The Obama administration’s decision to have a civilian trial for the 9/11 terrorists is a political one. The attorney general hasn’t foresworn military tribunals: Abd-al-Rahim al-Nashiri, the USS Cole attacker, is to be brought before one. There is no doubt of the guilt of the 9/11 plotters: Khalid Sheikh Mohammed and the four others being sent to New York for trial. No trial is required to establish that they committed the crimes they are charged with. The defendants even told their military judge in December 2008 that they wanted to plead guilty, dispense with a trial of any kind, and proceed directly to execution. In fact, they outlined at the time precisely what they were prepared to plead guilty to, a list that extends well beyond the 9/11 attacks.
Nothing relevant to deciding the fate of the terrorists will be revealed in the civilian trial. Eric Holder’s assurance that he is seeking the death penalty is risible. Of course he is: the idea that it was necessary for him to seek the death penalty in a civilian courtroom in New York, if justice was to be comprehensively served, is what makes it so. Since it was entirely possible, and equally just, to try KSM and his collaborators before a military commission, it’s flashing-neon obvious that for Holder, the point is not to seek the death penalty but to have the proceeding in a civilian court.
The question is why. The suspicion of the left that military commission trials are somehow less subject to federal civilian supervision is manifestly idiotic. The Department of Defense is an executive agency subject to the supervision of the president, and to the inquiry (and defunding) of Congress, just like the Department of Justice. Military commissions operate by rules set by the federal executive. They are not some form of Wild West posse, merely because they are not as well known to the mainstream media as the Ninth Circuit Court of Appeals. The terrorists tried before them have whatever representation they want, including civilian attorneys; and by the reasonable-man theory the commissions have performed very sensibly, showing no apparent tendency to over-convict.
It is the statement of a political opinion, not the proclamation of a self-evident proposition, to say that transnational terrorism “ought to be” countered through the use of the civil justice system, rather than through military mechanisms. The Obama administration has discussed dealing with terrorism as a civil justice matter on a number of occasions, but there is nothing to suggest the American people therefore agree that the use of military mechanisms is, by implication, improper. Obama and Holder must, in fact, not think it’s improper, since al-Nashiri is scheduled to be tried before a military tribunal.
So why is Holder so anxious to have a civilian trial for the 9/11 plotters? Andrew McCarthy offers one theory. Given Holder’s history, and the composition of his Justice Department, it is not an improbable one. Readers unfamiliar with McCarthy’s analysis on this topic should follow the links to his earlier posts as well. They should also familiarize themselves with the work of Holder’s firm, Covington & Burling, at which he was a senior partner before joining the Obama administration. (Start with this piece and this one.) Covington & Burling is one of the principal law firms representing GTMO detainees, and it, along with the “Center for Constitutional Rights,” a radical left organization (founded by William Kunstler and Arthur Kinoy) that has specialized in representing the GTMO terrorists, has supplied a number of the appointed officials in the Holder DOJ.
Mere cynicism would recognize that Holder’s old firm and the CCR can make much more hay, publicity-wise, of a civilian trial in New York than they could of trials by military tribunal. But McCarthy’s thesis is that these lawyers’ intention is, through disclosure, to get as much into the public record as possible about the Bush administration’s handling of detainees, for the purpose of making it available to “universal jurisdiction” activists so they can build cases against American officials overseas.
One all-important thing about McCarthy’s own case: it doesn’t actually matter what Holder and his DOJ officials intend to do. I don’t need to argue what their intentions are, and any attempt to make that the issue is a big head-fake with a red herring. Regardless of what they intend, the effect of moving KSM and his cohort into the civil justice system is virtually certain to be exactly what McCarthy predicts. Since KSM et al are guilty beyond a shadow of a doubt, the strategy of their defense team will be to get all the dirt it can on the government. Ostensibly, the implied objective of that strategy would be to induce the jury to convict on lesser charges, and/or to obtain some lenience in sentencing. Because the process itself has a well-developed methodology in the US justice system, it’s possible to invoke the theoretical objective of any defense lawyer in a like situation, and pose his approach in those terms.
But that abstraction is unconvincing. The prosecution has to win this one – not just win it, but get its death penalties. That’s not just logically obvious, given the facts and the universal knowledge of them; it’s politically obvious. Holder and Obama both have to know that little about this trial can redound to their political credit, especially in terms of 2010 electoral politics. If it’s still ongoing during the campaign, the “visual” of KSM & Co being diligently represented by American lawyers in court, as a showpiece of Obama-era antiterrorist policy, will cost the Democrats more votes with every headline. If it’s over, we have to assume the defendants will have been convicted: should they not be, Obama could probably kiss his majorities in Congress goodbye. Average Americans really are not in favor of acquitting obviously guilty terrorists in civilian court, no matter how many people disagree with the government’s interrogation methods (and polls suggest most Americans don’t).
