Responding to Attorney General Eric Holder’s explanation that Khalid Sheik Mohammed is being tried in civilian courts because the 9/11 victims were mostly civilians and because the attacks took place on U.S. soil whereas his compatriots who attacked the U.S.S. Cole would be tried before military tribunals since the attack was on a military target, Tom Maguire quips “[I]f the next batch of terrorists are clever enough to attack an elementary school will they be tried in juvenile court?”
More seriously, he points us to Pat Buchanan‘s column asking “Are We at War — Or Not?”
Is it possible we have done an injustice to this man by keeping him locked up all these years without trial? For that is what this trial implies — that he may not be guilty.
And if we must prove beyond a reasonable doubt that KSM was complicit in mass murder, by what right do we send Predators and Special Forces to kill his al-Qaida comrades wherever we find them? For none of them has been granted a fair trial.
When the Justice Department sets up a task force to wage war on a crime organization like the Mafia or MS-13, no U.S. official has a right to shoot Mafia or gang members on sight. No one has a right to bomb their homes. No one has a right to regard the possible death of their wives and children in an attack as acceptable collateral damage.
Yet that is what we do to al-Qaida, to which KSM belongs.
We conduct those strikes in good conscience because we believe we are at war. But if we are at war, what is KSM doing in a U.S. court?
Buchanan goes on to give several historical examples, some more salient than others. But his overall point about the dichotomy over how we’re dealing with terrorists vice how we deal with criminals is apt. He continues:
Were not KSM’s Miranda rights impinged when he was not only not told he could have a lawyer on capture, but that his family would be killed and he would be water-boarded if he refused to talk?
And if all the evidence against the five defendants comes from other than their own testimony under duress, do not their lawyers have a right to know when, where, how and from whom Justice got the evidence to prosecute them? Does KSM have the right to confront all witnesses against him, even if they are al-Qaida turncoats or U.S. spies still transmitting information to U.S. intelligence?
I am not a lawyer but there are ways around some of these issues. But, for the most part, the Justice Department will be very constrained in what evidence it can present given the need to protect sources and methods.
UPDATE: CIPA link via Adam Serwer. Note, too, that my concern isn’t that classified information will go unprotected but that the need to protect classified information will hamstring the prosecution. Given that we have other, legally sanctioned options, having a civilian show trial strikes me as imprudent.
