Politics & Policy

Congress Can Stop the KSM Trial

If the president will not reverse himself, Congress should.

There is no justifying the Obama administration’s decision to grant a civilian trial to Khalid Sheikh Mohammed and four other 9/11 plotters who carried out the deadliest act of war ever committed on U.S. soil. The president must not grant the worst of war criminals the same constitutional rights enjoyed by the nearly 3,000 U.S. citizens they massacred on 9/11. If he won’t reconsider, Congress must act.

Beginning in the Revolutionary War, it has been recognized throughout our history that wartime enemies are not mere criminal defendants. When they commit provable war crimes, they are tried by military commission, a process that permits them fewer rights than a civilian trial while shielding more national-defense information from disclosure to the enemy.

As the Obama administration concedes, we are a nation at war. After the 9/11 atrocities, Congress overwhelmingly authorized the use of military force. In 2006, at the urging of the Supreme Court, Congress put the military-commission system originally ordered by President Bush on firm legislative footing. The Obama administration not only acknowledges the validity of this system, Attorney General Eric Holder has announced that the bombers of the U.S.S. Cole (who murdered 17 members of our Navy in October 2000) will be tried in it, even though this attack is the subject of a pending civilian indictment.

When he was first captured in Pakistan six years ago, KSM sneered that he expected to be brought to New York and given a lawyer. Instead, he was treated as an enemy operative, interrogated by the CIA, and induced to disclose intelligence that saved lives.

Yet the Obama administration, after eleven months of unnecessary delay, now proposes to void the commission and transport the jihadists from the remote security of Guantanamo Bay to the stage KSM has always craved: federal court in Manhattan. There, KSM & Co. will be swaddled in the protections of the Bill of Rights and given a soapbox from which to mock their victims and our country. And that will happen only after they are given a year or two to rifle through sensitive government files during the civilian discovery process. In fact, representatives of these “defendants” have already announced that they now plan to plead not guilty so that they can exploit civilian legal procedures to put America on trial.

Now not only are we saddled with the relative leniency of the civilian legal process — civilian juries have failed to impose the death penalty in the country’s last two capital terrorism cases — but we also face the likelihood that KSM will seek to represent himself, as he did in the military commission. Why is that important? In military court, we had the capability of imposing on accused war criminals a military defense lawyer with an appropriate security clearance. Terrorists might have opted not to use these lawyers, but they had to accept them if they wanted their defense to have the benefit of access to relevant classified information. By contrast, in civilian court, a defendant has an absolute right to represent himself, a right the Supreme Court has long upheld. If the terrorists make this demand, they will have a very strong argument that civilian due process requires that they be given direct access to our intelligence.

The last time al-Qaeda was in Manhattan’s federal court for a trial, one terrorist attempted to attack the presiding judge in the courtroom, and another maimed a prison guard in an escape attempt, stabbing him through the eye while attempting to abduct his taxpayer-funded lawyers during a trial-prep session.

Furthermore, while incarcerated in our civilian prisons, terrorists have a history of plotting, inspiring, and orchestrating acts of terror. The 1993 World Trade Center bombing was planned in New York’s Attica prison, as were related plots to kill political officials and a judge. Osama bin Laden has publicly credited the notorious Blind Sheikh, Omar Abdel Rahman, with issuing the fatwa approving the 9/11 attacks from the U.S. prison where he is serving a life sentence. Sheikh Abdel Rahman’s attorney was herself convicted for helping him communicate with his Egyptian terrorist organization. Following Abdel Rahman’s commands that they make efforts to free imprisoned jihadists, his followers have carried out murderous attacks, including one in Luxor, Egypt, in which 57 tourists were killed.

Perhaps worst of all, the Obama administration’s decision to grant KSM & Co. a civilian trial betrays the civilizing imperatives of humanitarian law. For centuries, the laws of war have strived to protect civilians by rewarding combatants with benefits for confining their attacks to military targets. Yet, the Obama administration is giving the Cole bombers a military commission while the 9/11 attackers, who murdered civilians in addition to attacking the Pentagon, get the gold-plated due process of the civilian courts. This is simply perverse.

President Obama must reverse this reckless decision. If he fails to do so, the people’s representatives must explore their options. The Constitution grants Congress control over the jurisdiction of the federal courts: Our lawmakers have the power to restrict enemy combatants to trial by military commission for war crimes. Through the power of the purse, Congress can deny funding to transport enemy combatants into our country and to try them in our civilian courts. The civilian trial of KSM and the other 9/11 plotters does not have to happen, and we should make sure it doesn’t.

– Rep. Michele Bachmann is a member of the House of Representatives from Minnesota. Former federal prosecutor Andrew C. McCarthy is a senior fellow at the National Review Institute.

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