Try KSM and al Nashiri at Gitmo now for their war crimes

President Barack Obama and Attorney General Eric Holder believe the enemy has Constitutional rights. So far, the Supreme Court has not agreed with that assertion. We should put the theories to the test by trying al Nashiri and Khalid Sheikh Mohammed at Gitmo now.

When Holder brought Ghailani to federal court for trial, he did so knowing a federal judge might not allow the seller of the TNT to testify as he was first identified during Ghailani’s detainee interrogations. Instead of railing against bestowing Constitutional rights upon non-U.S. persons who wage illegal war, Benjamin Wittes and Jack Goldsmith seem to argue we should just wait the enemy out in their op-ed today in the Washington Post:

The government had a difficult time convicting Ghailani in large part because presiding Judge Lewis Kaplan excluded a key witness that the government had acknowledged it knew about through coercive interrogations. Many critics of civilian trials claim that this problem would not have occurred in a military commission, but that is very probably wrong. The legal standard for excluding such evidence in military commissions would depend on the military judge’s sense of the “interests of justice.” The government would be foolish to rely on military judges’ willingness to admit evidence obtained – even in a derivative fashion – as a result of coercion. There is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a commission.

Imagine that Ghailani had been acquitted on all counts. The administration would then have faced a terrible choice between releasing him or — as the attorney general and Judge Kaplan have said is possible — continuing to hold him in military detention indefinitely despite his acquittal. The first option would be unsafe for the nation and suicidal politically. The second option would look terrible in light of an acquittal and would harm the legitimacy of every subsequent terrorist trial.

This terrible choice — which came close to becoming a reality — reveals why military detention is fundamental and appropriate here. The reason the first option is unsafe and the second option is available is that Ghailani helped conduct a major terrorist operation on behalf of a group with which the country is at war. Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation.

As civilians, Ghailani, al Nashiri, and KSM all waged illegal war against the United States by attacking our embassies, the USS Cole, and both civilians and military personnel on 9/11. If no evidence exists to support those assertions, then both President Bush and President Obama had no inherent or Congressional authority to continue to hold them as detainees. Yet abundant evidence exists that all three committed war crimes resulting in the deaths of U.S. persons.

The Supreme Court reaffirmed the President’s authority to indefinitely detain the enemy back in 2004 so their detention is not at issue. That war crimes were committed, they require an accounting, and America’s enemies should not be afforded Constitutional rights are the issues.

Attorney General Holder declined to prosecute Ahmed Ghailani for his post-9/11 activities as a member of al Qaeda. It is telling that Holder announced last year that U.S.S. Cole bomber al Nashiri would be brought to a military commission in the United States only to let the DOJ withdraw those charges in August 2010, as the Washington Post reported:

[C]ritics of military commissions say the Nashiri case exemplifies the system’s flaws, particularly the ability to introduce certain evidence such as hearsay statements that probably would not be admitted in federal court. The prosecution is expected to rely heavily on statements made to the FBI by two Yemenis who allegedly implicated Nashiri. Neither witness is expected at trial, but the FBI agents who interviewed them will testify, said Nashiri’s military attorney, Navy Lt. Cmdr. Stephen C. Reyes. “Unlike in federal court, you don’t have the right to confront the witnesses against you,” he said.

Three of the prosecution’s witnesses against Ahmed Ghailani were not available because they died since testifying in the 2001 trial against the four previously arrested for the 1998 attacks upon our embassies. If our national policy becomes delaying war crime prosecutions until the end of hostilities, it imbues war criminals with a temporary immunity and risks their outliving the means to bring them to justice.

Judge Kaplan’s ruling that the testimony by the seller of the TNT to Ghailani was “fruit of a poisoned tree” is exactly why President Obama and Attorney General Holder hold out hope to someday bring more Gitmo detainees onto U.S. soil and to trial, regardless of the venue. Yet after the Ghailani verdicts, this and future Congresses are unlikely to ever fund bringing them here for that purpose.

This war will not end in our lifetimes or theirs and no President will release al Nashiri and Khalid Sheikh Mohammed alive to again wage illegal war upon the United States. Should they be acquitted due to Constitutional protections, America will finally see the wisdom of our Founding Fathers who gave no authority to the Judiciary branch in war. If they are convicted and pay the full measure for their war crimes, justice will at last be served.

WSJ: ‘officials’ say military commission at Gitmo for KSM

Yesterday, the Wall Street Street Journal reported:

Attorney General Eric Holder said Wednesday a decision is near on where to try Khalid Sheikh Mohammed and other confessed plotters of the Sept. 11, 2001, terror attacks. A key New York lawmaker flatly ruled out Mr. Holder’s earlier choice of federal court in New York City as a venue, and officials say the most likely outcome is a military commission trial at Guantanamo Bay, where the accused men are now held.

