The Obama administration will send five of the 9/11 plotters to New York City to face a criminal trial for their part in the terrorist attacks that killed almost 3,000 people. Among the terrorists to be tried is mastermind Khalid Sheikh Mohammed, perhaps the most notorious detainee currently at Guantanamo Bay. The decision will raise questions about security — and what Obama is prepared to do if prosecutors fumble the case:
Self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four other Guantanamo Bay detainees will be sent to New York to face trial in a civilian federal court, an Obama administration official said Friday.
The official said Attorney General Eric Holder plans to announce the decision later in the morning. …
Bringing such notorious suspects to U.S. soil to face trial is a key step in President Barack Obama’s plan to close the terror suspect detention center at Guantanamo Bay, Cuba. Obama initially planned to close the detention center by Jan. 22, but the administration is no longer expected to meet that deadline.
The New York case may also force the court system to confront a host of difficult legal issues surrounding counter-terrorism programs begun after the 2001 attacks, including the harsh interrogation techniques once used on some of the suspects while in CIA custody. The most severe method — waterboarding, or simulated drowning — was used on Mohammed 183 times in 2003, before the practice was banned.
Curiously, though, the White House has not abandoned military tribunals for some of the Gitmo detainees. Abd al-Rahim al-Nashiri, one of the terrorists behind the attack on the USS Cole in Aden nine years ago, will not face a criminal trial but will have his case adjudicated by the military tribunals at Gitmo. So will several other detainees, who will be named in by Attorney General Eric Holder later today.
So why bother to try the 9/11 “suspects” in the Big Apple at all? One rationale for the split could be that Nashiri attacked a military target while the 9/11 Five attacked civilians. However, the 9/11 plot also killed almost 200 people at the Pentagon, most definitely a military target. That alone justifies a military tribunal rather than a criminal trial for KSM and the others. Besides, if several of these terrorists get tried at Gitmo, trying the 9/11 plotters elsewhere isn’t going to close Gitmo any faster.
What do we get from having the 9/11 plotters tried in criminal court in New York City? Well, we get to have the city painted as a big, bright target for terrorist action during the entirety of the trial. Thanks to press coverage, which should be an order of magnitude more obsessive than the OJ Simpson trial in LA fourteen years ago, jihadists will come out of the woodwork to make a big international splash, or more likely a boom. We also give KSM and his cohorts a big, juicy media platform for their bile. That was one of their motivations for conducting the attack in the first place, and we finally get to deliver it to them.
Another rationale for exempting Nashiri has to do with evidentiary problems, as the Washington Post reports:
The case of one of the al-Nashiri is complicated by the fact that he is one of three detainees known to have been waterboarded during his interrogation. That means that some of the evidence obtained from him could be tainted. …
That leaves up to 75 individuals remaining at Guantanamo who could continue to be held under the laws of war because they are deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.
That brings up a key question. What happens if the judge throws out key evidence over nitpicky technicalities? What happens if KSM and others get found not guilty because of gaps in the evidence chain resulting from national-security issues or “evidentiary issues”? Will Obama let them walk away? If that happens, look for a massive amount of anger to overwhelm the naive Commander in Chief. And if Obama isn’t prepared to let them walk after a potential acquittal, then it makes a mockery of the criminal trial, and of the justice system itself.
These terrorists belong at a military tribunal, not the justice system employed for Americans to judge other Americans for civil criminal conduct. Instead of giving these men the oblivion they deserve, we’re incentivizing further attacks on the US by giving them the biggest possible PR platform. We may as well put them on TV and call it Dancing With the Terrorists, or So You Want To Be A Jihadist Martyr.
Update: As far as Nashiri goes (and I can’t believe it took me this long to remember it), the waterboarding issue doesn’t really fly as an explanation. Why? KSM got waterboarded, too, and Obama will put his fate in the hands of a criminal court.