KSM Deserves Military Justice
Ronald Reagan's policy of trying terrorists in civilian courts is not applicable post 9/11.

March 2, 2010
The Wall Street Journal

In the 1980s, the Reagan administration established a policy for trying terrorists in civilian courts. Why did it do so? And why shouldn't we try alleged September 11 mastermind Khalid Sheikh Mohammed and Christmas Day bomber Umar Farouk Abdulmutallab in these courts?

I was the official responsible for creating the Justice Department's terrorism unit in 1985. I know the basis for its policy of trying terrorists in federal courts-and why it is no longer applicable.

In the 1970s and early 1980s, terrorists were targeting Americans abroad, but the United States could not prosecute them because our courts did not have jurisdiction over acts committed outside of our borders. Countries that had jurisdiction either refused to prosecute or, after a conviction, allowed the terrorists to escape. (Recall U.S. Ambassador to Sudan Cleo A. Noel Jr., who was murdered by eight Black September terrorists in 1973, three of whom disappeared from an Egyptian prison.)

Thus, the Reagan policy was borne of the need to establish international prosecution of terrorism. In December 1984, Congress passed legislation giving our courts jurisdiction over certain terrorists acts committed outside our borders. The administration then began demanding extradition, publicly and adamantly, whenever an American was a target of terrorism-thereby pressuring foreign governments to give us the perpetrator or carry out the prosecution.

The first time was in response to the June 1985 hijacking of TWA Flight 847, when four Islamic terrorists murdered Navy diver Robert Stethem. One of the terrorists was Mohammed Ali Hamadi. We quickly charged him and his three associates with murder and other crimes. 

In January 1987, Hamadi was arrested at a Frankfurt airport for another offense, and when the Germans discovered he was wanted for the TWA hijacking, they had an "Oh damn" moment. I know their angst, because I was responsible for the Justice Department's negotiations to extradite Hamadi.

Citing European opposition to capital punishment, Germany refused to extradite unless we took the death penalty off the table. We agreed to that demand, but Germany still refused extradition. In the end, under public pressure from the U.S., Germany tried Hamadi and found him guilty of murder, possession of explosives, and air piracy. Unfortunately, he was released in 2005 and now walks free somewhere in the Middle East.

Following this case, other countries, including Pakistan, were forced to prosecute terrorists or hand them over to us. Our pressure to extradite gave these countries a face saving "way out": They could, and did, declare it would be worse to turn them over to those "devils," the Americans.

We did not care about the opprobrium. We had forced other countries to prosecute terrorists by asserting we could do so in our courts.

 That long-ago issue is resolved and not relevant today. Since 9/11 we know that terrorists want to destroy our democratic government and murder us. And we face this challenge in a legal landscape different since last we declared war in the 1940s. Constitutionally evolving protections and statutory procedures have created a rich array of legal maneuvers that terrorists can use and abuse, not to ensure acquittal of an innocent but to thwart that very system.

In 1963 the Supreme Court formulated the Brady rule, which requires the government to provide a defendant with any evidence that could be "exculpatory." That means the prosecution must give the defense access to witnesses and documents that could directly absolve him (another person's confession) or indirectly impeach the witness's credibility (how much he was paid for travel).

It's largely up to the defendant to decide what he should receive. If a prosecutor objects to sharing certain information, a judge will make the call on what must be turned over to the defense. In a civilian terrorist trial, this can lead to sensitive intelligence being turned over to a defendant or, at least, make it difficult for the prosecution to protect such information. That's what happened in the Moussaoui case.

Despite claims to the contrary, the civilian trial of the so-called 20th 9/11 hijacker Zacarious Moussaoui was not a success. For three-and-a-half years Moussaoui twisted the prosecution into a legal pretzel, using Brady to demand access to captured enemy combatants. When prosecutors balked at going along with a court order to grant Moussaoui such access, a judge prohibited the prosecution from pushing for the death penalty.

In 1975, the Supreme Court held that defendants have a constitutional right to represent themselves. Moussaoui took that right and upped it a notch by demanding, under the 1980 Classified Information Procedures Act (CIPA), that he be given classified documents. The CIPA allows for defense attorneys who have security clearances to gain access to summaries or redactions of classified information. But it does not anticipate providing such information to a suspected terrorist who is representing himself. Under CIPA, when the prosecution will not comply with a court order to turn over information, the case is to be dismissed. 

While Moussaoui's issues were being sorted out in the courts, he pleaded guilty to terrorism conspiracy. When a jury did not impose the death sentence he wanted, Moussaoui appealed. He argued that because Brady and CIPA were violated, he was forced to plead guilty. That appeal was rejected by the Fourth Circuit in a 78-page opinion, which found that because he pleaded guilty Moussaoui waived his right to object to violations of Brady and CIPA. What would have happened had Moussaoui not pleaded guilty and instead proceeded to trial as KSM apparently wants to do?

There is one other relevant constitutionally grounded protection, the century-old exclusionary rule. It prohibits the government from using otherwise credible evidence when a court determines that a police officer erred in collecting it. In a civilian court, KSM will likely demand that the prosecution be denied the use of physical evidence collected when he was apprehended in Pakistan, because there was no search warrant. He was also not given his Miranda warnings, so he'll demand that none of his statements be used against him.

If he is instead tried under the Military Commission Act, prosecutors will be able to use both physical evidence from his apprehension as well statements made without Miranda warnings. Hearsay evidence will also be easier for the prosecution to use.

President Franklin D. Roosevelt eschewed a civilian court for eight German saboteurs who waded onto our Atlantic shores determined to blow up war production factories. In opting for trial by military commission, FDR penned his own rules, including a right to appeal only through him. Unlike today's Supreme Court, the World War II Court approved the convictions and executions.

For seven years the rules for a military commission were in limbo because the Supreme Court did not approve the executive branch's written procedures or Congress's subsequent first attempt to write others. Not until 2008 did it sanction military commission procedures under the Military Commission Act.

We now have a system that provides due process while recognizing there are differences between enemy combatants and bank robbers. We should use it.

Ms. Toensing was chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration.





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