Webb: Criminal trials for 9/11 terrorists a bad idea

posted at 2:20 pm on November 13, 2009 by Ed Morrissey

Byron York at the Washington Examiner has Senator James Webb’s repudiation of the Obama administration decision to try Khalid Sheikh Mohammed and four other 9/11 figures in a New York City courtroom (emphasis mine):

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.

That succinctly makes the case most of us have been making all day.  Those who had committed any “crimes” within the jurisdiction of American criminal courts in connection to the 9/11 attack died in their suicide attacks.  The “suspects” facing trial now committed acts of war, not crimes, and they committed them outside the jurisdiction of the US court system.  Congress wrestled with this problem twice, and twice reached the solution: military tribunals or “commissions” for adjudicating the cases of KSM and his cohorts.

Webb’s dissent is remarkable for a couple of different reasons.  First, he’s the best the Democrats have in the Senate for national security.  He served in the Reagan administration and had built a great deal of credibility on the subject, which is why Virginians felt comfortable narrowly electing him over George Allen in 2006 — with the help of the Washington Post and the “macaca” meme.  His dissent on this topic will sting, and it should.

It won’t change the trajectory of this case, unfortunately.  After making such a public show of announcing the trials, there’s almost no chance that the White House will change its mind and return to the military tribunals for KSM and the other four “defendants.”  Webb does demonstrate, though, just how far outside the mainstream on national-security thought Obama is now, and sets up a big I-told-you-so if something goes terribly wrong at the trial.  No one can say that Obama didn’t get warned, even by his own side.


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…Gillibrand defending it.

Wethal on November 13, 2009 at 2:33 PM

Gillebrand is already on record defending the Holder/Obama decision.

onlineanalyst on November 13, 2009 at 3:45 PM

I want to go back to the good old days.

Originalism and all of that.

Mr. Joe on November 13, 2009 at 3:46 PM

It seems Webb is following orders from the White House on this.
There is no way the WH mediamachine is not controlling both Webb and Holder

macncheez on November 13, 2009 at 3:42 PM

I would not be too sure of that. Jim Webb is a notorious loose cannon with a towering ego. Nobody controls him. He covets his title of Mr. National Security in the Senate and he thinks he will be there a lot longer than Barack Obama will be in the White House. He sponsored legislation to try to bring some statutory order to the military trials, partly because he expected KSM and the rest of the 9/11 plotters to be tried by one and wanted to make sure they were seen as legitimate and fair. The White House has severely undercut him with this prosecution and he isn’t going to take it quietly.

rockmom on November 13, 2009 at 3:49 PM

macncheez on November 13, 2009 at 3:28 PM

Nothing. Just POWs and Civilians.

The Calibur on November 13, 2009 at 3:50 PM

Can’t wait until this guy is replaced. He never should have been elected, what the hell is makaka anyway?

Daemonocracy on November 13, 2009 at 4:04 PM

Go, Webb. He is 100% right on this. And I hope he is loud about it.

Missy on November 13, 2009 at 4:04 PM

He’s also up for re-election in 2012. He knows that he’ll be back to writing creepy kiddie porn if he doesn’t step up. Let’s not forget that Virginia also was a site for 9/11/01 atrocities.

highhopes on November 13, 2009 at 2:27 PM

We, here in Virginia, haven’t forgotten it. Which, I suspect, is why they aren’t going to be tried here. We have a death penalty and we aren’t afraid to use it! (a la DC sniper day before yesterday!)

vapig on November 13, 2009 at 4:06 PM

Webb knows there is a huge (HUGE) potential downside to the Donks in this, not the least of which is a re-focusing of casual voters limited attention spans on the minute by minute events of 9/11.

The MSM and the Donks have done a masterful job of anesthetizing the public to the palpable pain and fear of 2001-2002. Now the Obama Administration seems to be inviting it back into the collective consciousness.

This is a huge political miscalculation based on appeasing the Hard Left.

There is no way this ends well.

Bruno Strozek on November 13, 2009 at 4:11 PM

From Rush….

“Eric Holder said these terrorists will be tried by ‘a jury of their peers.’ These guys are not citizens! Who the hell are their peers? The only one I can think of is Chris Matthews.”

reshas1 on November 13, 2009 at 4:11 PM

Gillebrand is already on record defending the Holder/Obama decision.

onlineanalyst on November 13, 2009 at 3:45 PM

She says what Chuck Schumer tells her to say, and he is in favor of it.

