War Courts for War Criminals

A ticking political time bomb has been largely obscured by official Washington’s preoccupation with screwing up our health care system: Americans are dead-set against a foolish, ill-considered and reckless decision to give the 9/11 plotters civilian trials – and constitutional rights – within spitting distance of Ground Zero in lower Manhattan.

And spit they will.  A lawyer representing one of the accused has made clear that his client and the ringleader of the conspiracy, Khalid Sheikh Mohammed (KSM) will plead not guilty, and use the trial as a platform to inveigh against this country and its policies.

Never mind that KSM and his friends had previously announced they would proudly admit their guilt and demand to be executed for this horrific war crime.  Now, Attorney General Eric Holder has given them what the self-described mastermind of the September 11 attacks has wanted from the moment he was captured: A lawyer and a trial in New York.

This idea is wrong on so many levels space constraints will only allow a brief treatment of some of the reasons that the American people overwhelmingly reject the Holder decision – according to one recent poll by a margin of 93 percent opposed to just 7 percent in favor.  The following have been identified by the remarkable Andy McCarthy, a former federal prosecutor who knows a thing or two about prosecuting Shariah-adherent terrorists – after all, he put away for life the Blind Sheikh Omar Abdel-Rahman in connection with the first effort to destroy the World Trade Center:

Hard experience with incarcerating such jihadists shows they are a threat to their jailers, fellow prisoners and populations beyond the prison walls.  For example, in 2000, al Qaeda operative Mamdouh Salim jammed a shiv into the eye of a prison guard, Officer Louis Pepe, in an escape attempt.  Military personnel securing enemy combatants at Guantanamo Bay are routinely subjected to physical assault from prisoners using as weapons body fluids, excrement and anything else at hand.

Jihadists in U.S. jails – both prisoners and chaplains – are aggressively recruiting felons to their cause.  A growing number of terrorist plots here in America have been spawned by individuals alleged to have embraced Shariah and its requirement to wage holy war while incarcerated.

As to the danger Islamists can pose to those in the outside world, even while behind bars, consider two prominent cases in point.  In 1993, following the first bombing of World Trade Center, Sayyid Nosair called from Attica prison for fellow jihadists to kidnap or kill political and judicial officials so as to secure his release and that of other captured terrorists.  Abdel-Rahman also issued from jail the religious ruling (or fatwa) that justified the September 11 attacks.  Mr. Holder did not consult with authorities in New York about the heightened danger their constituents might face, nor provide for the additional costs of protecting them.

The precedent of granting civilian trials to war criminals is an ominous one.  It is made all the more bizarre by the Attorney General’s decision, also announced on Friday, November 13th, that perpetrators of the attack on the USS Cole would be tried before military commissions.  The AG’s perverted logic seems to be: kill American civilians and you get far better treatment than if you go after military targets.  This is not the sort of incentive structure we want to offer our enemies.

It is far from certain, even if the foregoing were not the serious problems they are, that justice will be served in the trials of KSM and his co-conspirators: They were not read Miranda rights, to which the civilian courts will say they are entitled; they will try to preclude damaging confessions on the grounds that they were “tortured” – a point conceded by President Obama; and they will assert the impossibility of a fair trial in New York and in light of Messrs. Obama and Holder calling for their execution.

Fortunately, a spontaneous movement has begun to challenge Eric Holder’s benighted decision with respect to KSM and his murdering friends.  Starting with an inspiring rally at New York’s Foley Square on December 5th, a congressional press conference at the Supreme Court on December 10th and an extraordinary hour-long program on Fox News this weekend hosted by Sean Hannity, people across America are joining forces to ensure that war criminals are tried in war courts, rather than civilian ones.

This effort will focus on legislators who were, to paraphrase Sen. John Kerry, against bringing the likes of KSM to America before they were for it.  There are 47 Senators and 60 Members of Congress who flipped on the issue. (Their names can be found here.)

President Obama has, to this point, been somewhat cagey about the decision the White House has been happy to characterize as having been made without his input by Attorney General Holder.  If a fraction of the 93 percent of Americans who oppose that decision raise hell with their representatives about it, there is reason to hope that a President now seized with the just war we must wage against these jihadists will decide not to allow his top law enforcement officer to hand our enemies a needless, and potentially disastrous, victory.

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  • While freely admitting that I am not a lawyer, I am wondering if it is even legal to try KSM in a civilian court under International Humanitarian Law (i.e. Geneva & Hague protocols), to wit:

    From the Third Geneva Convention:

    “Art 84. A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

    In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.”

    And, on 7 Feb 02, the President signed a military order that stated that while Al Qaeda and Taliban detainees were “unlawful combatants” since they did not meet the qualifications for legally engaging in warfare under Geneva, they would be treated in a manner “consistent with Geneva.”

    “As a matter of policy, the United States Armed Forces will continue to treat detainees humanely and, to the extent appropriate and conistetit with military necessity, in a manner consistent with the principles of Geneva.”

    It would seem a great irony if after all the over-the-top rhetoric, the Bush Administration was the one holding to Geneva on detainees, while the Obama Adminstration was the one not following it.