James Galyean is a former federal prosecutor and former counsel on the US Senate Judiciary Committee. He helped draft both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, which dealt with the detention, interrogation, and trial of Guantanamo Bay terrorist detainees. He is currently running for Congress in the 3rd Congressional District of South Carolina.
The administration’s decision to try Khalid Sheikh Mohammed in federal criminal court in New York shows that President Obama is not serious about our national security.
KSM conceived, planned, and launched the attacks that killed thousands of American citizens in a war that he and other terrorists declared. He is an avowed enemy of the United States. The criminal justice system is not the proper place to determine his fate. Our criminal courts provide protections to our citizens that should not be provided to a terrorist, and may actually damage national security.
Just think about the discovery requirements that could be placed on prosecutors. For instance, in the trial of the 1993 World Trade Center bombers, prosecutors were required to turn over to defense lawyers a large amount of intelligence information. Documents from that discovery production, which were never supposed to be provided to anyone outside the defense team, were later found in an al-Qaeda hideout. Let me say that again, confidential documents from a trial in New York were later found in the hands of al-Qaeda.
Now consider that KSM was captured in a lightening raid in Pakistan. The intelligence that led to that capture has been the subject of a number of reports. However, al-Qaeda would love to know for sure where that information came from and how it was obtained. In addition to that, they may be able to learn a number of other things from discovery in this trial.
Consider for a moment the constitutional strictures regarding coerced confessions. Think a liberal judge might want to explore whether waterboarding is too coercive? Or being held in one of the CIA's black prisons?
Even if the prosecutors have developed their case without relying on any information derived from those waterboarding sessions, the defense lawyers will still have a field day with the issue. They will demand access to all of the intelligence gathering efforts used over the last several years, the black prisons, the waterboarding sessions, the renditions, and any information received from foreign intelligence sources. In short, everything. And they will probably get a lot of it. It will be a windfall for al-Qaeda like no other. Not to mention all the liberal legal groups that want to start headhunting for CIA interrogators, Special Forces personnel, and former Bush Department of Justice lawyers. And in the end, if a judge finds the case has been tainted by waterboarding and other intelligence efforts, the case may falter.
Which may, after all, be the point. The Obama Administration just approved new rules for military commissions. The President’s new rules make obtaining a conviction much more difficult, maybe impossible in some cases. The new rules require that a defendant be allowed access to any classified information used against him. This may prevent a number of trials from going forward if the military decides it cannot afford to “burn” the method or source of the information. And since the new rules are now the President’s rules, it would be his fault if the terrorist were not convicted, or perhaps not even tried.
But, by moving these cases to federal court, if the case fails for some reason, the administration could once again beat the dead horse excuse that “it’s Bush’s fault” for torturing them and ruining the evidence against them. And with the terrorists in the United States now, a liberal judge might want to maintain jurisdiction over them. Any subsequent orders by the court would not be the President’s “fault,” even the ordered release of the terrorists to foreign countries.
So, to recap, the President gets to look tough on terrorists but yet respectful of their constitutional rights, releases a lot of classified information liberal groups are salivating for, and dodges responsibility for the ultimate outcome. The hat trick.
It’s true that elections have consequences. Americans should remember that in the coming months.