That may explain why Human Rights Watch has launched a taxicab video campaign:

The “man-on-the-street” style video, filmed around parts of Lower Manhattan, features more than a dozen anonymous city residents, from formally dressed bankers to street vendors, who speak directly to the camera, declaring, “I’m a New Yorker.” The speakers proclaim their support for the trials to be held in the city: “Here, here, because the crime was committed here,” one says. The advertisement ends by urging viewers to “stand up for 9/11 trials in New York” and suggesting a visit to the group’s Facebook page.

Gridlock, high security, and enemy propaganda would happen here, in lower Manhattan, at the same time the National September 11 Memorial and Museum was opening, if Khalid Sheikh Mohammed is brought to trial six blocks from the World Trade Center, as Debra Burlingame explained on Fox News with Megyn Kelly:

Obviously, Human Rights Watch has no regard for the safety, livelihoods, and opinions of New York City residents and Americans in general.

We will soon learn whether President Barack Obama shares their indifference.

Jam the jihad; a military commission judge should silence KSM’s propaganda

Our nation makes selective use of enemy communications. We intercept to gather intelligence and jam to disrupt enemy command and control; these help shape the battlefield and forces the enemy to fight at a disadvantage. Limiting enemy propaganda is a critical aspect of winning the information battle fought during every war.

Some, including Michael Daly at the New York Daily News, used the subway bomb plotter’s fifteen minutes of fame in Brooklyn’s federal court to claim there would be no harm in prosecuting Khalid Sheikh Mohammed the same way, in the same place:

Why not put Khalid Shaikh Mohammed on trial in New York … He is only going to make himself sound as twisted as Ahmedzay. He is sure to sound exactly like a monster who would murder thousands of innocents. He certainly is not going to sway anybody who has any sense and decency.

President Franklin Roosevelt provided no public forum to enemy war criminals to spew pro-Nazi propaganda. On June 13, 1942, eight German saboteurs landed on Long Island and Florida shores and buried their uniforms on the beach. According to the U.S. Department of Justice:

The purpose of the invasions was to strike a major blow for Germany by bringing the violence of war to our home ground through destruction of America’s ability to manufacture vital equipment and supplies and transport them to the battlegrounds of Europe; to strike fear into the American civilian population, and diminish the resolve of the United States to overcome our enemies.

All eight were captured a week later and six of the eight — including American citizen Herbert Hans Haupt — were executed a mere fifty-six days after landing. Their military tribunals were witnessed by a few selected journalists; the courtroom was closed to them when classified information was discussed and their news reports were censored. Germany made no further attempt to attack America on its soil during WWII.

Why help Khalid Sheikh Mohammed slaughter thousands more?

At Gitmo, judges and prosecutors have a ‘pause button’ close at hand to instantly silence the sound outside the glass enclosed section of the courtroom to prevent the accidental release of classified information.

It should also be used to silence KSM’s propaganda whenever he attempts to incite more to fight our troops and attack the innocent. The defense lawyers and mainstream media (and al Jazeera) would denounce the practice. So what? (They would denounce his trial by military commission regardless.) FDR ignored their complaints and informed the Supreme Court he would do the same to them, no matter how they ruled.

Khalid Sheikh Mohammed is not some righteous dissident; he is a senior member of al Qaeda. America’s enemies have no Constitutional right to use our system to promote their causes.

Let’s jam the jihad as we prosecute the 9/11 conspirators.

Disingenuous Durbin; AG Eric Holder helps Senator mislead about KSM death penalty

When Khalid Sheikh Mohammed and his fellow 9/11 conspirators attempted to plead guilty, Army Colonel Steve Henley, the judge presiding over the pretrial hearing, was not sure if the Military Commissions Act allowed him to impose the death penalty. That was the reason KSM withdrew his offer. Henley asked for legal briefs from the parties yet the military commissions were shut down before he could rule and the resulting appeals to the D.C. Circuit could take place. Facts be damned, this has become a Democrat talking point.

During last Wednesday’s Senate Judiciary Committee hearing, there was this exchange:

SENATOR RICHARD DURBIN: I want to make it clear that I am not creating or trying to cast any kind of negative impression about military commissions … Is it not true though that under the procedural rules of military commissions there are some limitations compared to Article III courts, for example, when it comes to capital offenses?

ATTORNEY GENERAL ERIC HOLDER: Yes. In an Article III court, a person can plead guilty to a capital offense; that is not allowed in a military commission.

DURBIN: There would have to be, in fact, some trial even if they wanted to plead guilty under those circumstances. [slide video to 1 hour 14 minutes]

Beyond disingenuous, former White House Counsel Greg Craig is quoted in the Harvard Law Review from an April 6 interview:

[Craig] also noted that support for military commissions is particularly surprising in light of the fact that they are not allowed to sentence detainees to capital punishment. “If you care about capital punishment for KSM and these individuals, then you would support what Eric Holder recommended.”