Rudy Guiliani has already issued a statement condemning Holder’s decision.

Wethal on November 13, 2009 at 4:19 PM

Thanks Donks for giving us free of charge more rope to hang you idiots with.

I hope this trial is a circus so that it can all be pinned back on the Obama administration.

November, 2010 is gonna be a bloodbath, and so is 2012.

Fools.

Sapwolf on November 13, 2009 at 4:30 PM

These guys are guilty before proven innocent?
What’s the trial for?

Cybergeezer on November 13, 2009 at 3:41 PM

Done the same way the Enemy Party and all other libs say that, just because we oppose their precious Party and Messianic guy in the White House, we’re all subversives.

Turnabout is fair play.

But they don’t like that at all, do they? So much for the liberal concept of ‘love’, ‘fairness’ and ‘transparency’.

Then again, we got the transparency: Obama, the Enemy Party as a whole, and all libs are anathema to true liberty.

Liam on November 13, 2009 at 4:39 PM

Did Timothy McVeigh commit an act of war?

orange on November 13, 2009 at 4:40 PM

Did Timothy McVeigh commit an act of war?

orange on November 13, 2009 at 4:40 PM

No. He was a domestic TERRORIST and a mass-murderer because of his sick beliefs. He was former Army but, at the time, acting as a citizen (and I choked writing that last word)

McVeigh got what he deserved–sort of. He should have been hanged, and I imagine you agree with that.

Liam on November 13, 2009 at 4:43 PM

Did Timothy McVeigh commit an act of war?

orange on November 13, 2009 at 4:40 PM

You are purposely trying to draw an equivalence where none exists, to support your ideology. Yes, I know you’ll deny that but that’s more expression of your unfairness, which you don’t even see. Ideology first, reason at bottom of your list.

I can tell you a story of a small fight I had because Hasan deserves all rights to a fair trial, when others like me want him summarily hanged. I can’t accept that. Hasan, as a
citizen in the military, should enjoy every right allowable by whatever jurisdiction tries him. O got into a bit of Dutch, but that’s okay.

No, I’m a Conservative who believes in the rule of law. Libs like you seek to contravene that precept, for your sick ideology. You’re so far into it you can’t hold true reason. Cons like me–people against whom you have shown disregard–have a basis: the Constitution and Original Intent.

Other libs infecting this site are the same as you, tho you’re not as abusive of them. But, you’re really all the same.

Liam on November 13, 2009 at 4:55 PM

KSM and his ilk will draw a sympathetic anti-Bush judge, and a jury of ignorant NY upper-west side dem libs who will acquit and turn these scum loose to do it again.

bannedbyhuffpo on November 13, 2009 at 4:59 PM

What is it going to take for the majority of people in this country to realize that Obama is not just a liberal and leftist but an enemy of this nation?

justltl on November 13, 2009 at 5:08 PM

What the finding of ‘unlawful enemy combatant’ does is put forth that those under that heading do not fall under the GC: that is the laws of war as we accept them via treaty agreement, and finding them to be unlawful combatants means they do not fall under the GC, until that determination they are given status as a combatant equivalent but the status hearing is important as given in GC III, Art. 5. Thus when given a hearing as pursuant to GC III, Art. 5, any person who falls into the provisions of the GC get its safeguards, those who do not and wage unlawful war do not get its safeguards. Until such time GC IV, Art. 6 is guiding.

The finding for the Death Penalty for those waging war against an occupying power would be under GC IV, Art. 68 of which the second paragraph is key:

The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty against a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.

KSM is definitely in this category of persons who have committed acts that are international offenses under the laws of war. The finding by the tribunal for the unlawful enemy combatant does not absolve KSM or any others captured of findings under GC IV, Art.68.

The place that he should not be tried for such crimes of international offense during war is a civilian court.

But then that would mean keeping to the GC, finding him to be an unlawful combatant, addressing the nature of his crimes that got him that status via a second tribunal and then following that with either continued captivity or execution based on the nature of those crimes. For they are war crimes. He may have done civil crimes before that, but when at war and committing such acts against civilians, that is a war crime.

ajacksonian on November 13, 2009 at 5:09 PM

All this crap going on, especially promulgated my American Leftists here on this site, is that we should withdraw from the Geneva Convention and be done.

