U.S. Attorney General Eric Holder has made the decision to try Khalid Sheikh Mohammed (KSM) — the self-admitted mastermind of the September 11 attacks — and four of his terrorist associates in downtown Manhattan, where the attacks they plotted killed nearly 3,000 Americans.
Attorney General Holder wants these terrorists, who are currently detained at Guantanamo Bay, to stand trial in a civilian court only blocks away from the site of the World Trade Center. The five accused terrorists, all of whom were captured on foreign battlefields, will be granted the same constitutional protections given to U.S. citizens in a regular criminal case. Attorney General Holder suggested that this is the courageous course of action because it shows that we will not “cower in the face of this enemy.”
That’s absurd, dangerous, and disingenuous.
On the same day that the attorney general announced that KSM would stand trial in New York, he said that five other terrorists would be tried in military commissions. Are we less courageous for prosecuting these enemies in military commissions?
Of course not.
The fact is, the choice between civilian courts and military commissions has nothing to do with courage. It has everything to do with the fact that military commissions are designed specifically for prosecuting terrorists and war criminals and civilian courts simply are not.
Military commissions have a long history, going back to the founding of our country, and have been used by many presidents, including Franklin D. Roosevelt, to prosecute war offenses. After the September 11 attacks, Congress authorized the use of military commissions to try those who had declared, and continue to wage, war on us.
For terrorists, such as those detained at Guantanamo Bay, military commissions are superior to civilian courts. They permit better protection of classified information, spare our communities the disruption that would come with a criminal trial in a civilian courtroom, and minimize the risk that a judge will order the release of a detainee into our country. But most importantly, military commissions are the right choice because they recognize that these individuals are dangerous terrorists who have committed acts of war against our country, not just common criminals.
Trials under the military commission system were under way for detainees at Guantanamo Bay, including for KSM. But, shortly after taking office, President Obama halted the military commissions. KSM had asked to plead guilty before a commission and be executed; but instead, he’s on his way to downtown Manhattan where he will be afforded rights and procedures that are unprecedented for a war criminal. Why not accept his guilty plea and be done with it?
Besides, it’s an unnecessary risk to bring KSM and other terrorists to New York City. Not only will the entire city be on alert, the trials themselves could hurt our efforts in the war against terrorists. As a result of the trial of the “Blind Sheik,” Omar Abdel Rahman, who plotted the first attack on the World Trade Center, al Qaeda obtained valuable information about U.S. intelligence sources and methods. That made the job of fighting terrorists more difficult. And imagine you’re a juror and you vote to convict. You’ll need lifetime protection; and you’d better hope it works.
When Attorney General Holder testified before the Senate Judiciary Committee on Nov. 18, he expressed confidence that the terrorists would be brought to justice in New York City. I expect they will, but the decision to try them in a civilian court instead of a military commission only delays justice for the families of 9/11 victims. And, most important, it suggests, incorrectly, that the atrocities that were committed on 9/11 were something other than an act of war.
Sen. Jon Kyl is the Senate Republican Whip and serves on the Senate Finance and Judiciary committees. Visit his Web site at www.kyl.senate.gov or his YouTube channel at www.youtube.com/senjonkyl.