The prosecution team I led in 1995 convicted the notorious Blind Sheikh and 11 others for conspiring to wage a terrorist war that included the 1993 World Trade Center bombing and attempting (unsuccessfully) to attack New York City landmarks. Consequently, some observers seem puzzled that I'm a vocal critic of civilian trials for our terrorist enemies. But they are confusing litigation success with national-security success. So is the Obama administration in deciding to transfer Khalid Shaikh Mohammed and four other 9/11 plotters to federal court in Manhattan.
We certainly can convict terrorists in civilian court. We've done it too many times for that to be a serious issue. It's also indisputable that the U.S attorney's office in Manhattan, where I was privileged to work for 18 years, is without peer in the expertise needed for such complex prosecutions. I have every confidence the Justice Department could convict KSM & Co.
The problem on this ride is not the destination; it's the journey.
We are in a hot war, overwhelmingly authorized by Congress, against vicious enemies still plotting attacks that could dwarf the carnage of 9/11. To deal with war crimes, Congress in 2006 endorsed military commission trials, which have a rich pedigree in our history, are fully consistent with our Constitution, and better enable us to withhold intelligence methods and sources.
Indeed, the Obama administration concedes that military commissions are sound: Attorney General Eric Holder has announced that the bombers of the warship Cole will face one.
From a legal standpoint, it makes no sense to try the Al Qaeda quintet in civilian court. Eleven months ago, these men were prepared to plead guilty in their military commission and proceed to execution. Yet the Obama administration pulled the plug on that commission. This was a transparent sop to the left, which wants to judicialize war-fighting and is repulsed by the intelligence-centric, prevention-first counterterrorism strategy that has protected us for eight years from a reprise of the 9/11 atrocities.
Now, our enemies will be given a full-blown civilian trial with all the rights of the American citizens they are sworn to kill. They will get a year or more to sift through our national defense secrets. They will have wide latitude to turn the case into a trial of the Bush administration - publicizing information about anti-terrorism tactics that leftist lawyers will exploit in their quest for war crimes prosecutions in foreign courts against current and former U.S. officials.
In the military system, we could have denied them access to classified information, forcing them to accept military lawyers with security clearances who could see such intelligence but not share it with our enemies. In civilian court, the Supreme Court has held an accused has an absolute right to conduct his own defense. If KSM asserts that right - as he tried to do in the military commission - he will have a strong argument that we must surrender relevant, top-secret information directly to him. And we know that indicted terrorists share what they learn with their confederates on the outside.
Finally, as policy, the administration's decision is perverse. A half-century of humanitarian law, beginning with the Geneva Conventions, sought to civilize warfare. To receive enhanced protection, combatants must adhere to the laws of war and refrain from targeting civilians. Under Obama-logic, the Cole bombers get a military commission while the 9/11 savages are clothed in the majesty of the Bill of Rights.
So here's the message to terrorists: If you kill thousands of civilians, we will give you better rights than if you attack military assets. That is dangerously irresponsible.
BTW, An overwhelming majority of New Yorkers believe the jihadis who planned the 9/11 attacks should and will be sentenced to death. This does not belong in civilian court.