Injustice Department

Attorney General Eric Holder’s decision to bring self-professed 9/11 mastermind Khalid Shaikh Mohammed and four of his alleged co-conspirators to trial in New York City is a disaster.  Barring a repetition in civilian court of an earlier confession, it is at least as likely that the terrorist known internationally by his initials, KSM, will be set free as it is that he will be executed for the murder of nearly 3,000 innocent Americans eight years ago.

As unlawful enemy combatants, Mohammed and his fellow jihadists are not entitled under the Geneva Convention to any judicial review.  President Obama himself has said that there are scores of individuals being held at Guantanamo Bay – the so-called "worst of the worst" – who cannot be tried but must nonetheless be detained indefinitely.  Such treatment should certainly be applied to a man who is arguably the very worst of the worst of the worst.

Mr. Holder’s insistence that KSM and Company should come to the very heart of the city that is the biggest target for international terrorism is flawed on so many grounds that it is hard to escape the conclusion that the decision has more to do with President Obama’s determination to close Gitmo than it does with ensuring justice is done.  After all, if the most dangerous of our enemies can be safely brought to America soil, why can’t the rest?

Consider just a few of the problems that seem likely seriously to complicate, if not preclude, the conviction of the 9/11 plotters:

• The moment they set foot in this country, all will be accorded constitutional rights to which they are not entitled – but from which they will extract considerable benefit.  For example, they will have access to the best defense counsel, men and women determined to use civil liberties designed to protect the innocent to secure release of the guilty.  Many of these lawyers comprise what is known as the "Guantanamo bar," including attorneys from Mr. Holder’s former law firm and some of his senior subordinates now responsible for detainee policy at the Department of  Justice.

• The attorneys will point out that, when apprehended, the accused were not read their Miranda rights.  That was because, of course, they didn’t have any.  But that was then and this is now.

• The terrorists’ lawyers will also try to exploit the government’s reluctance to compromise intelligence sources and methods, in the hope of ensuring that the cost to the national security of prosecuting their clients will become excessive. 

• The defense will work hard to reveal as much as possible of the enhanced interrogation techniques and other means used to extract information from hardened  terrorists like KSM.  In particular, they will endlessly trumpet the fact that Mohammed was subjected to one of those techniques – waterboarding – on over 180 occasions.  (Never mind that afterwards he divulged invaluable information that prevented new attacks, made it possible to roll up al Qaeda operatives and saved American and others’ lives.)  My guess is that the defendants will ask Messrs. Obama and Holder to testify on why they consider such a practice to be "torture."

Then, there is the probability that the defense will successfully argue that they can’t find an impartial jury in the city profoundly traumatized by the 9/11 attacks.  The Washington Times reported Monday that Sen. Jack Reed, Democrat of Rhode Island, believes "‘The people in New York who saw the towers fall’ would be the ideal people to judge the September 11 terrorists."  But will a federal judge agree?  And if not, will the security arrangements in the alternative venue be as good as we are assured they are in New York?

Speaking of security, as with the various locations where Team Obama is trying to dump the rest of the Gitmo detainees (including most recently an Illinois prison 150 miles from Chicago), the problem is only partly one of ensuring the prisoners are unable to escape.  The surrounding communities assuredly become higher-value, as well as inherently "soft" (read, easy), targets for further terrorist attacks.

Even if the likes of KSM can be safely confined in our prisons, that does not mean they pose no danger.  FBI Director Robert Mueller has publicly warned that such rock stars of the Shariah-mandated jihadist movement constitute a grave threat in our penal system as they inspire, recruit and train other prisoners. This is not a hypothetical risk:  Several recently uncovered terrorist plots in this country involved individuals who joined the jihad in American jails.

To be sure, if Khalid Shaikh Mohammed goes to trial in civilian court, he might again plead guilty.  Even if he does not, he might be convicted.  Years from now, he might even get the death penalty.

There are, however, real and unacceptably high risks associated with trying to secure such outcomes in U.S. federal court. 

One thing is clear already:  Neither American values, the families of those who lost loved ones on 9/11 nor rest of us are going to be well served by affording Mohammed and his co-conspirators a platform for waging lawfare and political warfare against us.  The proper way to deal with such unrepentant psychopaths who justify their murderous actions by Shariah is to include them in the group Mr. Obama intends to lock up forever without trial – and to do so at the most secure prison in the world: Guantanamo Bay.

Frank J. Gaffney, Jr. is President of the Center for Security Policy, a columnist for the Washington Times and host of the nationally syndicated program, Secure Freedom Radio.