Candidate Barack Obama urged a return to pre-9/11 counterterrorism-by-courts. President Obama’s Justice Department overflows with lawyers who spent the last eight years representing America’s enemies. Thus, Friday’s announcement that top al-Qaeda terrorists will be brought to New York City for a civilian trial is no surprise. That doesn’t make it any less inexcusable.
The treatment of jihadist terror as a mere law-enforcement issue, fit for civilian courts, was among the worst of the national-security derelictions of the Nineties. While the champions of this approach stress that prosecutors scored a 100 percent conviction rate, they conveniently omit mention of the paltry number of cases (less than three dozen, mostly against low-level terrorists, over an eight-year period, despite numerous attacks), as well as the rigorous due-process burdens that made prosecution of many terrorists impossible, the daunting disclosure and witness-confrontation rules that required government to disclose mountains of intelligence, the gargantuan expense of “hardening” courthouses and prisons to protect juries and judges, and the terrorists’ exploitation of legal privileges to plot additional attacks and escape attempts.
In placing the nation on a war footing after the September 11 attacks, the Bush administration invoked the laws of war to detain terrorists as enemy combatants and to try those who had committed provable war crimes by military commission — measures that were endorsed by Congress despite being challenged in the courts by some of the lawyers now working in Obama’s Justice Department. This military-commission system provided due-process protections that were unprecedented for wartime enemies, including the right to appellate review in the civilian courts. But they protected national-defense information from disclosure.
This commission system is tailor-made for the 9/11 plotters, including Khalid Sheikh Mohammed, the suicide-hijacking mastermind who is brazen in taking credit for that and numerous other attacks against the United States. In fact, last December, KSM and his four co-defendants indicated to the military judge that they wanted to plead guilty and move on to execution. But then the Obama administration swept into power and undertook to repudiate many of Bush’s counterterrorism practices, declaring its intention to close Gitmo within a year and forcing a moratorium on military commissions so the process could be “studied.” Friday’s announcement that KSM and the other 9/11 plotters will be sent to federal court in New York for a civilian trial is the most significant step to date in Obama’s determination to turn back the clock to the time when government believed subpoenas rather than Marines were the answer to jihadist murder and mayhem.
It is difficult to quantify how dangerously foolish this course is. As they demonstrated in offering to plead guilty while bragging about their atrocities, KSM and his cohorts don’t want a trial so much as they want a soapbox to press their grievances against the United States and the West. With no real defense to the charges, they will endeavor to put America on trial, pressing the court for expansive discovery of government intelligence files. Having gratuitously exposed classified information on interrogation tactics and other sensitive matters in order to pander to Obama’s base, the Justice Department will be in a poor position to argue against broad disclosure, even if it were so inclined. As the court orders more and more revelations, potential intelligence sources and foreign spy services will develop even graver doubts about our capacity to keep secrets. They will reduce their intelligence cooperation accordingly, and the nation will be dramatically more vulnerable.
Moreover, the transfer of the worst al-Qaeda prisoners into the U.S. will grease the skids for many, if not most, of the remaining 200-plus Gitmo terrorists to be moved here. This will be the worst of all possible outcomes. These are trained terrorists who have been detained under the laws of war, but most of whom cannot be tried because the intelligence on them cannot be used in court. We are still holding them because they are deadly dangerous and because no other country is willing to take them off our hands. Once inside the United States, they will indisputably be within the jurisdiction of the federal courts — which are staffed by judges predisposed against wartime detention without trial. As long as the terrorists were at Gitmo, those judges were reluctant to order them released into the U.S. — a transfer that would violate federal law. If the terrorists are already here, though, judges will not be as gun-shy. Inevitably, some will be freed to live and plot among us.
The Obama Left delusionally argues that running these risks will make us safer. The international community will see how enlightened we are, the fable goes. The hostility of America’s enemies will melt away. They’ll lay down their bombs and stop attacking us. As observed by former attorney general Michael Mukasey — who presided over terrorism cases as a federal judge — “We did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania. In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents.”