The Associated Press offered a superficial glance at a complex and alarming update in the upcoming trial of the five 9/11 defendants, leaving me to wonder where is their thoughtful, penetrating examination of this judicial travesty about to take place in New York City. There is certainly no shortage of critical questions in want of answers.
The AP reported Sunday that the five 9/11 defendants to be tried in New York City will not deny their role in the terrorist attacks of Sept. 11, 2001, but will nonetheless be pleading “not guilty.” This, to me, initially seemed a sure sign that the defense attorney feels compelled to observe no ethical responsibilities to the American judicial system as his clients attempt to put U.S. foreign policy on trial.
The attorney assigned to defend the five terrorists on trial, Scott Fenstermaker, reported Sunday that all five of his clients are also planning to use the “stage” they are given to deliver their radical Jihadist message and explain why they believe more Americans must die. The Obama Administration can’t say they weren’t warned – again, and again, and again.
There is the possibility that Fenstermaker has chosen the path of least resistance in representing his clients, for the sake of self-preservation. There can be no doubt this case will have a significant impact on his career – for better or worse. But what we may perceive during this trial as over-zealous representation may be the actions of a defense attorney caught between the rock of the American justice system and the hard place of representing hardened terrorists who would stop at nothing to continue their mission against America.
Either way, Attorney General Eric Holder and the Obama Administration, which pulls his strings, opted to take great risks with a trial in our civilian judicial system, and for no clear, justifiable reason. Even if the trial concludes without incident, the results would not justify the risk. If it does not go without incident, the results could be catastrophic.
Holder’s defense to the outrage following the announcement of the trial in NYC was weak, aloof and dismissive of the true weight of his choice.
“I have every confidence that the nation and the world will see him for the coward that he is,” Holder said. “I’m not scared of what Khalid Sheikh Mohammed has to say at trial, and no one else needs to be, either.”
The blatant arrogance and ignorance exhibited by the Obama Administration and Holder is of far less concern than the wider implications to our judicial system. Merely saying that these five terrorists will have the same rights as any other American defendant in our court system doesn’t begin to convey the realities of the situation in which our justice system has been placed.
John Yoo, a columnist with the Philadelphia Inquirer and law professor at the University of California, Berkeley, made up for the AP’s lack of insight on the trial when he wrote extensively on the disaster about to unfold:
“…the positive benefits [of a civilian trial] remain obscure to the point of vanishing. All that is known for certain are the heavy costs:
Giving Mohammed and his fellow terrorists the same constitutional rights as any U.S. citizen accused of a crime risks our nation’s most vital intelligence secrets. Mohammed can demand that the government turn over all of its information on him and tell him how it was acquired or it risks a mistrial or acquittal. Soviet moles like Aldrich Ames and Robert Hanssen used the same tactic to bargain the government down from the death penalty. Ordinarily, such information does not harm the public because the crime has already been committed. But the release of intelligence during hostilities can be disastrous when it informs the enemy of our knowledge, capabilities, and intentions.”
He went on to say:
“This red herring [Holder’s statement] distracts from the administration’s failure to explain why the benefits of using civilian courts outweigh the costs to the war effort. It certainly doesn’t help those who are already protected by the Bill of Rights and can be tried in civilian courts. If anything, their rights are at risk, not just by a failure to convict terrorists who killed almost 3,000 people, but by the inevitable judicial compromises that must balance the requirements of a fair public trial with the demands of protecting wartime secrets. Those compromises will no longer be limited to the special context of military courts in wartime, but will become part of the law that governs all Americans.”
Until the trial concludes, Americans will be forced to hold their breath and hope the Obama/Holder decision doesn’t cost us all a great deal in life and/or liberties.
On Wednesday, the Senate Judiciary Committee met to question Attorney General Eric Holder about his decision to prosecute Khalid Sheikh Mohammed and four others in criminal courts rather than military tribunals. As the father of Todd Beamer, who died on United Airlines Flight 93, I was able to attend that hearing. What transpired caused me great concern and shook my confidence in our current administration.
