Bill Burck, former federal prosecutor in New York City and deputy counsel to Pres. George W. Bush, warns about the coming trial of Khalid Sheikh Mohammed and what the administration can do about it in an interview with National Review Online’s Kathryn Lopez.
KATHRYN JEAN LOPEZ: Can the Khalid Sheikh Mohammed trial possibly be held in New York? Is that practical? Is that right?
BILL BURCK:New York is a resilient place, and Preet Bharara, the U.S. Attorney, is an excellent and dedicated public servant. New York can host this trial and survive the experience, but the real question is whether the Obama administration’s decision to prosecute the case as a federal criminal offense was the right thing to do. To my mind, the answer is clearly “no.” There’s no reason to believe that KSM and his cohorts will do anything other than what they have promised to do in the past — make a mockery of our system and use the platform of a federal criminal trial, with all the attendant worldwide media coverage it will receive, to proclaim their martyrdom to the world. This will not be about guilt or innocence or evidence. That will all be a sideshow to the main attraction — KSM putting America on trial to justify his acts of mass murder. To expect anything else is the triumph of hope over reason and experience – which is particularly absurd in this case because that hope rests on KSM’s willingness to cooperate with the procedures, rules, and norms of our criminal process. Somehow, I don’t think he will be particularly cooperative.
LOPEZ: What’s most outrageous about it?
BURCK: To me, the most outrageous aspect of this decision is that it completely turns the laws of war on their head. One simple but powerful idea that motivated the Geneva Conventions after World War II was that we needed rules to encourage more civilized behavior by combatants. A key motivator was the promise that combatants who follow certain rules would be guaranteed a minimum level of protections if they were captured in the course of the war. A defining rule was that you must not commit war crimes such as the deliberate targeting of civilians.
The Obama administration appears to believe this is not a particularly important incentive for combatants. They have distinguished between terrorists such as KSM who, from a safe distance overseas, target civilians in the U.S. for indiscriminate mass murder and yet receive the full protections of the U.S. Constitution for their efforts, and others who target military personnel and assets overseas but apparently deserve the lesser protections of the military-commission process (which is designed to comply with the Geneva Conventions, which generally provide somewhat less robust protections than our Constitution). There’s a good argument that neither type of terrorist deserves the protections of either the U.S. Constitution or the Geneva Conventions, but certainly the logic of the distinction makes no sense at all.