9/11, Eric Holder, Khalid Sheikh Mohammed, Military Commissions

Lessons From Nuremberg: military courts can live up to the promise of the rule of law

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In the New York Times this morning, former Deputy-Assistant Attorney General Allan Gerson writes:

While it is true that military tribunals have in the past not accorded defendants the full range of procedural safeguards applicable in a criminal trial, this has changed in recent years. Section 949l(c) of the Military Commissions Act of 2009 specifically provides that the burden of proof, which rests on the government, is nothing less than that applicable in a criminal trial: beyond a reasonable doubt. Moreover, the allowances for the use of hearsay and coerced evidence have been eliminated by the Military Commissions Act of 2009. If one truly wants to have a “show” trail of U.S. fairness, there is no better model than what the military courts would do.

Finally, the use of a military tribunal would be understood around the globe. No country other than the United States has ever suggested that war crimes be tried in ordinary courts. The true moral advantage lies in demonstrating that military courts can live up to the promise of the rule of law.

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9/11, Andy McCarthy, Eric Holder, Khalid Sheikh Mohammed, World Trade Center

1st WTC bombing’s prosecutor calls federal 9/11 trials ‘dangerously irresponsible’

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Andy McCarthy led the team that successfully prosecuted those who bombed the World Trade Center on February 26, 1993 and conspired in the Landmark Bombings plot, including “Blind Sheikh” Omar Abdel-Rahman. He has been critical of Attorney General Eric Holder’s decision to bring the 9/11 conspirators into federal court. McCarthy weighed in again today, in the New York Daily News:

In the military system, we could have denied them access to classified information, forcing them to accept military lawyers with security clearances who could see such intelligence but not share it with our enemies. In civilian court, the Supreme Court has held an accused has an absolute right to conduct his own defense. If KSM asserts that right — as he tried to do in the military commission — he will have a strong argument that we must surrender relevant, top-secret information directly to him. And we know that indicted terrorists share what they learn with their confederates on the outside.

Finally, as policy, the administration’s decision is perverse. A half-century of humanitarian law, beginning with the Geneva Conventions, sought to civilize warfare. To receive enhanced protection, combatants must adhere to the laws of war and refrain from targeting civilians. Under Obama-logic, the Cole bombers get a military commission while the 9/11 savages are clothed in the majesty of the Bill of Rights.