About (Saving) Face

Eight reasons why KSM will be tried by military commission.

Bill Burck and Dana Perino
Saturday, January 30, 2010

The end is near for the Obama administration’s plan to try KSM and four other 9/11 conspirators in federal court in downtown Manhattan. The handwriting was on the wall for weeks as the extraordinary costs of the trial — as much as $1 billion in security expenses alone over four or five years — became apparent and the Underwear Bomber reintroduced the American public to domestic terrorism. Then, Mayor Bloomberg told the administration that it should find someplace else to hold the trial. Now, me-toos have come from New York senators Charles Schumer and Kirsten Gillibrand, both of whom had previously supported the NYC trial.

It is a remarkable turn of events for Attorney General Eric Holder, who, the White House has said for months, made the decision alone and was running the show. The White House tired, far more quickly than many expected, of the AG’s bungled plan and realized that public opinion had turned decisively against the trial. Maybe the White House grew frustrated with the AG’s mistakes on national-security matters, from releasing the CIA interrogation memoranda last spring over the vociferous protests of former CIA directors who served under Presidents Bush and Clinton, to commencing a criminal investigation of CIA interrogators who had previously been informed by career prosecutors that they would not be subject to prosecution, to deciding to Mirandize the Underwear Bomber without consulting the intelligence services and charge him as a criminal defendant with all the rights of an American citizen.

The attorney general assured the White House that releasing the CIA memoranda would result in popular condemnation of Bush-era interrogation practices; instead, the American public met the memos with a collective shrug. Polls show that a majority of Americans support even the most aggressive enhanced interrogation techniques that the CIA uses. Investigating the interrogators thoroughly undermined the intelligence services’ trust in the administration, being as it was a betrayal of the president’s promise to our intelligence professionals to look forward, not backward. The decision exposed the new Justice Department leadership as nakedly partisan and more than willing to overrule the prosecutorial decisions of career prosecutors as a sop to the Far Left.

The White House realized it was staring another self-created disaster in the face and decided to pull the plug on the KSM trial before it was too late. The Justice Department is now scrambling to find an “alternative” venue; the administration continues to say that the president supports a civilian, not military, trial.

But the “alternative” venue won’t be in the United States. It will be Guantanamo Bay. And the trial will be by military commission, not civilian trial. After the jump are the top eight reasons for this, in no particular order:

1. Attorney General Holder, not President Obama, will take the fall. The White House hid behind the attorney general when the KSM trial was announced last November. The president said the decision was the attorney general’s alone, and the attorney general asserted he didn’t even consult the president before making it. It was hard to imagine the White House playing virtually no role in such an important policy (and political) decision, but it’s more plausible in light of the Justice Department’s unilateral decision to Mirandize the Underwear Bomber and charge him as a criminal defendant.

Now, President Obama can simply overrule the Attorney General and leave it to the media to chatter about the president’s displeasure with Holder. Remember that, according to press accounts, Greg Craig was pressured to resign as White House counsel in large part because he took the blame for misjudging the difficulty of closing Guatanamo. Is it worse to misjudge the bipartisan opposition to trying KSM by civilian trial?

2. The Martha Stewart Factor. Many observers noted that a civilian trial would provide KSM a platform on which to spout his views and justify his acts. Shortly after the decision was announced, the media reported that KSM and his co-conspirators were planning to plead not guilty and use the trial as a forum in which to attack U.S. foreign policy. The decision’s defenders pooh-poohed these concerns, mentioning among other things that there are no cameras in federal courtrooms. Any lawyer who has tried a case in a New York federal court, and anyone who has read a New York tabloid, knows that the absence of cameras in the courtroom will not do much to tamp down intense media coverage of the trial.

Look no farther than the trial of Martha Stewart, in which one of us participated as a prosecutor. Remember the spectacle of reporters running out of the courtroom waving red scarves to TV cameras as signals that Ms. Stewart had been convicted. The media scrutinized every aspect of that trial, which dominated the news for its entire six weeks. The KSM trial would dwarf all prior trials held in New York, in terms of not just the seriousness of the charges but also the size of the media circus that would accompany it. And the KSM trial would last months and maybe even years — it would almost certainly run right into the 2012 presidential campaign.

By contrast, at Guantanamo, it is not even clear there would be a trial, as KSM and his cohorts were previously willing to plead guilty and receive the death penalty rather than go through such a proceeding. In the event of a trial, the press would have access, but we doubt that Anderson Cooper would take up residence outside the base’s front gates.

3. KSM is more likely to be convicted and sentenced to death in a military commission. The attorney general and the president have confidently stated that KSM will be convicted. They are probably right, but civilian juries are notoriously unpredictable — Zacarias Moussaoui, the so-called 20th hijacker, escaped the death penalty because one juror out of 12 voted against it. Add to this that Holder himself has testified to Congress that, in his view, KSM was tortured by the CIA, an admission that defense lawyers will put front and center — both before the jury and in efforts to get the judge to exclude evidence. Evidence obtained by torture is not admissible in a military commission, either, but the government has greater flexibility in that forum as compared to a civilian trial.

