Here’s the biggest problem with the Obama administration’s decision to transfer Khalid Sheikh Mohammed and four other 9/11 jihadists to the civilian court system: It makes sense only if it’s being done for the wrong reasons — to provide a forum for the Left to use al-Qaeda as a vehicle to put the Bush administration on trial, to give the Left the “reckoning” that the Obama campaign promised before the 2008 election.
As a matter of law enforcement or national security, it is irrational. To demonstrate this, we need look no farther than the two principal justifications Attorney General Eric Holder has offered: the asserted need to end delay in seeking justice and the claim that a civilian trial provides the best chance for a successful prosecution.
On the matter of delay, let’s put aside for now the fact that, during the Bush years, Holder’s former firm — and many lawyers who’ve since been recruited into his Justice Department after years of volunteering their services to the nation’s enemies — used every arrow in the litigator’s quiver to delay, delegitimize, and derail war-crimes trials by military commission. Let’s also ignore the fact that by subordinating terror prosecutions to terror prevention — i.e., by prioritizing interrogation and the gathering of intelligence over appointing counsel and disclosing intelligence — we thwarted additional terror attacks and saved lives. Let’s just stick with what passes for the attorney general’s reasoning: that it has taken too long for the military courts to complete war-crimes cases and that we must change our approach to avoid unnecessary delay.
This contention makes no sense. It’s true that the trial of for KSM & Co. had not yet taken place when the Obama administration suspended the military case. But extensive commission proceedings have been under way for three years. A team of military and Justice Department lawyers has meticulously built the government’s case. The prosecutors have evaluated over half a million documents to determine admissibility and discoverability under commission rules. The elaborate process of obtaining security clearances for defense counsel had been completed, and counsel had been in place and working, notwithstanding the jihadists’ dalliance with self-representation. Tens of thousands of documents already had been provided in discovery. And, perhaps most significant, there had been extensive pretrial court hearings: over a hundred motions had been made by the accused war criminals, and those motions had been answered by the prosecution, meaning that they stood ready for the tribunal to consider.
Three years is not an unusual amount of time for all this necessary groundwork to be completed in the civilian system, certainly not in a national-security case involving voluminous foreign intelligence evidence. But here’s the thing: At this point in the commission proceeding, this work is finished. In the civilian court, by contrast, it has barely started. The terrorists have not even been indicted on a 9/11 case yet. In fact, they haven’t even appeared in court.
Even before they get to the Big Apple, the laborious, prohibitively expensive pretrial process has to start all over again. This will not be a simple matter of handing the file over to a different court that can then pick up where the commission left off. Despite secrecy rules, it has been reported that an extensive grand-jury presentation is now ongoing. In the military system, there would have been no need for this; the charges were filed eons ago. Now, new defense lawyers will have to be appointed and subjected to background investigations so that any security clearances needed to review the discovery are processed. (Even if the terrorists opt to represent themselves, the civilian court will have to appoint standby counsel in case they change their minds.) The new lawyers, for both sides, will have to go through the discovery for themselves. Moreover, the questions of what is discoverable and what is admissible will have to be completely rethought under (a) the new civilian indictment, which may be markedly different from the charges that were specified in the military court, and (b) the very different rules that apply in the civilian justice system. There are no shortcuts here: This has to start from scratch.
And that doesn’t begin to describe the delay. After a lengthy period to review discovery and for the defense counsel to conduct their own investigations (bank on this taking well over a year), the defendants will have an opportunity to make a plethora of motions to suppress evidence, obtain access to additional government intelligence, dismiss the indictment on speedy-trial and “outrageous government misconduct” grounds, etc. Many of these motions will call for evidentiary hearings. This is the years-long phase that nearly destroyed the civilian prosecution of 9/11 plotter Zacarias Moussaoui — and might well have succeeded in destroying it had he not unexpectedly pleaded guilty. KSM will not be fool enough to do that now that he has the Broadway stage he has always craved.
In sum, by moving the case to civilian court this far into the process, the Obama administration sinks down the drain the years of work that went into pretrial litigation in the military court — work that cost taxpayers untold millions of dollars. That is, despite that talk about avoiding delay, the administration has gratuitously saddled the public with years of wasted effort, years of extra work, and mountains of extra expense.
