Holy $@#*, who put these idiots in charge of a war? Oh yeah, that's right. We did. This is complete insanity, a purely political decision, with the only factor taken into consideration being "apologizing" for the Bush administration and "setting things right", with no thought of the consequences. This decision (trying enemy combatants while AT WAR in U.S. criminal courts) is so far beyond stupid that I'm having trouble coming up with the words. This, on top of the endless agonizing about the most politically helpful move on Afghanistan and the threat of "discussions about the seriousness of possible consequences" against Iran, is causing me to severely doubt the ability of this administration to tie their own shoes, let alone execute a war.

The decision to prosecute Khalid Sheikh Mohammed in a federal court in New York could go down as one of the most misguided in the history of U.S. jurisprudence. The reasons are numerous, but one in particular will have serious consequences on our ability to collect intelligence to prevent attacks against the U.S. at home and abroad.

The 9/11 attacks were not simply a crime. They were a catastrophic act of terrorism committed in violation of the laws of war. The FBI realized the attacks were unlike the day-to-day crimes committed in this country and categorized them differently under the bureau's traditional "Crime in the United States" publication for 2001.

The reason they are "different" is self-evident. Those responsible for Sept. 11, 2001, are no more criminals who belong in a civilian court than the fascists of Germany or Japan of World War II did. Indeed, the Nazi saboteurs of World War II captured on U.S. soil were tried in military commissions. Those fascists, like the leadership of al-Qaeda, literally declared war on us. For those who doubt we are at "war" with al-Qaeda, they need only look to the roughly 68,000 U.S. troops now committed to Afghanistan.

Nonsensical decision

Osama bin Laden, Mohammed and their al-Qaeda cohorts do not have the civilian constitutional right to remain silent, to have an attorney, to a speedy trial, to be judged by a jury of their peers and so on. By categorizing these men as mere criminals, we have incongruently tried to merge war-fighting tactics with the Federal Rules of Criminal Procedure and the Federal Rules of Evidence. On the one hand, we drop bombs on al-Qaeda using Predator drones and, on the other, we have to "Mirandize" them if captured. This is nonsensical.

What happens if bin Laden and his deputy, Ayman al-Zawahri, are captured overseas? They should be treated as unprivileged enemy belligerents, held and interrogated not for the purpose of building a civilian criminal case against them, but for the purpose of collecting intelligence in order to thwart future attacks. To achieve the latter may require us to engage in tactics, far short of waterboarding, that would nonetheless violate the constitutional rights of a traditional criminal defendant. This could result in the suppression of evidence and even the dismissal of cases. To avoid that from happening will hamstring our ability to collect intelligence and disrupt attacks.

Should location matter?

The Justice Department's reasoning for this decision is incoherent. On the one hand, it declares that those captured on the battlefield for attacks overseas, especially against military targets, will be handled largely through military commissions. It cites the example of Abd al-Rahim al-Nashiri, charged with masterminding the attack on the USS Cole. But Mohammed was captured in Pakistan, and he has confessed to attacking the Pentagon. If you attack and kill thousands of civilians and military personnel on U.S. soil in violation of the laws of war, you will be afforded civilian constitutional due process rights, but if you attack our warships overseas, you get a military commission? What if the Cole had been docked in San Diego when it was attacked?

Finally, if Bin Laden and Zawahri are simply wanted criminal fugitives, any use of military force against them might be a violation of due process, calling into question the legality of our war against al-Qaeda. But we tried to treat our fight with al-Qaeda as a purely law enforcement operation with the 1993 World Trade Center bombers, and it failed miserably in stopping future attacks.

Mohammed did not rob a bank, and al-Qaeda is not the mafia. It is an international terrorist organization and movement still openly at war with the people of the United States of America, whether we choose to recognize it or not.

And the article my subject line is referring to:


Leahy: No need to interrogate bin Laden
By Michael O'Brien - 11/19/09 10:32 AM ET

If the U.S. captures Osama bin Laden, there's no need to interrogate him, the chairman of the Senate Judiciary Committee said Thursday.

Sen. Patrick Leahy (D-Vt.), the chairman of that committee, said that arguments raised by Republican senators about whether bin Laden would be afforded Miranda rights if he were captured amount to a "red herring."

"The red herring that my friend [Sen.] Lindsey Graham [R-S.C.] was covering is not realistic," Leahy said during an appearance on "Washington Journal" on C-SPAN.

"For one thing, capturing Osama bin Laden — we've had enough on him, we don't need to interrogate him," Leahy added.

Graham had grilled Attorney General Eric Holder during a hearing on Capitol Hill on Wednesday on whether bin Laden should be afforded due process in courts if he were captured.

"The big problem I have is you're criminalizing the war, that if we caught bin Laden tomorrow, we have mixed theories and couldn't turn him over to the CIA, the FBI, military intelligence for an interrogation on the battlefield, because now you're saying he's subject to criminal court in the United States and you're confusing the people fighting this war," Graham said.

A senior Republican aide criticized Leahy, saying "it's a good thing they kicked him off the intel committee in the late 80’s."

On "Washington Journal," Leahy stuck up for Holder's decision to bring Sept. 11 mastermind Khalid Sheikh Mohammed and other detainees to New York for civilian trials.

"We're going to bring them back to New York and prosecute them," he said. "I think we ought to stand up and applaud that."