Monday, November 23, 2009

Ask the Neo-Con, Part XI

UPDATE: below

Long-time reader Powerboss asked my views on Attorney General Holder's decision to try Khalid Sheikh Mohammed in a New York City Federal District Court rather than have him face a military tribunal. This post touches on the practical problems with the decision while focusing on an erroneous legal presumption that's become widespread among lefties.

Background: For those who've been on Mars for a decade, KSM is:
A U.S.-educated engineer [who] had a government job in Qatar’s ministry of electricity and water when he was tipped off in 1996 that the Americans were closing in. In the nick of time, he fled to Afghanistan. That’s where Osama bin Laden, having recently worn out his welcome in Sudan, was just setting up shop.

The rest, as they say, is history. Years later, while confirming his status as an enemy combatant, KSM recounted how he’d become al-Qaeda’s "military operational commander" for all foreign operations, running the 9/11 attacks "from A to Z."
Captured in Pakistan in early 2003 and transferred to the Guantanamo Bay detention facility in 2006, KSM was "waterboarded" in five sessions of CIA interrogation. And he admitted he was OBL's chief deputy responsible for 9/11 and several other attacks and that he "decapitated with my blessed right hand" WSJ reporter "the American Jew, Daniel Pearl" (page 17-19). Last December, he wanted to plead guilty before a military tribunal, seeking to be executed. However, the United States wouldn't let him. With Obama about to take office, we worried that accepting KSM's guilty plea there could bar future prosecution in civilian criminal courts if the new President ended military tribunals for terrorists -- as he promised -- before KSM's conviction and appeal became final.

While KSM and some cohorts will be transferred to the Federal Courts, Holder decided to subject those who supposedly attacked the USS Cole to a military court.

Issues: Progressives and the partisan press applauded. The ACLU called Holder's decision "a major victory for due process and the rule of law," while the New York Times crowed that the civilian criminal trial would redeem the injustice of the Bush Administration. Conservatives were appalled over the risk of exposure of classified information, the potential logistical nightmare, and even the possibility that the trial could expose NYC to terrorist attacks. Further -- especially because supporters of the decision concede that the case could become a circus publicizing Islamic extremism and trying torture, not terrorism -- those on the right, such as Bush Administration lawyer John Yoo, see the move to a civilian court as "a Boon to al Qaeda."

Analysis: I agree that a civilian trial will make whether he was tortured and kidnapped the issue, as opposed to KSM's responsibility for mass murder. Which will be a disaster, as Andy McCarthy says on The Corner:
So: We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda's case against America. Since that will be their "defense," the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and -- depending on what judge catches the case -- they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see -- in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America's defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.
Yet, even should these practical problems (somehow) never arise -- and reasonable Democrat lawyer/author Stuart Taylor seems confident they won't -- many lefties start from fundamental assumptions that are both legally erroneous and contradicted by the Obama Administration itself.

First, supporters of the decision claim to be upholding the rule of law, specifically the Federal Constitutional protections KSM will have in a civilian trial. This is nonsense: there always has been parallel civil and military justice systems, used for different purposes, as a recent D.C. Circuit case explained (page 15):
Indeed, civilian justice and military justice differ in ways even as fundamental as the purposes that the two systems of justice serve. [O]ne of the purposes of military law, unlike civilian law, is "to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States."
Here, KSM and others, "were detained for interrogation and to prevent their participation in future terrorism," not primarily for punishment or rehabilitation. This should not be forgotten.

So it's no surprise that military tribunals are subject to different standards: the Supreme Court has determined that military courts fall outside the Sixth Amendment jury trial right and aren't Article III courts. Still, the American military justice system has ample procedural protections. If military justice is good enough for our soldiers, what's wrong with applying similar rules to KSM?

Nothing. International law treats terrorists just like pirates, which is the same as war criminals -- in the words of 16th-century jurist Alberico Gentili:
Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law.
Either Bush's or Obama's military commissions are far more deferential to defendants than that.

Second, those advocating a civil trial say they would rather see Mohammed face a New York jury than sit before a military tribunal because the attacks on Sept. 11 -- despite being aimed in part at the Pentagon -- were not "military infractions." Similarly, some claim the location of the terrorism matters, so attacks in the U.S. belong in civilian, not military, courts. Again, for belligerents, the precedent (Nazi spies arrested in New York, one a citizen) is to the contrary, as are the Geneva conventions (especially as to "unlawful combatants" such as terrorists). KSM, a non-citizen, plotted from the Middle East and was captured in Pakistan--insisting on full Bill of Rights protections extends the Constitution extra-territorially, something lefties typically decry as acting as the world's policeman.

Third, the Attorney General himself said the opposite:
The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions. Courts and commissions are both essential tools in our fight against terrorism.
Indeed, consigning other Gitmo detainees to military tribunals is an admission that such procedures can be just and lawful.

