Attorney General Holder has several times offered a spirited defense of federal prosecutors — including expressions of confidence that KSM and the other jihadists will be convicted. This is a strawman: There’s no reason to defend people who are not being attacked, and conviction is not the issue.
As it happens, Preet Bharara, the new U.S. Attorney for the Southern District of New York, worked for me for a while when he was a new prosecutor. He is superb. There isn’t the slightest doubt in my mind that he and the assistant U.S. attorneys he assigns to the KSM case will do an excellent job and uphold the high standards and traditions of the Southern District and the Justice Department. I’m also very confident that KSM and the others will be convicted.
For what it’s worth, I think the team I led in the Blind Sheikh case did an excellent job, and we also convicted everybody. But that is not the measure of success. It’s not whether the government wins the litigation; it’s whether the national security of the United States has been harmed more by having the trial than it would have been harmed by handling the detainees in a different manner.
What made the United States most vulnerable in the Nineties was our enemies’ perception that they were at war and we were not. They gave us bombs, we gave them rights. That encouraged them to attack us more often and more audaciously — which is exactly what they did.
If we are at war, and the Attorney General said this morning that we are, we have to treat it like a war. Pressed by Sen. Graham this morning, the AG could not name a single time when, during war, we captured an enemy combatant outside the U.S. and brought him into the United States for a civilian trial — vesting him with all the rights of an American citizen. That’s because hasn’t happened. That’s not how you treat wartime enemies.
Further, if we are going to have military commissions at all (and Holder says we will continue to have them), it makes no sense to transfer the worst war criminals to the civilian system. Doing so tells the enemy that they will get more rights if they mass-murder civilians.
The question is not whether the prosecutors are able, whether they’ll do a spectacular job, and whether they’ll get these guys. They are extraordinarily competent, they will perform at a very high level, and I’ll be shocked if they don’t win the case. The issue is: What damage will we sustain by doing things this way, and is there a way we could do them without sustaining that much damage?