This greater flexibility has ramifications beyond torture. Certain types of hearsay evidence would be admissible in a military commission but not in a civilian trial. The Obama administration very much appreciates the benefits to the prosecution of using a military commission — after all, they are using military commissions, not civilian trials, to try the terrorists against whom they believe they have weaker evidence, such as the men who plotted the attack on the USS Cole.

4. Guantanamo Bay is not closing any time soon. KSM’s civilian trial was always meant to be paired with the closure of Guantanamo Bay. The administration’s self-imposed one-year deadline was abandoned as unrealistic, but the wisdom of setting any time frame at all has been thrown into doubt by revelations that Abdulmutallab was trained by al-Qaeda in Yemen. Yemeni nationals make up the largest group of detainees still held at Guantanamo, and the Obama administration, at least for the time being, has ruled out repatriating them given the high risk that many of them would return to the fight. Bringing the most notorious terrorists to the U.S. for trial while the facility remains open is a lose-lose proposition for the administration. The American public will wonder why we are incurring the enormous costs and risks to public safety of trying KSM and the other 9/11 plotters in the U.S., when Guantanamo remains open for business and is indisputably a less expensive and far more secure location.

5. “Not In My Backyard.” The country is in full NIMBY mode. New York was the most logical place to hold a civilian trial because it is where most of the victims were murdered. With every major politician in the state now opposed to the idea, however, the administration is faced with the prospect of convincing political leaders in another state to host the trial. The options are further limited because the law requires that the crimes have some direct connection to the venue in which the trial would occur. Of course, there are isolated opportunists who would volunteer, but good luck getting a consensus from the entire political leadership of another state.

6. Congress will give the administration cover. Republicans in Congress have introduced bills that would bar the use of federal funds to try KSM and other terrorist detainees in federal civilian courts. These bills are getting significant bipartisan traction from Sens. Jim Webb and Joe Lieberman, among others. The administration will publicly oppose these bills, but will privately welcome them because their passage, or even the prospect of their passage, provides a ready excuse for them to throw up their hands and blame Congress for forcing it to backtrack on trying KSM in civilian court.

We’ve already seen this strategy in action with Guantanamo. The administration has conveniently pinned the blame for the abandonment of its goal to close Guantanamo by the end of January on Congress’s threats to block funds for the alternative holding facility in rural Illinois. Very little mention is made of the real causes of this failure — the administration’s miscalculations about the willingness or ability of other countries to take the detainees, and the opposition by most Americans to bringing terrorists to the United States for indefinite detention and possible release.

7. Trying some terrorists detained at Guantanamo in military commissions and others in civilian trials never made any sense. The attorney general sowed the seeds of the civilian trial’s demise by creating a two-track system in which terrorists who targeted civilians in the United States would receive more constitutional protections and rights than terrorists who targeted our troops overseas in active battle zones. This was the principal reason Holder gave for sending KSM to civilian court while the men who plotted the USS Cole attack went to a military commission. This distinction made no sense, created incentives for terrorists to attack civilians rather than troops, and now has proved too clever by half.

It is impossible for the Obama administration to provide a coherent explanation as to why KSM needs to be tried in civilian court. They can’t say they believe civilian courts are more legitimate than military commissions, because that would undermine military commissions. They can hint, through unnamed sources, that they are sending the “slam dunk” cases to civilian court and the weaker ones to military commissions with their more flexible evidentiary standards, but they can’t say that in the open without appearing to acknowledge what many critics have charged — the civilian trials will serve little purpose other than as show trials of the obviously guilty, while the real work of determining guilt or innocence will happen in the military commissions. If they had the courage of their purported convictions that terrorists who wage war on the United States are entitled to the same protections as common criminals, the administration would abandon military commissions altogether, rather than channel the more difficult cases to them. Unwilling to take this step, and in the face of bipartisan opposition to civilian trials, the administration will be left with no choice but to fully embrace military commissions for all Guantanamo detainees whom they wish to put on trial, including KSM.

8. Trying KSM in a military commission will kill the story before the midterm elections. The election of Scott Brown, who made his advocacy of enhanced interrogation techniques and opposition to trying KSM in civilian court central parts of his campaign, was a wake-up call that national security remains an important issue, particularly after Abdulmutallab’s failed attack, and one that does not favor the Democrats. The administration has begun to backtrack by signaling that the trial will not be held in New York City. Their next step will be to kill the controversy entirely by announcing that charges against KSM and his co-conspirators will be reinstated before a military commission. These charges were recently dismissed, but without prejudice, meaning the charges can be reinstated by the military more or less whenever it wants to.

Voila! Face saved.