The Wall Street Journal-20080216-Hot Topic- KSM- the Victim
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Hot Topic: KSM, the Victim
Full Text (972 words)On Monday, some six years after 9/11, military prosecutors filed charges against Khalid Sheikh Mohammed, al Qaeda's foreign-operations chief, along with five of his conspirators. They will stand before a military tribunal, and if convicted they could face execution. And as if to prove that the U.S. has lost its seriousness and every sense of proportion, now we are told not that KSM is a killer, but a victim.
The victim, supposedly, of President Bush. Opponents of military commissions (including Barack Obama) want KSM & Co. turned over to the regular civilian courts, or at least to military courts-martial; anything else is said to abridge American freedoms. This attitude is either disingenuous or naive, or both, because it is tenable only by discounting the nature of the attacks and the enemies who carried them out.
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KSM himself has made plain the extent and ambition of his world war. "I was responsible for the 9/11 operation, from A to Z," he admitted during a hearing in March last year. He planned the 1993 World Trade Center attack, the 2002 bombings of the Bali nightclubs and the Kenya hotel, among 31 actual attacks. KSM was an architect of the Bojinka plot in 1995; by his own confession he drew up plans for strikes in South Korea, Thailand, Indonesia, the Philippines, Panama, Israel, Brussels and London, plus a "new wave" of post-9/11 attacks on L.A., Seattle, Chicago and New York.
These are not ordinary crimes. "For sure, I'm American enemies," said KSM in his broken English. "When we made any war against America we are jackals fighting in the nights. . . . the language of the war are killing." The proper venue to address his mass crimes against humanity is not some civilian jurisdiction. Terror cases committed as acts of war, by their very nature, require a separate judicial process.
The U.S. effort to bring it about was long delayed by legal challenges. Yet with the Constitutional guidance of the Supreme Court's Hamdan decision, Congress and the President established a deliberate framework for prosecuting "unlawful enemy combatants" in the 2006 Military Commissions Act.
Yet now anti-antiterror activists are attempting to make the process a referendum on the Bush Presidency or "torture" or whatever. Purportedly the tribunals are illegitimate because they do not afford every last Miranda right or due-process safeguard of the civilian courts. The key and appropriate distinction is that foreign terrorists are not entitled to the protections of the U.S. Constitution. They also violated the laws of war -- for example, by deliberately targeting civilians. International law has always held that such people deserve fewer legal protections, much less those of civilian defendants.
Still, it's no exaggeration to say these war tribunals will be the most due-process-minded war tribunals in history. The procedures are nearly identical to those of a court-martial, with small differences for rules on secrecy and evidence. To avoid compromising intelligence sources and methods, and given the national-security interests, some tradeoffs were necessary. What's notable is how fine those distinctions are. Even liberal darlings like the International Criminal Tribunal for Yugoslavia are more severe, allowing prosecutors to pack the pretrial factual record or to have ex parte contact with judges.
By contrast, terror detainees have rights approximating habeas corpus and can challenge their incarceration, including judicial review by the D.C. Circuit Court of Appeals and Supreme Court. Critics yowl about the admissibility of "hearsay," but civilian jurisprudence is loaded with exemptions for second-hand material -- as any first- year law student will attest. The relevant point is that in terror cases it may be necessary to shield sources and tactics, or allow for evidence gathered under battlefield conditions.
Another point of controversy is that defendants may be barred from seeing all the evidence against them. But their government-appointed defense lawyers, with security clearances, can; and in any case, the detainees will be given access to declassified summaries of such evidence.
The most preposterous canard is that the tribunals are tainted because some terrorists were subjected to coercive interrogation techniques while in CIA custody. But a total of three -- KSM being the only one yet charged -- were waterboarded. It was conducted not to extract a confession but in the immediate aftermath of 9/11 when further attacks seemed likely and intelligence about al Qaeda's operations was limited. CIA Director Michael Hayden recently testified that these interrogations saved American lives.
Though allegedly coerced testimony might potentially be admitted under the Military Commissions Act, the Pentagon took the extra step of using "clean teams" to rebuild the cases. Not that it matters: Like KSM, most of the 9/11 conspirators happily boast of their atrocities.
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Whether they intend it or not, KSM's victimologists are dupes in his campaign to undermine the antiterror enterprise. They also risk tearing down the firewall between national security and the civilian courts, where Constitutional principles could easily bend after some future attack to the gravity of national self-defense.
The proceedings are likely to be transparent, with only a limited portion closed to observers. It is true that this could become a forum for claims of childhood trauma, or a platform for grievances against the U.S., as with Zacarias Moussaoui; they also could degenerate into a media carnival. But that has more or less already happened. One virtue of public proceedings is to show that the U.S. is not conducting the Star Chambers of liberal caricature. Another is to reveal the ideology that irrigates al Qaeda's violence.
The ultimate purpose of the tribunals is to administer justice. It is a strange worldview that considers such tribunals and the death penalty inappropriate for the murders of 2,972 people in New York, Virginia and Pennsylvania, and hundreds more world-wide. A society that would not tender justice to a human butcher like KSM is not serious about defending itself.
