The Case for Military
If the trial of '20th hijacker' Zacarias Moussaoui
taught us anything, KSM should not be tried in civilian court.
February 1, 2010
The Weekly Standard
Changing the Zip Code of the trial of Khalid Sheik
Mohammed and four other terrorists from New York City to Somewhere, U.S.A.
does not solve the problems a civilian trial raised in the first place. The
decision does provide some justice because hundreds of millions of dollars
in security costs will not be borne by the city that was the major victim of
this terrorist quintet. But security and other issues do not disappear with
new geography; they just move to the next location.
Try Washington, D.C., where the federal courthouse
is a mere bomb’s throw away from the House and the Senate. Congress will
certainly nix that possible venue. So where? Any population center with
suitable courts and jails (meaning attack proof) will incur the same costs
and lockdowns, including roof top snipers and street closings, that New York
was planning. Any remote location, such as a military base, will cost time
and money because security enhanced courtrooms and holding facilities will
have to be built. Waiting for this construction clearly casts aside “swift”
justice, a promise this administration made to the victims’ families when
explaining a rationale for moving the trials to our shores, and which was
reiterated by David Axelrod just last Sunday on
Meet the Press.
In its attempt to sell us on civilian trials for
terrorists, the administration claims we need to demonstrate that “we have
the best criminal justice system in the world.” For just that reason illegal
enemy combatants should not be tried under its rules.
Battleground conditions do not translate to federal
criminal rules. There are no evidence bags stored in the foxhole to
preserve the chain of custody. Any effort by a trial judge to force the
terrorist’s foot into our constitutionally honed Cinderella shoe threatens
valued protections that have been enlarged over two centuries of Supreme
Court review, most since World War II. At the same time, a policy that
includes the possibility of a civilian trial for any terrorist controls our
treatment of all terrorists, thereby crippling our ability to obtain needed
Assume that for KSM et al there are no Miranda
issues. That is, the government has sufficient evidence to prosecute and
convict without using any statements made sans warnings about the rights to
a lawyer and to remain silent. But what about combatants captured in the
future? What if Osama Bin Laden is found alive? Does he have to be given
Miranda warnings just in case he could be tried in a federal court?
The administration pretends it is satisfied with
the information it received during a 50 minute interview with Christmas Day
bomber wanna-be Umar Farouk Abdulmutallab, leaking that he revealed more
bombers were on their way. Yet, three factors that take months to develop
but which are necessary for meaningful interrogation were missing: questions
based on information in our files like his email intercepts, verification of
his answers, and a person having a rapport with him doing the questioning.
We shut Abdulmutallab up for the appearance niceties attendant to a regular
criminal process when we had almost 300 witnesses to his crime so did not
need his “confession.” Don’t we want to know who those other bombers are,
and where and when they are coming? The fact that Abdulmutallab is
considering cooperating is of no consolation. One month of valuable time
has been lost. What’s more, we have put the terrorist in the driver’s seat,
allowing him to bargain when and what he will reveal.
A major problem unfamiliar to non lawyers is the Brady rule,
which requires the government to provide the defendant with any evidence
that could be “exculpatory.” This broad term includes access to any witness
and document that could directly bear on innocence, as well as information
that could indirectly help, such as impeachment material revealing whether
the witness was given money for appearing even if just travel expenses.
Brady, a valuable tool for defense
counsel, is a constitutionally based requirement. Most often, if not
followed, it results in reversal of the conviction. It is usually played out
pretrial where the defense requests specific witnesses and documents, and
the court decides whether the requests are speculative or should be granted.
This issue brings us to the trial of Zacarias
Moussaoui, much touted by the administration as an example of a successful
terrorist prosecution by the Bush Justice Department. It is not. It was a
three-and-a-half year legal nightmare for the prosecution. Using Brady,
Moussaoui demanded to depose numerous detained enemy combatant witnesses.
The judge found he was entitled access to three of them. Understandably, the
government did not want to grant one terrorist the ability to question
another, nor to disrupt captives undergoing their own interrogation
processes. When informed it could not comply, the court denied the
government the ability to argue for the death penalty.
Moussaoui also used Brady to
request reams of classified documents via the Classified Information
Procedure Act (CIPA). The process usually entails the government rewriting
classified documents as classified summaries and giving them to a security
“cleared” defense counsel. Moussaoui, the terrorist, insisted on his
constitutional right to defend himself so he could personally review the
classified summaries. When allowed to write his own motions, Moussaoui
filed threats against public officials. When he was in court, Moussaoui
ranted that he prayed for the “destruction of the Jewish people.”
The appellate court restored the death penalty.
However, other appellate remands had not been completely worked out at the
trial court level when Moussaoui decided to plead guilty, over his counsels’
objection. Even though Moussaoui admitted during his plea that he had
communicated directly with OBL and trained at a terrorist camp, that he
“knew of al Qaeda’s plan to fly airplanes into” the White House and World
Trade Center Towers, that he had agreed to “participate” in that plan, and
that when he was arrested he lied to the FBI because he wanted the mission
“to go forward,” the jury declined to give him the death penalty.
Unsatisfied with escaping death, Moussaoui made a
rare appeal of a guilty plea claiming, in part, he was forced to plead
because of not having access to classified documents and fellow terrorists.
It took the appellate court 78 pages to discuss the issues, holding that
because he pleaded guilty he had waived those arguments. Good lesson for
KSM. Go to trial because the Brady and
CIPA issues await you.
Then there are the problems of a judge needing
lifetime security after trying a terrorist case, a la former judge Michael
Mukasey who presided over the 1993 World Trade Center bombing trial, and a
jury being skewed against the prosecution for fear of retribution if voting
for conviction or the death penalty.
John Brennan, White House counter terrorism
adviser, was recently asked what was the downside for treating Abdulmutallab
as an enemy combatant. He replied there were no “downsides or upsides.”
Brennan is misinformed. Cost, security, and abuse of our criminal
procedures are downsides for treating enemy combatants as regular criminals.
Guantanamo has secured facilities. Military tribunals are constitutional.
There is no downside for using them.
Victoria Toensing, former deputy assistant
attorney general (criminal division) and chief counsel for the Senate Select
Committee on Intelligence, is founding partner of diGenova & Toensing.