Now, let’s consider the purported “avoid delay” rationale in conjunction with Attorney General Holder’s other claim: that the civilian court provides the government with its best chance of obtaining convictions.
The military commissions were designed to make it easier for the prosecution to prove its case in a streamlined fashion. This was done with three wholly legitimate wartime aims in mind: to protect national-defense information from disclosure, to prevent the need to summon witnesses from the military and intelligence services, and to make certain that if accused war criminals deserved to be convicted, they would be convicted. That last point doesn’t mean they get no due process; it means war criminals should get the minimal due process necessary to make the trial fair while maximizing the chances that the most atrocious offenders will be found guilty.
In civilian court, defendants get huge advantages. Unlike military commissions, which permit the introduction of confessions so long as they are voluntary, civilian courts normally have Miranda warnings as a precondition of admissibility. These jihadists were not Mirandized. And this problem is even worse with KSM. The issue is not CIA waterboarding — coerced statements would not be admissible in either military or civilian trials. At issue, instead, are the extensive statements the terrorists voluntarily gave to the FBI. Specifically with respect to KSM, the complication is not only his Miranda right to counsel but his constitutional right to counsel under the Fifth and Sixth Amendments.
That is because, unlike the other 9/11 plotters, KSM has been under indictment in the civilian system since the mid-1990s. He was charged for the “Bojinka plot” to bomb U.S. airliners over the Pacific. Consequently, under the constitutional protections he gets in the civilian system, he was formally deemed an “accused” and became entitled to counsel even before he was captured and interrogated. That is, even if the Justice Department can somehow overcome the lack of Miranda warnings, KSM has an additional ground to seek suppression. In the military system, he was an unlawful enemy combatant with no constitutional shield; but as far as the civilian system is concerned, he was an indicted defendant who was denied the assistance of counsel by law-enforcement agents. Thus, he’ll contend, his confessions are inadmissible, even if he gave them voluntarily.
In his Senate Judiciary Committee testimony, the attorney general downplayed any admissibility problems concerning the statements. I strongly suspect he’s chest-thumping. Sure, with or without the confessions, the government can undoubtedly prove that KSM is guilty of membership in the al-Qaeda conspiracy. But this is a capital case: Success for the prosecution means not only proving guilt but convincing the jury to return a death verdict. Here, imposition of the death penalty will hinge on the government’s ability to explain KSM’s pivotal role in the 9/11 plot. The prosecution is likely to have a hard time doing that if it can’t put his statements to the FBI in front of the jury. And, for some of the lesser plotters, it may be difficult without the confessions even to establish guilt, let alone to obtain capital sentences.
Even if the prosecutors can surmount these challenges, the point is that they are real challenges. The confessions would certainly be admitted in the military commission; in the civilian court, it’s iffy at best. How could iffy be better for the case than certain?
The confessions are only the most obvious example of why the commissions offer a better chance of conviction. They are not the only example. In the commissions, hearsay rules are relaxed, the chain-of-custody requirement needed to authenticate evidence is more easily satisfied, provisions are in place to avoid the necessity of summoning soldiers and intelligence officers for testimony, and foreign intelligence services can more readily cooperate because the rules provide more leeway for keeping their assistance, and their secrets, secret.
Put it all together and it is no wonder KSM & Co. were ready, a year ago, to plead guilty in their military commission and proceed to execution. If the Obama administration had gone forward with the case, it would already be over.
The administration has taken a case that was ripe and ready for a swift, successful conclusion — a case in which prosecutors and the public had invested enormous effort and expense — and turned it into what will be a years-long struggle. At the end of that struggle, after terrorists have used our courts for three or more years to put our government on trial, the outcome will be less sure. Yes, convictions still will be likely, but capital sentences will be anything but certain. Indeed, civilian juries have already declined to hand down death sentences for Moussaoui and for two of the 1998 embassy bombers.
If the imperatives here are avoiding delay and improving the prosecution’s odds, the decision to shift to the civilian court system is irrational.