Politics & Policy

Tom Brady & KSM

Advice from experience.

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.

#ad#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.


But most amazing and hard to comprehend is that the current administration believes that KSM and his cohorts deserve more rights than even uniformed enemy combatants who actually follow the rules, avoid targeting civilians, and generally conduct themselves in accordance with the laws of war. No constitutional protections for them, just the Geneva Conventions. It’s a rare and uncommonly destructive feat to extend the reach of U.S. constitutional protections for American citizens to unlawful, non-citizen, enemy combatants captured overseas — which has never been done before in this country’s history for good and sane reasons – and at the same time completely undermine the incentives combatants have to follow the rules and standards we expect of them even in the heat of battle. The lesson is simple, awful, and completely upside down — if you fight in uniform in a recognized war zone, attack military targets, do your best to avoid civilian casualties, and get captured, the most you can hope for is the protection of the Geneva Conventions. But if you plot the mass killing of American civilians from a location overseas, you will enjoy far more protections. To paraphrase KSM when he was captured in 2003 and mistakenly believed at the time that he would be treated like a common criminal rather than a war criminal (he was, in fact, turned over to the CIA for interrogation back in 2003), you’ll get to come to New York and get a lawyer, not to mention all the other rights and protections our Constitution gives defendants. Unfortunately, it turns out that KSM was prescient.

#ad#LOPEZ: The president told NBC’s Chuck Todd in China: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.” Is there any way to guarantee that?

BURCK: There is no way to guarantee that. The judge and the jury will make those determinations, and neither the president nor the attorney general has any power to dictate the outcome of a federal criminal trial. I do believe that there is a lot of evidence against KSM; in fact, he may not wish to contest the charges in a conventional way and instead essentially proclaim his guilt but insist on a trial as a platform for his views. This would not be dissimilar to Moussaoui’s trial.

But remember two indisputable facts: Attorney General Holder has gone on record that he believes waterboarding is torture; and it is now known that KSM was subject to enhanced interrogation techniques, including repeated use of waterboarding. KSM’s lawyer will almost certainly ask the judge to throw out all the charges against him because he was allegedly tortured. How can the Department of Justice contest that KSM was tortured if the attorney general has gone on record that waterboarding is torture? They can’t. Jose Padilla and other convicted terrorists have sought to have charges thrown out on the basis of the so-called “outrageous government misconduct” doctrine, and so far they have not been successful (in Padilla’s case, however, the government did not concede that he had been abused). But no one can really dispute that there are some judges who would give serious consideration to KSM’s request based on his supposed torture, and there is at least some case law that supports it. That doesn’t mean he would be released if he were to get the charges dismissed – the Obama administration (I hope) would exercise other authorities available to it to keep KSM in some form of custody. But there is no doubt that once the grand jury returns an indictment, the prosecutors lose a lot of control and the most important decision-makers are the judge and the jury.

LOPEZ: Further: Is that the way the justice system should work? Nevermind war?

BURCK: Our federal criminal-justice system is premised on the complementary notions that all defendants are presumed innocent and the burden of proving the defendant’s guilt beyond a reasonable doubt rests solely and at all times with the government. Those principles will apply no less to KSM than they do to any other criminal defendant. I sincerely hope that shoving KSM into the criminal process won’t create bad precedent that helps convict KSM but undermines the rights and protections that Americans accused of crimes currently have. But we are already seeing unusual behavior for a criminal case. Typically, federal law-enforcement officials like the attorney general keep their public comments about criminal cases to a minimum because, for example, they do not want to be accused of tainting the jury pool. Federal prosecutors learn that you do 99 percent of your talking about a criminal case in the courtroom and only in the courtroom. The attorney general and the president are being remarkably free about predicting KSM’s conviction and execution — and discussing the facts of the case against him – given that this is a criminal case. KSM’s lawyers will likely argue to the judge that he can’t receive a fair trial in part because of their pre-trial comments.


It is, in general, entirely appropriate for the president and the attorney general, as our nation’s leader and top law-enforcement official, to express their honest views about KSM in whatever way they wish and however often they wish. But they have opened themselves up to significant criticism and possibly defense motions for continuing to talk so much about a case that they have decided to prosecute in federal criminal court. Strictly speaking, their comments should be limited to: “KSM is presumed innocent until proven guilty, and we look forward to proving the government’s case against him in a court of law.” That’s obviously unacceptable as a matter of political reality, and the American people deserve a far more robust and forthright statement from our leaders about what they think of KSM. But it’s what they should be saying as a matter of law-enforcement policy, now that they have chosen to treat this terrorist like a criminal.

