WHAT were President Obama and Attorney General Eric Holder thinking when they decided to try Khalid Sheikh Mohammed, the chief architect of the 9/11 attacks, and four other al-Qaeda bigwigs in a civilian court in New York City?
From the standpoint of politics, this decision makes no sense. According to a CNN/Opinion Research Corp. poll released Monday, only 34 percent of Americans support the decision to try the al-Qaeda leaders in a federal district court. Sixty-four percent say they should be tried by a military commission, as the Bush administration planned to do.
“The decision to bring Khalid Sheikh Mohammed in front of a civilian court is universally unpopular — even a majority of Democrats and liberals say that he should be tried by military authorities,” said CNN polling director Keating Holland.
The decision is unlikely to grow more popular with time. At a minimum, a highly publicized trial will remind Americans of the 9/11 attacks, something Democrats have been encouraging us to forget.
The potential consequences for the United States of extending to these terrorists the constitutional rights afforded U.S. citizens in a civil trial are grave.
The legal status of the al-Qaeda bigwigs — none of whom is a U.S. citizen — was that of unlawful combatant. In attacking the World Trade Center and the Pentagon, they committed an act of war, but did so in a manner which deprives them of prisoner-of-war status under the Geneva Convention of 1949.
To be recognized as lawful combatants, irregulars must meet four criteria, the Geneva Conventions state. The criteria are “(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; and (d) that of conducting their operations in accordance with the laws and customs of war.”
The al-Qaeda bigwigs fail to meet three of those four criteria, and thus, under international law, are entitled only to such “rights” as their captors are willing to extend to them. And now Mr. Obama and Mr. Holder have decided to give them the rights of American citizens.
The most consequential of those rights is that of discovery — the right of American defendants to see the evidence the prosecution has against them.
“Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information and his relationships to fellow al-Qaeda operatives,” wrote former Justice Department official John Yoo in the Wall Street Journal last week.
“The information will enable al-Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering and to push forward into areas we know nothing about.”
The concern isn't hypothetical. Andrew McCarthy, who prosecuted the blind sheikh, Abdel Rahman, after the 1993 World Trade Center bombing, was required to turn over to defendants a list of 200 possible co-conspirators which, he said, apparently was delivered to Osama bin Laden within days of its production as a court exhibit.
Mr. McCarthy declined to prosecute another suspect in that bombing for fear the intelligence loss through discovery outweighed the benefits of a conviction.
To fail to turn over intelligence sought through discovery is to run the risk that KSM and his co-conspirators might be acquitted on a technicality. But to release them from custody would be political poison for Democrats.
The administration would have to keep holding them even if they are found not guilty. But that would make a mockery of the main reason Mr. Holder has given for trying them in federal court: that a civilian trial would showcase U.S. justice.
Even if no vital intelligence is disclosed to al-Qaeda, a civilian trial will be a propaganda fest, as was the trial of the “20th hijacker,” Zacarias Moussaoui.
Former Justice Department official Shannen Coffin thinks the real reason for a civilian trial is that President Obama hopes KSM and his lawyers will attack the Bush administration.
“The decision to try KSM in civilian court accomplishes indirectly what Obama does not wish to do directly — it puts the Bush administration's interrogation tactics on trial for all the world to see,” Mr. Coffin said. This would be red meat for the liberal base. But it's unlikely to be popular with centrists who are already unhappy with Mr. Obama's economic policies.
This has been the most political administration in modern times. Ten months after his inauguration, Mr. Obama still behaves more like a candidate than a president. But in pursuing his vendetta against his predecessor at the expense of American security, he may be campaigning to be a one-term president.
Jack Kelly is a columnist for The Blade and the Pittsburgh Post-Gazette.
Contact him at: jkelly@ post-gazette.com