It’s becoming more and more apparent that the Obama Administration’s decision to try Khalid Sheikh Mohammad in a civilian court has little to do with actual justice.
Consider for example this exchange between Senator Chuck Grassley and Attorney General Holder:
Sen. Charles Grassley (R., Iowa): “I don’t think you can say that failure to convict is not an option, when we have juries in this country.”
Attorney General Eric Holder: I have thought about that possibility. Congress has passed legislation that would not allow the release of these individuals in this country. If there is not a successful conclusion to this trial, that would not mean that this person would be released into this country . . .
Grassley: My understanding is that if for some reason he’s not convicted, or a judge lets him off on a technicality, he’ll be an enemy combatant, so you’re right back where you started.
In other words, the trial is a sham:
[I]f the defendants have zero chance of being released, this is a show trial and a sham. That’s frankly much worse than the status quo, much less a military tribunal.
Senator Lindsey Graham, meanwhile, did an even better job of attacking Holder and the logic behind the KSM civilian trial:
SENATOR LINDSEY GRAHAM, (R-S.C): Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?
ERIC HOLDER, ATTORNEY GENERAL: I don’t know. I’d have to look at that. I think that, you know, the determination I’ve made —
GRAHAM: We’re making history here, Mr. Attorney General. I’ll answer it for you. The answer is no.
HOLDER: Well, I think —
GRAHAM: The Ghailani case — he was indicted for the Cole bombing before 9/11. And I didn’t object to it going into federal court. But I’m telling you right now. We’re making history and we’re making bad history. And let me tell you why.
GRAHAM: If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?
HOLDER: He would certainly be brought to justice, absolutely.
GRAHAM: Where would you try him?
HOLDER: Well, we’d go through our protocol. And we’d make the determination about where he should appropriately be tried. [...]
GRAHAM: If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?
HOLDER: Again I’m not — that all depends. I mean, the notion that we —
GRAHAM: Well, it does not depend. If you’re going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.
The big problem I have is that you’re criminalizing the war, that if we caught bin Laden tomorrow, we’d have mixed theories and we couldn’t turn him over — to the CIA, the FBI or military intelligence — for an interrogation on the battlefield, because now we’re saying that he is subject to criminal court in the United States. And you’re confusing the people fighting this war.
And Holder had no answer for that, because there is none, because the civilian criminal process is inherently inapplicable on the battlefield.
Just as it is absurd to be trying Khalid Sheikh Mohammed in a civilian court for 9/11, it would be absurd to try Osama bin Laden in a civilian court for his decade long war against the United States. This isn’t a law enforcement issue, and al Qaeda is not the Mafia, it’s time to stop pretending that they are.