Liam on November 13, 2009 at 5:14 PM

And another thing for you libs:


A nation of sheep will beget a government of wolves.

Edward R. Murrow

Liam on November 13, 2009 at 5:17 PM

Mayor Guiliani is speaking on Sean Hannity right now.

The former NY Mayor knows better than anyone WHAT A HUGE MISTAKE IT IS TO TRY KSM AND HIS COHORTS IN A MANHATTAN COURTROOM!

THIS IS A HUGE, HUGE, HUGE MISTAKE.

HOW CAN WE STOP HOLDER AND HIS FELLOW IDIOTS FROM PERPETRATING THIS TRAVESTY?

bannedbyhuffpo on November 13, 2009 at 5:45 PM

Did Timothy McVeigh commit an act of war?

orange343 on November 13, 2009 at 4:40 PM

Translation: I can’t credibly defend this latest legal action by the guy who brainwashed me into voting for him, so I will change the subject to something that happened 14 years ago.”

Del Dolemonte on November 13, 2009 at 6:10 PM

What is it going to take for the majority of people in this country to realize that Obama is not just a liberal and leftist but an enemy of this nation?

justltl on November 13, 2009 at 5:08 PM

You don’t want to know the answer to that question.

Del Dolemonte on November 13, 2009 at 6:11 PM

I don’t trust this bungling administration to run the trial cleanly.

What if KSM gets off on the proverbial “technicality?” I guess we’ll all be waiting for him at our neighborhood bus stop.

desertdweller on November 13, 2009 at 6:16 PM

KSM and his ilk will draw a sympathetic anti-Bush judge, and a jury of ignorant NY upper-west side dem libs who will acquit and turn these scum loose to do it again.

bannedbyhuffpo on November 13, 2009 at 4:59 PM

The chances of it happening are infinitesimal, but I would love to see Federal Judge Harold Baer get this case. He’s a Clinton appointee.

But he ruled in 2003 in a case that Iraq played a role in 9/11, so would obviously be disqualified from consideration.

Del Dolemonte on November 13, 2009 at 6:21 PM

They could put KSM in a cell with an ObamaCare violator.

jgapinoy on November 13, 2009 at 7:04 PM

Has anyone speculated on what effect this will have on our diplomatic relations with many countries?

Will our legal attaches (usually FBI agents) be PNG’d on the assumption that we are acting to enforce OUR laws on THEIR soil?

Will US servicefolk in transit be arrested at X airport and tried for ‘crimes’ that were not committed on the host country’s soil, but in Iraq and Afghanistan?

If we can try people in our civilian courts for crimes that were committed on another country’s soil, then other countries may decide that they can, too.

What would Hugo Chavez do with that idea? Would Obama be strong enough to resist successfully in such an instance?

ElRonaldo on November 13, 2009 at 7:07 PM

You know what else is a bad idea? Jim Webb as a Senator.

Republican on November 13, 2009 at 8:21 PM

Webb’s dissent is remarkable for a couple of different reasons. First, he’s the best the Democrats have in the Senate for national security…

Which is why he is totally unconcerned about the expansion of the Saudi Academy in his own backyard?

Connie on November 13, 2009 at 8:24 PM

McVeigh got what he deserved–sort of. He should have been hanged, and I imagine you agree with that.

Liam on November 13, 2009 at 4:43 PM

He should also have been waterboarded to find out more about who else was involved in the planning. I still think they killed him too soon. We don’t even kill regular murderers as quickly as he got it.

Either they didn’t care what else he knew or were trying to shut him up.

Now. Where’d I put my tin foil hat?

TugboatPhil on November 14, 2009 at 12:23 AM

Either they didn’t care what else he knew or were trying to shut him up.

Now. Where’d I put my tin foil hat?

TugboatPhil on November 14, 2009 at 12:23 AM

It sure does make you wonder, and I try not to go anywhere near tin foil. It did happen very fast, considering.

whbates on November 14, 2009 at 2:10 AM

I admire Webb, he’s just on the wrong side. I believe he’s an honest man, and the longer he’s in the party of BS, I think one day he will jump ship to the Republican side. He’s a tenecious guy and would be a nightmare to the Socialists when he does make the jump. This administration is corrupt enough that this might happen sooner than later.

adamsmith on November 14, 2009 at 8:59 AM

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