Thursday, March 25, 2010

Making the Case for Military Tribunals (Again)

If the Obama Justice Department needs another reason to scrap plans for public trials of Al Qaida terrorists, consider the lastest audio tape from Osama bin Laden.

In a message released this morning, the terror leader threatened to kill any Americans captured by Al Qaida if the United States executes Khalid Sheik Mohammed, the mastermind behind the 9-11 attacks.

Bin Laden's promise was met largely with derision and even laughter. After all, Al Qaida has a long-stated goal of killing Americans, and most of our civilians and soliders who have been taken by the group have met a grisly fate. So, bin Laden's vow is hardly new or unexpected.

Why does the Al Qaida leader demanding better treatment for his former operations chief? Because bin Laden clearly recognizes the value of KSM as a symbolic figure, particularly if he receives a public trial in Manhattan. Legal proceedings against Khalid Sheik Mohammed would take at least two or three years--and possibly longer. That would give him an unparalleled opportunity to spew Al Qaida's message (and anti-American venom) in the media spotlight, providing a propaganda boon for the terror group and its followers.

Readers will note that bin Laden did not address the issue of how KSM will be tried. You don't need to be a counter-terrorism analyst (or ACLU) lawyer to understand that Osama bin Laden wants KSM--and other Al Qaida big fish--tried in a federal courtroom. Not only does that provide a media forum, it also forces the U.S. to spends hundreds of millions of dollars on security, and interrupt daily life in the nation's largest city. From the terrorist perspective, that's a win-win-win.

But beyond the rhetoric, bin Laden's latest message is also a direct challenge to President Obama and his Attorney General, Eric Holder. In recent months, administration officials have suggested that KSM will be found guilty and eventually executed for his crimes. Of course, both men have also opined that water-boarding is torture, and a federal judge might agree, meaning that evidence gathered via that interrogation technique would be inadmissible. That, in turn, would weaken the case against KSM. With today's tape, bin Laden is throwing down the gauntlet to Mr. Obama and Mr. Holder, practically daring them to put KSM on trial, and take a gamble on the outcome.

To be sure, an acquittal of the 9-11 architect is the most remote of possibilities, but a mistrial is far more likely, particularly if much of the evidence against KSM (obtained through enhanced interrogation) is tossed out. At that point, we will have given Al Qaida a global forum for a period of years, with the prospect of doing it all again. Presuming, of course, that a federal judge doesn't dismiss subsequent charges against KSM and order him released.

And don't believe it couldn't happen; until a few days ago, few believed that Al Qaida recruiter Mohamedou Ould Slahi would ever be a free man again. Slahi was one of the chief recruiters for the 9-11 attacks and played a key role in the failed Millenium bomb plot at Los Angeles International Airport. U.S. officials once described him as the "highest value detainee" at Guantanamo Bay. But a few days ago, Federal Judge James Robertson ordered him released. Slahi wound up in the civilian court system after military lawyers declined to prosecute the case, citing interrogation methods used on the accused terrorist.

That should be the final red flag for President Obama and his attorney general. Put KSM back where he belongs, in front of a military tribunal. Deny him (and Al Qaida) the global forum they so desperately crave, and reduce the prospects for legal maneuvering that might weaken or even undermine the case against KSM. Then, after the tribunal renders a guilty plea (and the requisite appeals are exhausted), put the 9-11 planner to death. He deserves nothing more--and nothing less.


planethou said...

"Slahi wound up in the civilian court system after military lawyers declined to prosecute the case, citing interrogation methods used on the accused terrorist."

Couldn't the same thing happen with KSM? Same interrogation methods were used.

lela said...

Brilliant analysis! There is nothing terrorists like more than free publicity and a chance to "spin" their message of hate. Military tribunals have suffered from a lack of clear leadership and mission, but they are the best mechanism for addressing detainees; not the Federal Court system!

Spook86 said...

Lela--I appreciate your kind words, given your decades of professional experience.

Plan--I don't think you can make the same case about KSM. He was on track for a military tribunal--and the military was prepared to handle the case--until Mr. Obama and Mr. Holder decided to intervene. Because of their waffling on the issue of civilian trials vs. tribunals (and their definition of "waterboarding as torture," I think a lot of military lawyers and judges are confused, and willing to hand the matter over to the Justice Department.

Additionally, I believe that some JAGs are worried they might face legal review or potential sanctions for their roles in the tribunals, particularly if some Justice Department or DoD official (or a federal judge) declares the tribunals are unjust. Lest we forget, the Obama Justice Department came very close to prosecuting Bush Administration lawyers for simply drafting memoes used to support enhanced interrogation techniques.

planethou said...

Spook86-- thanks for the additional good thoughts and explanation.