The committee, chaired by Sen. Patrick Leahy (D., Vt.), displayed the division in our country not only visually—the Democrats were seated on the left and the Republicans on the right—but in every aspect of the proceedings. I expected that some members would agree with Mr. Holder and that others would have challenging questions about his decision. What I did not anticipate was the level of partisanship showed by the majority party. It seemed clear to me and other family members of victims that party loyalty is trumping concern for America's security interests.
In his opening remarks, Attorney General Holder acknowledged that these defendants could have been brought to trial in civilian court or before military tribunals. But he made the argument that trying them in our criminal courts would restore the integrity of our judicial system. He assured us that the trials would be quick, that the safety of New Yorkers would be paramount, that classified information would not be revealed, that the evidence was overwhelming, and that justice would be served.
Then he said that the USS Cole attackers would be tried in military courts since they attacked our military. So how does Mr. Holder categorize the Pentagon? Inexplicably, he offered up the body count of 9/11, the fact that civilian deaths outnumbered military ones, as a rationale for his decision.
Then the Republican members proceeded to ask Mr. Holder thoughtful questions. Some examples:
How can we be assured that these enemies will be found guilty? Given that criminal courts are now the presumed venue for those captured on the battlefield, will soldiers need to read them their rights at the time of capture? Since you wish to make exceptions on a case-by-case basis to the presumed civil venue, don't all those captured need to be read their rights and have the opportunity to remain silent? Won't this venue expose intelligence to our enemies? Can our classified information really be secured? Can we in fact predict how the judge will rule? If these people are brought into the country will they get additional rights under immigration law? What if they claim asylum?
The attorney general seemed bewildered in the face of these inquiries. Recurring themes in his responses included "I think," and "I can't imagine," and "I am not an expert in immigration."
Has our attorney general not considered these issues, or imagined the possible unintended consequences that will arise from his historic decision? It certainly seemed that way. If he had, he would have had better answers.
A second shocker: Mr. Holder said that he and his boss had not spoken in person about this decision. This matter only involves upholding the constitutional rights of Americans, establishing a precedent with battlefield impact, and the safety and security of our citizens in a time of war. What are the criteria to make something a priority with President Barack Obama? How can it be that this matter didn't make the cut?
The Democrats used much of their questioning time to heap praise upon Mr. Holder. They all repeated the same trope: We'll show the world that America can conduct these trials openly in criminal courts. And we'll be successful, even as we convey rights to the defendants that are not warranted.
Since when has "show the world" been a primary objective?
No thoughtful questions from the majority party regarding this decision were forthcoming. Their questions mostly addressed other matters. They discussed overcrowding in our prisons (too many drug criminals being sentenced), asked why none of the $500 million in appropriations have helped the rape-kit processing backlog, and inquired about when recommendations for additional staff would be presented for confirmation. Their lack of attention to the pressing matter at hand suggested apathy.
Sen. Chuck Schumer (D., N.Y.) did ask a question about how much the trials will cost. Clearly there will be expense incurred if this does go to trial in New York City. The early, and by no means complete, estimate is that it will cost $75 million for the first year. Mr. Schumer did not express any concern about the costs involved but only asked the attorney general for assurance that all would be covered by federal funds. This question was promptly and explicitly answered in the affirmative by Mr. Holder. After all, this is a rather modest amount by Washington standards.
Our enemies must be thrilled. We are willingly handing them an opportunity to inflict economic harm on New York City, keep their cause in the headlines, gather new intelligence, create new terror strategies, stimulate recruiting, celebrate new-found rights, and foist a fresh round of pain and suffering upon their victims.
This decision is September 11, the sequel. It is my hope that Mr. Holder will reconsider.
A final observation: During the proceedings a young lady, dutifully attentive, sat with a stack of paper about 15 inches high on her lap. The papers contained names, single spaced, of some 100,000 people who signed a letter in opposition to this decision. This young woman, Jill Regan, lost her dad, Donald J. Regan, FDNY of the Bronx, who died trying to save others on 9/11. Sen. Jeff Sessions (R., Al.) asked that those names be entered into the record at the end of the session. It was agreed, but by that time the chairmen and most of the Democrats were already gone. I grieved for her—and for all of us—anew.
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Mr. Beamer is the father of Todd Beamer, who died on United Airlines Flight 93 on 9/11.
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