White House Floating Flip-Flop On Civilian Trial For KSM

After proclaiming that civilian trials will prove the solidity of our criminal justice system, the White House is reportedly about to decide to try Khalid Sheikh Mohammed, the self-proclaimed mastermind of 9/11, and four other detainees in a military tribunal.

The move would be a major reversal in the terrorism case. Attorney General Eric Holder announced weeks ago that Mohammed and four other detainees would be tried in a civilian court in New York. Fierce political opposition to the plan appears to have prompted an about-face.

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Holder maintained that the defendants would get a fair trial in civilian court, but he was forced to spend hours defending his decision before lawmakers on Capitol Hill. He insisted that the civilian court system was the place “where the government will have the greatest opportunity to present the strongest case in the best forum.” Republicans and even some Democrats begged to differ.

Those who attacked Obama and Holder for initially favoring civilian courts forgot that “Mr. 9/11,” Rudy Giuliani, praised the decision to try 9/11 accomplice Zacarias Moussaoui in Alexandria, VA in 2002.  And four suspects in the 1993 World Trade Center bombing were tried and convicted in federal court on Giuliani’s mayoral watch. The current military commission system, established in 2001, has resulted in three convictions in eight years.  Jim Comey, who was deputy attorney general and deputy US attorney in Manhattan during the Bush administration, and Jack Goldsmith, a Bush administration assistant attorney general defend the use of civilian courts.

Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.

In terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant’s ability to raise irrelevant issues and tightly controlling the courtroom.

And with stricter rules of evidence in civilian courts there is less likelihood that a defendant can claim he was railroaded.  As Judge Andrew Napolitano has noted, Congress never declared war after 9/11, but rather an Authorization for the Use of Military Force.  Nevertheless, the Bush administration claimed it had extra-constitutional powers because it was wartime, and could detain suspects it deemed dangerous without attorneys or trials. Five Supreme Court challenges favored the rights of the detainees over the Bush administration. Our 5th Amendment to the Constitution requires due process, and the 6th Amendment requires that the venue for that due process must be where the harm was allegedly done.

Think about it: If the president could declare war on any person or entity or group simply by calling his pursuit of them a “war,” there would be no limit to the government’s ability to use the tools of war to achieve its ends. We have a “war” on drugs; can drug dealers be tried before military tribunals? We have a “war” on the Mafia; can mobsters be sent to Gitmo and tried there? The Obama administration has arguably declared “war” on Fox News. Are Glenn Beck, Bill O’Reilly and I and my other colleagues in danger of losing our constitutional rights to a government hostile to our opinions?

By: Alan

Alan Colmes is the publisher of Liberaland.