Hidden Agenda in KSM trial?

The former prosecutor of the 1993 WTC bombers, Andrew McCarthy, argues that the Obama administration has to know that treating KSM and other illegal combatants the same as a U.S. citizen arrested in the country’s borders and formally charged with a crime will have many adverse consequences related to national security and classified intelligence.

Pres. Barack Obama and Attorney General Eric Holder, experienced litigators, fully realize that in civilian court, the Qaeda quintet can and will demand discovery of mountains of government intelligence. They will demand disclosures about investigative tactics; the methods and sources by which intelligence has been obtained; the witnesses from the intelligence community, the military, and law enforcement who interrogated witnesses, conducted searches, secretly intercepted enemy communications, and employed other investigative techniques. They will attempt to compel testimony from officials who formulated U.S. counterterrorism strategy, in addition to U.S. and foreign intelligence officers. As civilian “defendants,” these war criminals will put Bush-era counterterrorism tactics under the brightest public spotlight in American legal history.

This is exactly what President Obama and Attorney General Eric Holder know will happen. And because it is unnecessary to have this civilian trial at all, one must conclude that this is exactly what Obama and Holder want to see happen.

During the 2008 campaign, candidate Obama and his adviser, Holder, rebuked the Bush counterterrorism policies and promised their base a “reckoning.” Since President Obama took office, Attorney General Holder has anxiously shoveled into the public domain classified information relating to those policies — with the administration always at pains to claim that its hand is being forced by court orders, even though the president has had legal grounds, which he has refrained from invoking, to decline to make those disclosures. Moreover, during a trip to Germany in April, Holder signaled his openness to turning over evidence that would assist European investigations — including one underway in Spain — that seek to charge Bush-administration officials with war crimes (which is the transnational Left’s label for actions taken in defense of the United States).

Now, we see the reckoning: Obama’s gratuitous transfer of alien war criminals from a military court, where they were on the verge of ending the proceedings, to the civilian justice system, where they will be given the same rights and privileges as the American citizens they are pledged to kill. This will give the hard Left its promised feast. Its shock troops, such as the Center for Constitutional Rights, will gather up each new disclosure and add it to the purported war-crimes case they are urging foreign courts to bring against President Bush, his subordinates, and U.S. intelligence agents.

From indictment to trial, the civilian case against the 9/11 terrorists will be a years-long seminar, enabling al-Qaeda and its jihadist allies to learn much of what we know and, more important, the methods and sources by which we come to know it. But that is not the half of it. By moving the case to civilian court, the president and his attorney general have laid the groundwork for an unprecedented surrender of our national-defense secrets directly to our most committed enemies.

The five jihadists in question are alien enemy combatants currently detained outside the United States. They are not Americans and are not entitled to the protection of our Bill of Rights. That means that in a military-commission trial, they would be given only those rights Congress chose to give them.

At Gitmo, they’ve insisted on representing themselves. In a military commission, we can allow them to do that, but we don’t have to. The commission rules provide for the appointment of military counsel and permit the combatants to retain their own lawyers. This is significant because discovery rules require that the defense be given mounds of information for trial preparation. Much of that information is top-secret intelligence. Importantly, however, we do not have to show the terrorists themselves any classified information. Only counsel who have the required security clearances, and are duty-bound not to reveal the nation’s secrets to the nation’s enemies, get access.

The rules are saliently different in the civilian justice system, where, the attorney general has promised, this case will be treated like any other criminal case. In federal court, defendants — even illegal aliens — are vested with constitutional rights that Congress may not alter or reduce.