Unprecedented Danger of Trying Alien Enemy Combatants in Article III Courts

Students for Victory:The issues surrounding counterterrorism policies are often confusing, and the circumstances surrounding the proposed New York City civilian trial for Khalid Sheikh Mohammed and the other four 9/11 enemy combatants have not been laid out clearly in the media.

To help equip you with more information about the threat posed by the potential civilian trial for these alien enemy combatants, Students for Victory has just released a new fact sheet [pdf format] to help counter misinformation out there in any conversations you may have over the issue.

The Unprecedented Danger of Trying Alien Enemy Combatants in Article III CourtsSince the Obama Administration announced that Khalid Sheikh Mohammed and four other enemy combatants would be tried in civilian courts for their role in the September 11th terrorist attacks, the decision has come under fire. Each of the five defendants in the planned trial, United States v. Khalid Sheikh Mohammed, et al. are enemy combatants captured on the battlefield in Afghanistan and Pakistan^1,2,3,4,5. Having failed to meet the standards required of the Geneva Conventions to qualify as prisoners of war, the five have been held as enemy combatants since their capture.

In recent testimony before Congress, Attorney General Eric Holder offered four arguments in defense of the Administration’s decision to try enemy combatants in civilian courts for the first time in American history ⁶.

• First, a federal court was the best venue for KSM because it is the forum "most likely to obtain justice."
• Second, the attacks of 9/11 were not only acts of war, but also crimes.
• Third, "justice has been delayed for eight years," and the Administration was committed to obtaining swift and certain justice for the perpetrators of 9/11 through federal court trials.
• Fourth, there have been hundreds of successful terrorism trials in federal court and we have enjoyed a conviction rate of over 90 percent in those cases.

Unfortunately all of these reasons for trying enemy combatants in civilian courts rather than under the laws of war through military commissions hold major flaws.

• First, as Senator John Kyl pointed out, Khalid Sheikh Mohammed and the others were begging to plead guilty in their military trials, so it is difficult to argue that justice will be better served in a contested civilian trial.
• Second, the Administration lacks a clear plan to distinguish between terrorism cases which should be handled in civilian court and which should be handled by military courts. The Obama Administration continues to prosecute terrorists by military commission to this day⁷. Treating the 9/11 attacks as both crimes and acts of war only serves to muddy the legal waters surrounding counterterrorism.
• Third, the principle reason there were so few military trials is the tireless campaign conducted by left-wing lawyers to derail military tribunals and challenging them in the courts⁸. Any delay in holding the 9/11 enemy combatants to account for their violation of the laws of war is wholly due to the actions of attorneys like Holder, who worked to delay justice through constant legal challenges, not due to any inherent delay in the military commission system.
• Finally, and most importantly, there has never been a case where an enemy combatant captured on a battlefield was successfully tried in civilian court⁹. Without any precedent for trying an alien enemy combatant in civilian court, the argument that United States v. Khalid Sheikh Mohammed, et al. would surely provide a conviction rests on no historical foundation whatsoever.

In the absence of precedent for successful trials of alien enemy combatants, members of the Administration from Attorney General Holder to President Obama himself have repeatedly asserted that Khalid Sheikh Mohammed and the other four defendants will certainly be convicted of their crimes and executed.^10,11,12 The insistence of the Administration that a particular verdict will be reached in a civilian trial before it has even taken place only serves to undermine the fairness of our civilian justice system and underscores the fact that it is inappropriate for alien enemy combatants captured on the battlefield to be tried in Article III civilian courts.

During the discovery process, the civilian trial will serve as an “intelligence bonanza for Al-Qaeda as terrorists' lawyers use discovery rules and testimony to reveal national defense secrets to the enemy.¹³" Furthermore, KSM will use it as a propaganda platform, and as a matter of national strategy for counterterrorism, it displays unwillingness of the US to deter future attacks and instead focus on punishing past offenders, which threatens our national security. The Administration should end this civilian trial and allow the military commissions system to work as it was designed.

1 http://www.globalsecurity.org/military/world/para/ksm.htm
2 http://www.globalsecurity.org/security/profiles/muhammad_al-kahtani.htm
3 http://www.globalsecurity.org/security/profiles/ramzi_binalshibh.htm
4 http://www.time.com/time/nation/article/0,8599,448922,00.html
5 http://www.globalsecurity.org/security/profiles/mustafa_ahmed_al-hawsawi.htm
6 http://www.heritage.org/Press/Commentary/ed112309b.cfm
7 http://www.csmonitor.com/USA/Justice/2009/1029/p02s01-usju.html
8 http://article.nationalreview.com/414647/justice-delayed/andrew-c-mccarthy
9 http://www.npr.org/blogs/thetwo-way/2009/11/would_us_need_to_read_bin_lade.html
10 http://www.upi.com/Top_News/US/2009/11/18/Obama-KSM-will-be-convicted-executed/UPI-18271258595780/
11 http://www.msnbc.msn.com/id/35168785/ns/us_news-security/
12 http://online.wsj.com/article/SB10001424052748703683804574533622533459520.html
13 Mark Thiessen. 2010. Courting Disaster. Regnery.

---

Tags: enemy combatants, Students for Victory, terrorist trials To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. Thanks!