This feature of the logically-projected future brings up another point, which is that Holder and the DOJ don’t expect the revelations of government agency conduct, made through trial disclosure, to result in any charges being brought against government officials. How could they? The Justice Department has already reviewed all the actions that could be revealed in disclosure, and concluded that there is nothing to prosecute. As McCarthy points out, even the unsanctioned CIA interrogation techniques that produced so many headlines earlier this year occurred in 2002, were referred for investigation shortly thereafter, and had been deemed non-criminal by the Justice Department in 2004. (Moreover, all his vague protestations notwithstanding, Obama has never categorically foresworn using any interrogation technique; he has merely, like Bush, reserved the prerogative of decision about them to himself.) There is no prospect of indictments against government officials coming out of the KSM trial – nor would a trial be needed, to expose the acts in question, if there were. Everyone who needs to see the record of the Bush administration to decide if indictments are in order has already seen it.
The decision to hold a civilian trial for the 9/11 plotters therefore doesn’t parse as an obvious ploy from this angle either. And again, regardless of the intentions of Obama and Holder, the effect of a civilian trial will be to get information about Bush-era handling of detainees into the public record through disclosure. It is useless to argue that this won’t happen; of course it will. The extent to which it involves the forced disclosure of national security information will depend, as McCarthy indicates, on which judge presides over the trial. Even if a judge favoring the maximum public disclosure is challenged on his evidentiary rulings (unlikely, since the challenge would have to come from the Obama administration itself), such a challenge would have to crawl through the courts, and would end up setting a precedent – just as the judge’s original rulings will.
It is a valid question whether there even ought to be judicial precedents regarding the compulsory disclosure of national security information, when the situations at issue involve the trials of foreign combatants who plotted to blow up the World Trade Center and the Pentagon, and who collaborated in killing 3,000 Americans. This is another of those things that are not self-evident, but are in fact a matter of political opinion. The case that the judiciary has no business compelling the disclosure of national security information – including the names of Americans who interrogated enemy combatants – in a civilian criminal trial, when the larger enterprise in question is a war for the survival of our nation and way of life, is convincing to an awful lot of the American people. Condemning the many ordinary Americans who hold that opinion is not an argument, it’s just a mindless partisan rant.
And as to the use our national security information could be put to, by foreigners anxious to build “universal jurisdiction” cases against Americans, of course this could happen. As McCarthy outlines, the attempt is already underway in Spain – where an indictment of Israelis was already obtained in Spanish court based on their alleged actions in Gaza in 2002. Complacent certainty that Europeans wouldn’t do this sort of thing to Americans is badly misplaced: some would. Complacent certainty that it’s a meaningless gesture is also misplaced. You won’t be under indictment by a Spanish court (or, who knows, a Cuban or Venezuelan one), but it will matter to any Americans who are: it will cost them money to retain representation, limit their options for travel and employment, and leave them under a perpetual sword of Damocles, utterly dependent on the character of the US administration and its likelihood of extraditing them for foreign trial.
Moreover, it wouldn’t take terrorist organizations more than a nanosecond to figure out a way to incorporate this whole dynamic into the process of bargaining for detainees. That’s on top of the even simpler and more obvious option to target individual Americans for assassination, since their identities, and the charges against them, would be publicly available.
No outcome of “liberal Western” justice can come from this civilian trial approach. There is no justice obtainable through the civilian system that is not equally obtainable through a military tribunal. Using the civilian system merely ensures that activists can engage in political posturing, both in the USA and abroad. That posturing could have serious consequences for people who can’t be indicted under the law because they didn’t break it.
Going out of your way, in carrying out executive responsibilities, to invite consequences on people for actions that aren’t crimes, is the opposite of the rule of law. It’s executive power being wielded against citizens in a manner that is, effectively, unconstitutional. Once more: it doesn’t matter whether this is Obama’s or Holder’s intention. The possibility – in fact, the probability – of the effect is something that they should recognize, and rather than courting, seek to avert. This is a real world we live in, not a fantasy land in which activists can make a career of striking poses, at the expense of others, and never generate any actual consequences. The consequences are very real, and the damage to morale, and willingness to perform their jobs, among intelligence and law enforcement officials and career Justice Department lawyers, would be only the beginning.
“Whom Obama can’t indict, he gets Spain to indict for him.” If it happens on his watch, he will have done it himself. It’s quite obviously foreseeable; Andy McCarthy has outlined the process in excruciating detail. It can’t be argued that it wasn’t foreseen. Should US policy take such potential consequences into account? Do you even have to ask? That’s what the idea of “national security information” is all about: forestalling the consequences of other nations, and enemies foreign and domestic, knowing our national security business. There is no excuse for this decision. None.