Injustice Department

Frank Gaffney is the Founder and President of the Center for Security Policy in Washington, D.C. The Center is a not-for-profit, non-partisan educational corporation established in 1988. Under Mr. Gaffney's leadership, the Center has been nationally and internationally recognized as a resource for timely, informed and penetrating analyses of foreign and defense policy matters.

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Injustice Department
Center for Security Policy
Nov 16, 2009
By Frank Gaffney, Jr.

Attorney General Eric Holder's decision to bring self-professed 9/11 mastermind Khalid Shaikh Mohammed and four of his alleged co-conspirators to trial in New York City is a disaster. Barring a repetition in civilian court of an earlier confession, it is at least as likely that the terrorist known internationally by his initials, KSM, will be set free as it is that he will be executed for the murder of nearly 3,000 innocent Americans eight years ago.

As unlawful enemy combatants, Mohammed and his fellow jihadists are not entitled under the Geneva Convention to any judicial review. President Obama himself has said that there are scores of individuals being held at Guantanamo Bay - the so-called "worst of the worst" - who cannot be tried but must nonetheless be detained indefinitely. Such treatment should certainly be applied to a man who is arguably the very worst of the worst of the worst.

Mr. Holder's insistence that KSM and Company should come to the very heart of the city that is the biggest target for international terrorism is flawed on so many grounds that it is hard to escape the conclusion that the decision has more to do with President Obama's determination to close Gitmo than it does with ensuring justice is done. After all, if the most dangerous of our enemies can be safely brought to America soil, why can't the rest?

Consider just a few of the problems that seem likely seriously to complicate, if not preclude, the conviction of the 9/11 plotters:

The moment they set foot in this country, all will be accorded constitutional rights to which they are not entitled - but from which they will extract considerable benefit. For example, they will have access to the best defense counsel, men and women determined to use civil liberties designed to protect the innocent to secure release of the guilty. Many of these lawyers comprise what is known as the "Guantanamo bar," including attorneys from Mr. Holder's former law firm and some of his senior subordinates now responsible for detainee policy at the Department of Justice.

The attorneys will point out that, when apprehended, the accused were not read their Miranda rights. That was because, of course, they didn't have any. But that was then and this is now.

The terrorists' lawyers will also try to exploit the government's reluctance to compromise intelligence sources and methods, in the hope of ensuring that the cost to the national security of prosecuting their clients will become excessive.
The defense will work hard to reveal as much as possible of the enhanced interrogation techniques and other means used to extract information from hardened terrorists like KSM. In particular, they will endlessly trumpet the fact that Mohammed was subjected to one of those techniques - waterboarding - on over 180 occasions. (Never mind that afterwards he divulged invaluable information that prevented new attacks, made it possible to roll up al Qaeda operatives and saved American and others' lives.) My guess is that the defendants will ask Messrs. Obama and Holder to testify on why they consider such a practice to be "torture."

Then, there is the probability that the defense will successfully argue that they can't find an impartial jury in the city profoundly traumatized by the 9/11 attacks. The Washington Times reported Monday that Sen. Jack Reed, Democrat of Rhode Island, believes "‘The people in New York who saw the towers fall' would be the ideal people to judge the September 11 terrorists." But will a federal judge agree? And if not, will the security arrangements in the alternative venue be as good as we are assured they are in New York?

Speaking of security, as with the various locations where Team Obama is trying to dump the rest of the Gitmo detainees (including most recently an Illinois prison 150 miles from Chicago), the problem is only partly one of ensuring the prisoners are unable to escape. The surrounding communities assuredly become higher-value, as well as inherently "soft" (read, easy), targets for further terrorist attacks.

Excerpt: Center for Security Policy