The MCA authorizes the death penalty.

As Debra Burlingame points out, Congress could clear up any ambiguity by amending the statute. She adds:

“Why would anyone who supports an Article III capital plea vote against it? The defendant wants to plead guilty. Also, the plea allocution in military court is way, way more extensive than in civilian court. Remember Richard Reid’s famous plea allocution (where the judge famously said, “you’re no warrior”), that took less than an hour. Military court takes days. They get every little last detail on the record. The judge will ask KSM all the kinds of questions that would have formulated the evidence in a full prosecution at trial.”

The Obama administration unsuccessfully tried running this sham past her last year:

“When I was at the DOJ meeting with families last June, [a senior official on the DOJ’s Guantanamo Task Force] tried to tell families that KSM could not be executed with an MCA guilty plea and I called him on that misstatement. I said, wait a minute, that it was an ambiguous statute, the judge asked for briefs, and the case was suspended without an answer, but that Congress could cure the problem. [The senior official] was red-faced, and admitted I was right.”

The MCA says a judge in an military commission can make a finding of guilty without the panel voting:

“Sec. 949i. Pleas of the accused

“(a) Entry of Plea of Not Guilty.–If an accused in a military commission under this chapter after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the military commission shall proceed as though the accused had pleaded not guilty.
“(b) Finding of Guilt After Guilty Plea.–With respect to any charge or specification to which a plea of guilty has been made by the accused in a military commission under this chapter and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote. The finding shall constitute the finding of the commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

“Sec. 949m. Number of votes required

“(a) Conviction.–No person may be convicted by a military commission under this chapter of any offense, except as provided in section 949i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken.
“(b) Sentences.–
(1) No person may be sentenced by a military commission to suffer death, except insofar as–
“(A) the penalty of death is expressly authorized under this chapter or the law of war for an offense of which the accused has been found guilty;
“(B) trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial;
“(C) the accused is convicted of the offense by the concurrence of all the members present at the time the vote is taken; and
“(D) all the members present at the time the vote is taken concur in the sentence of death.

The MCA also says:

“No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken.”

It is reasonable to suggest that a judge can accept a guilty plea and impose those sentences without the concurrence by three-fourths of the panel.

It follows that a judge could also impose the death penalty for capital offenses subsequent to a guilty plea; there has been no ruling to the contrary and Holder and Durbin both know it. With no law on the books against their casting “negative impression[s] about military commissions,” they will go on misinforming until the American people vote them out of office (and off C-SPAN). It is punishment enough that Craig has been reduced to misinforming President Obama’s old newspaper.

AG Eric Holder inflated terror case convictions

One difference between the man now heading the Justice Department and most of those he touted as “hundreds of successful prosecutions for terrorism” is at least the latter paid some price for deceiving or endangering the American people. Friday’s document dump (first leaked to friendly media by the DOJ) is further evidence of what Attorney General Eric Holder previously withheld that refutes his public statements and prior testimony before Congress. Senator Jeff Sessions and former federal prosecutor Andrew McCarthy summarize it correctly:

“The contention that the civilian criminal justice system is always an effective tool against terrorism, though wrong, is not a frivolous argument. But it is diminished when posited by unserious people — and the people running this Justice Department are embarrassing themselves. Finally today, after months of delay, DOJ officials released what they claim is the back-up for Attorney General Holder’s oft-repeated and outlandish claim that there are “hundreds” of convicted “terrorists” incarcerated in federal prisons, which “fact” supposedly shows that civilian justice processes are our best method of trying, convicting and securely detaining terrorists. The Friday data dump is a joke. No wonder they waited til everyone was headed out of town to dump it.” — Andrew McCarthy


“The information provided today confirms what Republicans have been saying all along — and removes perhaps the last remaining pillar underneath the Attorney General’s collapsing argument for the civilian trial of Khalid Sheik Mohammed. It is clear why the Attorney General was so reluctant to provide it. The Attorney General assured senators that KSM’s trial in New York City was ‘in the best interests of the American people in terms of safety.’ He justified that assertion by claiming that 300 terrorists were already safely convicted and in prison. In other words, the Attorney General was saying we’ve done this 300 times before and we can do it again. But we now know this is simply not true. The great majority of the terrorism cases cited by the Attorney General are in no way comparable to KSM’s case. Most of the convictions in this list are for far lesser offenses, such as document fraud and immigration violations, while only a small handful concern conduct even remotely similar to a mass-casualty terrorist attack. And none are on the level of KSM, who masterminded 9/11.” — Senator Jeff Sessions

Eric Holder claimed during his January 15, 2009 confirmation hearing to have learned while the DAG from his mistakes in the handling of the FALN and Marc Rich pardons. Obviously, he mostly learned he could make them with impunity and even bigger ones in furtherance of the political objectives of President Obama as the Attorney General of the United States.