So the question becomes, as law prof Eric Posner argues, not "the rule of law" but the logic behind the choice of a civilian trial. Yet, I depart from Posner's conclusion, siding for once with Virginia Democrat Senator Jim Webb quoted in the Washington Examiner:
I have never disputed the constitutional authority of the President to convene Article III courts in cases of international terrorism. However, I remain very concerned about the wisdom of doing so. Those who have committed acts of international terrorism are enemy combatants, just as certainly as the Japanese pilots who killed thousands of Americans at Pearl Harbor. It will be disruptive, costly, and potentially counterproductive to try them as criminals in our civilian courts.

The precedent set by this decision deserves careful scrutiny as we consider proper venues for trying those now held at Guantanamo who were apprehended outside of this country for acts that occurred outside of the country. And we must be especially careful with any decisions to bring onto American soil any of those prisoners who remain a threat to our country but whose cases have been adjudged as inappropriate for trial at all. They do not belong in our country, they do not belong in our courts, and they do not belong in our prisons.

I have consistently argued that military commissions, with the additional procedural rules added by Congress and enacted by President Obama, are the most appropriate venue for trying individuals adjudged to be enemy combatants.
A few hypotheticals illustrate Webb's point: Should we have to read Bin Laden his Miranda rights? Holder waffled when Senator Graham asked--and KSM was interrogated without such warnings. Or what happens should KSM be acquitted--would they release him? Even Obama and Holder wouldn't go that far, suggesting they're withholding the presumption of innocence and reserving indefinite detention, despite the President's simultaneous commitment to full Constitutional protections. And, having spent years in Gitmo, hasn't KSM already been denied the right to a speedy trial? If so, the sole remedy is acquittal. Indeed, given the multiple departures from civilian criminal procedure, if KSM is convicted in New York, liberal civil liberties advocates arguably have the most to fear.

Conclusion: Historically, combatants haven't had a legal entitlement to a civilian trial. Yet neither are they flatly forbidden--we did so for attempted shoe bomber Richard Reid. So the question is whether they're justified here. Power Line's Scott Johnson says no:
[W]e can do a little reverse engineering to figure out how the enumerated factors are apparently applied by the Obama administration. If the attack occurred in the United States, it weighs in favor of criminal prosecution. If the attack focused on American civilians, it weighs in favor of criminal prosecution. (It is less clear to me how the other factors are weighed and applied in practice.) Application of these factors can convert heinous acts of war and war crimes into criminal offenses with respect to which the perpetrators are subject to the protections of the Constitution of the United States.

That way madness lies. The Obama administration is engaged in a venture that will simultaneously undermine the prosecution of the war in which we are engaged while it blurs the distinction between war and crime.
Charles Krauthammer agrees:
What a perverse moral calculus. Which is the war crime -- an attack on defenseless civilians or an attack on a military target such as a warship, an accepted act of war that the United States itself has engaged in countless times?

By what possible moral reasoning, then, does KSM, who perpetrates the obvious and egregious war crime, receive the special protections and constitutional niceties of a civilian courtroom, while he who attacked a warship is relegated to a military tribunal?
Just this, I think: as Stuart Taylor suggests (and supports), the real reasoning was deliberate deference to anti-American sentiment abroad.

In sum, the decision to try KSM in a New York Federal court isn't plainly illegal. Just profoundly illogical. Except as another example of Obama bowing to foreigners.


See also the San Francisco Chronicle's Debra Saunders: "I'm not scared of what KSM has to say in court either. I'm scared of what a federal judge might say and do."

(via American Power, Just One Minute, Volokh Conspiracy, News Busters, reader Doug J., reader Marc D.)


Bob in Los Angeles said...

There is also one Senator B. Obama from Illinois on the congressional record in 2006, saying that the military tribunal process will be fair and appropriate for KSH. As quoted on Rush Limbaugh show -- I cannot find the quote.

Anonymous said...

Carl, congratulated on another wonderful piece. I'm sending it to a couple friends.

O Bloody Hell said...

> (especially as to "unlawful combatants" such as terrorists).

The usual reposte to this deals with a 1958(?) commentary/treaty/whatever -- it's "official" -- on this from somewhere in Europe (Belgium? The Hague?) that pretty much denies this (or any reasonable) interpretation of unlawful combatants. It claims (IIRC) that someone must be covered either by civilian law or by the Geneva Conventions, even if one is in clear violation of every aspect of them.

Worth an update or comment to deal with, Carl.

Marc D. said...

Another remarkable post. I've stopped arguing with my friends -- I just send them a link to NOfP. This guy's got some great organizational skills.

Powerboss said...

Absolutely excellent. Great work Carl. Thanks so much for putting the enormous amount of time and energy into it that you did. It shows. Like the others, I've forwarded the article to many friends.

Carl said...

Thanks all!

OBH: I previously have explained why terrorists are neither POWs nor civilians under international law--among other things, they're not hors de combat. I'm not sure of the ~1958 document to which you refer. But the U.S. rejected the 1977 "Protocol I" that might have afforded additional rights--which implies that such protections are not customary international law.

Carl said...

Bob: I finally found that 2006 Obama quote:

"A military tribunal was a perfectly fine way of handling such dangerous individuals as Khalid Shaikh Mohammed."