Mr. Pearl’s family is disappointed in the president’s decision According to the Huffington Post Mr. Pearl’s father “is sick to his stomach” by the decision. Why then is the President of the United States allowing him typical rights of a citizen? Americans who have lost family members in the terrorist attacks carried out by these combatants have questioned this decision and held a rally against it outside Ground Zero to express their disapproval.
The citizens who lost their lives in these terrorist attacks should not be desecrated and their memory should be protected. It is the duty of the ELECTED officials to do just that. KSM is responsible for the deaths of thousands of American civilians and military personnel, and yet we give him a trial which will likely end up putting the United States herself on trial.
According to the Washington Post former Attorney General Michael B. Mukasey, criticized the move as reckless and dangerous and mentioned that “the case could be lost on a technicality if defense attorneys successfully argue that the defendants’ years-long detention is a violation of the Speedy Trial Act.” So many technicalities would be involved in this case that these men can easily get off.
President Obama is also complicating the civilian trial by saying that KSM will get the death penalty. As a lawyer, Obama should know better. His statement could be used by the defense to ask for a mistrial based on jurors biased by the president of the United States. There is a substantial danger that this trial will end up with the government prosecutors failing to convict KSM or resulting in a mistrial. This would create a legal crisis and maybe a national political clash.
The President’s statement gives the impression that our court system is under this control, thus violating the principle of separation of powers. It is that separation that allows the court system the ability to render a fair and impartial verdict. Obama is giving this enemy combatant a civilian trial in which twelve “unbiased” jurors will decide his fate, and yet the President of has already announced the final verdict to be the death penalty. If these men do get the death penalty, then the United States system of jurisprudence will appear significantly flawed and over 200 years of jurisprudence questioned. President Obama needs to revaluate his decision. If he does not, Congress can override the president’s decision but they have so far gone along with the president. The president and the congress need to revise this decision based on these facts.
Katelyn McMahon is an associate analyst at the Institute for Gulf Affairs, a think-tank in Washington DC.
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