KSM and Justice for All

Now that President Obama has executed an Executive Order closing the Guantanamo Bay detention camp, the question on most of our minds is "what do you do with all of the unlawful enemy combatants who are currently being held there?" That is an excellent question. However, I am most concerned about one of those unlawful enemy combatants - Khalid Sheikh Mohammed (or KSM as he's known in intelligence circles).

KSM is the badest of the bad. He is responsible for a list of terrorist attacks that is unrivaled, with the possible exceptions of Osama bin Laden and Ayman al-Zawahiri. Among them are:

1. 1993 World Trade Center Bombing;

2. The nightclub bombing in Bali;

3. The November 2002 suicide bombing of a hotel in Mombasa;

4. The beheading of Wall Street Journal reporter Daniel Pearl;

5. The attempted assassination of Pakistani President Pervez Musharraf;

6. The Richard Reid shoe bomber incident; and

7. The September 11 attacks.

In addition to these, KSM actively plotted dozens of other attacks that were either foiled by Western security services or were stopped by his 2003 arrest in Rawalpindi, Pakistan by Pakistani and US intelligence agents. As you can see, KSM is not the kind of guy who is going to be rehabilated by a short stint in a federal prison.

The current thinking is that Mr. Mohammed will be transferred to the Southern District of New York where there is currently an outstanding federal arrest warrant for him for his involvement in the 1993 World Trade Center attack. So, if the US Attorney tries and convicts him in the Southern District of New York, it will be like convicting Al Capone of income tax evasion - at least he's put away.

There are several problems with this line of thinking. First, at the trial in Federal District Court of Ramzi Yousef and Omar Abdel Rahman for their involvement in the 1993 World Trade Center Attack, the government was forced to disclose many formerly classified details regarding our intelligence gathering. Some of these disclosures were crippling to our intelligence gathering ability. Most notably, during the trial, it was disclosed that the National Security Agency had been listening to all of Osama Bin Laden's satellite telephone calls. Surprise, surprise - once this disclosure was made, Bin Laden stopped using his satellite phone. We have not be able to listen in on him since. There is no reason to think that additional classified information about our intelligence gathering sources and methods will not be disclosed at another trail.

Next, it is unlikely that KSM was given his Miranda Warnings at the time of his arrest. Therefore, will any of his statements be available for prosecutors to use against him? If not, hopefully there is enough other evidence to convict him.

Finally, there is the notion of justice for the families of the 9/11 victims. The Al Capone theory is certainly better than allowing someone like KSM to be set free, but it is unthinkable that the Obama Administration would be unwilling to prosecute him for the 9/11 attacks when they have the goods on him, by his own confession no less. That is unfair and unjust to the 9/11 families. They deserve to have our government, the same government that failed to protect their loved ones, use every means at its disposal to make sure that justice is served upon those who committed the most heinous crime in our lifetimes.

The military commissions were established because the US civilian courts are unable to deal with unlawful enemy combatants. Our military is not, and cannot, be trained to arrest these people on the battlefield with the same procedures as our domestic police agencies. Marines are not expected to give Miranda Warnings or document the chain of evidence. Also, it is often impossible for these terrorists to able to confront their accusers. If the accuser is an undercover CIA operative, do we really want to disclose that for the purpose of one conviction? Also, when the CIA "turns" a terrorist, that person, by nature, is not the world's most upstanding citizen. Such an informant would not only have to have his identity disclosed, but he would be able to be impeached by defense counsel due to his undesirable background.

The military commissions are designed to handle situations like KSM. They protect the intelligence assets that we have at our disposal and provide justice and closure to the victims and their families. President Obama should allow them to proceed and justice will be served.