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
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
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.
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.
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
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
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?
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
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.
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
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