Should terrorists be tried in criminal court?

Weekly Editorial   —   Posted on September 13, 2018

NOTE: In November 2009, U.S. Attorney General Eric Holder announced the Obama administration would move the trial of Khalid Sheik Mohammed and four alleged co-conspirators accused of organizing the Sept. 11 attacks to Manhattan federal criminal court.

In April 2011, having never moved the terrorists from Guantanamo Bay in Cuba, Attorney General Eric Holder announced they would be tried before a military commission at Gitmo. In announcing the decision, Attorney General Holder said he would return the case to the Defense Department “reluctantly” and blamed the move on Congress…   The commentary below was written after the 2009 announcement that the 9/11 conspirators would be tried in civilian court, rather than by a military tribunal as enemy combatants.

Thomas Sowell

(by Thomas Sowell, RealClearPolitics) – …Nothing seems more like sheer insanity than the decision to try foreign terrorists, who have committed acts of war against the United States, in federal court, as if they were American citizens accused of crimes.

Terrorists are not even entitled to the protection of the Geneva Convention, much less the Constitution of the United States. Terrorists have never observed, nor even claimed to have observed, the Geneva Convention, nor are they among those covered by it.

But over and above the utter inconsistency of what is being done is the utter recklessness it represents. The first time an attack on the World Trade Center was treated as a matter of domestic criminal justice was after [Islamic terrorists exploded a bomb] there in 1993. Under the rules of American criminal law, the prosecution had to turn over all sorts of information to the defense– information that told the Al Qaeda international terrorist network what we knew about them and how we knew it.

This was nothing more and nothing less than giving away military secrets to an enemy in wartime– something for which people have been executed, as they should have been. Secrecy in warfare is a matter of life and death. Lives were risked and lost during World War II to prevent Nazi Germany from discovering that Britain had broken its supposedly unbreakable Enigma code and could read their military plans that were being radioed in that code.

“Loose lips sink ships” was the World War II motto in the United States. But loose lips are mandated under the rules of criminal prosecutions.

Tragically, [the Obama] administration seems hell-bent to avoid seeing acts of terrorism against the United States as acts of war. The very phrase “war on terrorism” is avoided, as if that will stop the terrorists’ war on us.

The mindset of the left behind such thinking was spelled out in an editorial in the San Francisco Chronicle, which said that “Khalid Shaikh Mohammed, the professed mastermind of the 9/11 terrorist attacks, will be tried the right way– the American way, in a federal courtroom where the world will see both his guilt and the nation’s adherence to the rule of law.”

This is not the rule of law but the application of laws to situations for which they were not designed.

How many Americans may pay with their lives for the intelligence secrets and methods that can be forced to be disclosed to Al Qaeda was not mentioned. Nor was there mention of how many foreign nations and individuals whose cooperation with us in the war on terror have been involved in countering Al Qaeda– nor how many foreign nations and individuals will have to think twice now, before cooperating with us again, when their role can be revealed in court to our enemies, who can exact revenge on them.

Behind this decision and others is the notion that we have to demonstrate our good faith to other nations, sometimes called “world opinion.” Just who are these saintly nations whose favor we must curry, at the risk of American lives and the national security of the United States?

Internationally, the law of the jungle ultimately prevails, despite pious talk about “the international community” and “world opinion,” or the pompous and corrupt farce of the United Nations. Yet this is the gallery to which Barack Obama has been playing, both before and after becoming President of the United States.

In the wake of the obscenity of a trial of terrorists in federal court for an act of war– and the worldwide propaganda platform it will give them– it may seem to be a small thing that President Obama has been photographed yet again bowing deeply to a foreign ruler. But how large or small an act is depends on its actual consequences, not on whether the politically correct intelligentsia think it is no big deal.

As a private citizen, Barack Obama has a right to make as big a [fool] of himself as he wants to. But, as President of the United States, his actions not only denigrate a nation that other nations rely on for survival, but raise questions about how reliable our judgment and resolve are– which in turn raises questions about whether those nations will consider themselves better off to make the best deal they can with our enemies.

Published November 17, 2009 at RealClearPolitics.com. Reprinted here September 13, 2018 for educational purposes only. May not be reproduced on other websites without permission from RealClearPolitics.

Thomas Sowell is a senior fellow at the Hoover Institution, Stanford University and the author of “Basic Economics,” ”Applied Economics” and “The Housing Boom and Bust.”  Over the past three decades, Dr. Sowell has taught economics at various colleges and universities, including Cornell, Amherst, and the University of California at Los Angeles.