The Obama administration's decision to treat the 9/11 terror attacks as a matter for our civilian court system stands as a propaganda victory for al-Qaida and jeopardizes national security. It has been cheered by such clarions of the left as the New York Times Editorial Board. It also contradicts the President's own remarks about how the most notorious Guantanamo Bay detainees should be dealt with.
While Barack Obama was a senator debating the Military Commissions Act of 2006, he argued Khalid Sheikh Mohammed, the confessed 9/11 mastermind, should receive a military trial because he is a war criminal. Now that he is President, and Eric Holder is Attorney General, the Obama administration seems to want to curry favor with the liberal legal establishment rather than the American people.
Much of the debate on this issue misses the point, however. It is not to show how fair the American justice system is - that has been proven again and again. But our civilian court system was designed to protect the rights of American citizens. There are procedures that have grown up over the years such as the reading of rights to an attorney prior to questions that must be scrupulously followed by civilian authorities from the point of arrest to the point of trial that, if violated, can be the basis for acquittal. Arresting officers and the interrogators who follow them are trained in the application of these procedures. It is literally absurd to apply such procedures to the military capture of enemy combatants. Can you imagine a soldier on the battlefield capturing an enemy combatant and saying "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to be speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense." That's not how to run a war, even an unconventional war such as that against Al Qaeda, and it's not how to bring war criminals to justice.
In addition to procedures which have grown up over the years to protect the rights of American citizens, there is an enormous body of precedents that govern the court system. Think for just a moment about concept of a trial by a jury of peers of the accused. Precedent argues that if the jury is comprised of persons sufficiently different from the accused, that the accused may be acquitted. Who is a peer of Khalid Sheikh Mohammed? Do you really want to assemble 12 of them in a jury? And what sort of person would be able to say that he or she was entirely open-minded about the guilt or innocence of someone who was involved in the most horrific act of terrorism and mass murder ever perpetrated on American soil? What sort of people would be living in New York City and this part of its jury pool that had so little awareness of the 9/11 attacks that they could credibly claim to be open-minded about them? In the Senate debate of 2006, then-Senator Obama said that he did not want to give Khalid Sheikh Mohammed a "whole bunch of rights," but as president he has done just that by allowing his attorney general, Eric Holder, to treat him and his co-defendants as common criminals protected by the U.S. Constitution.
It is ironic that someone like President Obama, who claims to be both a legal and a Constitutional scholar, and decried George W. Bush for his alleged violations of the Geneva Conventions, now seems intent on ignoring his own prior legal analysis of Khalid Sheikh Mohammed's case.
The military tribunals were not set up as so-called kangaroo courts. The term Kangaroo Court was so named after judges who hopped from place to place conducting sham trials that amounted to unfair, biased, or hasty judicial proceedings that ended in a harsh punishment. The military tribunals were replete with safeguards to ensure fairness, but without rules of evidence and a body of precedent that were expressly based on civilian rather than military crimes and situations. The Barack Obama of 2006 understood the gravity of the situation, but the Barack Obama of 2009 has chosen to ignore his own legal advice and treat 9/11 as if it were a common crime with Khalid Sheikh Mohammed as just another common criminal.
His decision to try Khalid Sheikh Mohammed in civil court is a transparently political move to appease the far-left. The 9/11 attacks were an act of war against the United States by a terrorist group that considers itself in a state of war with us. War criminals belong in a military court. Trying Khalid Sheikh Mohammed in a civil court could tie up our federal courts for years without any assurance the self-confessed 9/11 mastermind will be convicted due to how the evidence against him was collected. John Yoo, a former Justice Department official whose expertise includes interrogation techniques said, "Trying Khalid Sheikh Mohammed in civilian court will be an intelligence bonanza for al-Qaeda, tie up our courts for years . and further cripple our intelligence agencies' efforts to fight terrorists abroad."
The reason for incarcerating and then trying terrorists at Guantanamo Bay was to keep them away from U.S. soil, thus eliminating any questions about the need to grant them all the rights of a U.S. citizen. Zacharias Moussaoui, who by contrast was captured here and thus was granted access to our civilian court system, was able to tie up the court system for years due to his constant demands to see the intelligence that had been obtained against him, and the trial only ended because he decided to plead guilty.
The Obama administration has set a dangerous precedent that will only embolden al-Qaida and reinforce its view of America as weak and thus further endanger those who are fighting for our nation. It ranks as one of the worst decisions of an administration that seems to want to set a record for bad decisions.
Commentary by Colin A. Hanna
Let Freedom Ring