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.
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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?