LOPEZ: Didn’t Moussaoui come short of the death penalty?

BURCK: Yes, he was sentenced to life imprisonment without the possibility of parole because one juror, out of 12, believed he did not deserve death. The jury has to be unanimous to return a death sentence.

#ad#LOPEZ: Was that trial a disaster?

BURCK: I’m not sure I would characterize it as a disaster. Certainly the prosecutors did as good a job as humanly possible under incredibly challenging circumstances. What made it so difficult was Moussaoui’s conduct — he was impossible to control and made the trial an absolute circus. And, remember, he eventually pleaded guilty to the charges. So there was ultimately no suspense about his guilt, only what sentence he would receive. I can’t even imagine how much more effective KSM will be at turning his trial into a circus since he is, by all accounts, far more intelligent, devious, and articulate than Moussaoui.

LOPEZ: Should that be a warning?

BURCK: Absolutely, it’s a huge red flag and unfortunately as good a hint as we’re likely to have of what KSM’s trial might look like. KSM certainly knows how effective a relative mental midget like Moussaoui was in disrupting his trial. I expect KSM has learned from that. There’s only so much a judge can do to control a defendant’s behavior at trial — KSM has a right to attend his trial except under very exceptional circumstances and an absolute right to testify if he wants to.

LOPEZ: How did Eric Holder do in the Senate last week?

BURCK: The attorney general is a good speaker and very effective advocate for his and the president’s policies. But he seemed strangely unprepared on at least two topics — he had no coherent answer at all to Senator Graham’s questions about what he would recommend doing with Osama bin Laden if he were captured. He seemed flummoxed by the questions, which is surprising, as I’m sure he spent a lot of time with his staff preparing for the hearing and Senator Graham’s line of questioning was easily foreseeable. He also had a very unsatisfactory answer to the question of whether he believed it made sense to give terrorists who target civilians the full protections of the U.S. Constitution, while those who attack military targets overseas receive fewer due-process protections. His answer was something along the lines that he does not make value judgments, but only looks at the evidence. That is a particularly odd response because prosecutors make value judgments all the time in deciding what charges to bring against defendants. And it betrays a fundamental disconnect with the laws of war, which are premised on making precisely those types of value judgments about what types of combatants deserve more protection than others.

LOPEZ: How can the White House fix this?

BURCK: Admit their error and call the whole thing off. Use the military-commission process if they want to try KSM — that’s what it’s there for. History, legislation, and common sense all support it. And also, stop hiding behind the attorney general. Everyone is sticking to the script that it was the attorney general’s decision, but as a White House veteran, albeit in a different administration, I know that a decision of this magnitude could not have been made without the explicit or tacit support of the White House and the president. The president should step in and say that he is overruling the attorney general (or, really, reversing his own decision). That is not going to happen, of course.


LOPEZ: Is this Justice Department departing from the previous one in dangerous ways?

BURCK: I’ve been happily surprised by the amount of continuity in certain areas, like electronic surveillance under the FISA-reform legislation passed near the end of the Bush administration and their support for renewal of certain key provisions of the PATRIOT Act. But the administration’s decision to release the CIA interrogation memos has, according to numerous CIA directors who served under Democratic and Republican presidents, seriously damaged the morale of our intelligence community. And this most recent decision to try KSM as a common criminal has different, but equally pernicious, consequences. The tragedy is that these are all unforced errors by the administration.

#ad#LOPEZ: Is Eric Holder proving to be problematic as AG? Could Republican senators who voted for his confirmation have seen this coming (as some did)?

BURCK: I watched much of the attorney general’s testimony during his confirmation hearing. I have seen very little that is surprising. If anything, I believe that he was generally quite open and honest about his views and how he intended to perform his duties.

LOPEZ: Are you surprised how outspoken former attorney general Judge Mukasey has been on KSM?

BURCK: I’m not surprised at all. Judge Mukasey has made his views known for a long time that federal courts are generally a poor venue to try terrorists who are at war with the United States. There is no one on Earth with more practical experience on the subject or who has given as much careful thought to it – he was, of course, the judge who presided over the trial of the Blind Sheikh. Even though that trial ended successfully with convictions of the defendants, Judge Mukasey has explained at length the many dangerous deficiencies in the federal criminal process that make it particularly unsuited for trying committed enemies of the United States. The current administration should think long and hard about what Judge Mukasey has to say on this topic. It’s like Tom Brady offering free advice on how to win a Super Bowl. But I fear they are not listening.

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