There are many reasons not to put KSM and other foreign terrorists on trial in American courtrooms on American soil:
1. I’m sure that the NYPD and FBI is more than capable of keeping the trial safe and the prisoners secured; the chance of terrorists staging some kind of successful prison break is less than minimal. But that security will come at a steep financial cost both to the taxpayers of NYC, but also to the American taxpayers. How much more expensive will it be to transport and guard the prisoners under these conditions than it would be to keep them atGitmo and try them under military tribunal? I haven’t seen any figures, but I figure that several hundred police officers collecting months or years worth of overtime will add up. The federal law enforcement presence that will bolster the NYPD will cost more money and divert the attention of agents from the important task of keeping the country safe. Will KSM escape? Almost certainly not. But making sure he doesn’t will be an expensive and unnecessary waste of money when we already have a secure location to keep and try these terrorists.
2. The trial will provide a stage for the terrorists and their (probably radical) lawyers to put the United States on trial. While proponents of the “criminal court trial” scenario portray this as a process that will rehabilitate America’s world image, that’s unlikely to be the case. If we allow the terrorists and their lawyers a full range of arguments and questions, then the trial will make a mockery of American justice. The trial will become a farce. If the radical lawyers are constrained to a point where they can’t turn the trial into a farce, then the process will be denounced as rigged and unfair. Whether or not Americans believe that the trials were unfair, the arguments will resonate with the very audience of international progressives that Obama is hoping to impress.
3. While it’s unlikely that any terrorist cell could break KSM or any terrorist out of jail on American soil (especially after we spend the additional millions to secure), those same militants may try other violent acts to try and force America to release the terrorists. By having the trial on American soil, we’re increasing the risk to American civilians.
4. Are we willing to provide full time security to the KSM jurors for their rest of their lives?
5. And a criminal trial under existing rules will put every spy and asset we have trying to penetrate al Qaeda at an enhanced and unnecessary risk of being found out. In a recent Wall Street Journal op-ed,
John Yoo pointed out just how much a criminal trial could hurt our anti-terrorism efforts.
Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.
Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.
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KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens—including the right to demand that the government produce in open court all of the information that it has on them, and how it got it.
Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.
This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the “blind Sheikh”), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.
In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr.
McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.
Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.
Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the “crime scene” under battlefield conditions? Will they have to take statements from nearby “witnesses”? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.
The Obama administration has rejected the tool designed to solve this tension between civilian trials and the demands of intelligence and military operations. In 2001, President George W. Bush established military commissions, which have a long history that includes World War II, the Civil War and the Revolutionary War. The lawyers in the Bush administration—I was one—understood that military commissions could guarantee a fair trial while protecting national security secrets from excessive exposure.
6. Under the rules of our criminal courts, these cases could drag on for years as defense lawyers demand sensitive information and intelligence agencies fight to keep that information from the lawyers.
The masterminds behind the 9/11 attacks and other terrorist bombings are not bank robbers and crack dealers. They are not American citizens to be accorded the same rights we give to a car theif. They are foreign fighters, but they aren’t even soldiers. They wear not nations uniform. They don’t deserve either the constitutional protections offered to a common street hood, or the Geneva Convention protections accorded to uniformed soldiers.
There is no legitimate reason to bring these terror suspects onto American soil or try them in American criminal courts. We should leave the where they are and try them there.