Maestro Obama’s Terror-Trial Opera

The Puppet

Eric Holder is President Obama’s hand puppet; whenever Holder makes a move that will have political consequences, we are witnessing the hidden hand of Barack Obama in motion. Mr. Holder was chosen to serve as Obama’s attorney general because he was a veteran hand puppet. In July 1999, as deputy attorney general in a previous administration, Eric Holder had rubber-stamped Bill Clinton’s decision to spring sixteen Puerto Rican terrorists from prison as a campaign gimmick to boost Hillary’s stature among New York’s resident Puerto Ricans during her bid for a U.S. Senate seat. It was a vulgar political ploy that twice victimized the surviving victims of the bomb-happy FALN terrorists, but Eric Holder was the perfect stooge for the job; Holder would do what he was told to do.

The conditions of release for the sixteen terrorists were most unusual – because there weren’t any conditions. They were not required to repudiate their monstrous behavior; they were not required to give up any information about the whereabouts of Victor Manuel Gerena, one of their fellow conspirators, then on the FBI’s list of Ten Most Wanted Fugitives. Neither were they asked about all those millions of dollars their gang had stolen from Wells Fargo in a West Hartford armed robbery in 1983. Release of the sixteen terrorists was opposed by the FBI, the NYPD, the federal prosecutor and the gang’s victims.

Eric Holder repeatedly put politics before America’s national interest. A gang of Puerto Rican thugs had waged a bloody bombing campaign that had maimed New York City police officers and inflicted death and injury on scores of other Americans, yet Eric Holder fast-tracked their unconditional release just to brown-nose Bubba Clinton. Holder didn’t even have the decency to notify the surviving victims of those FALN bomb blasts or their families that sixteen of their victimizers were about to fly away as free as birds. The victims heard about the release from newscasters.

Mr. Holder was behaving in his customary manner when he announced “his” decision to pluck the trial of Khalid Sheikh Mohammed away from the secure confines of Guantanamo Bay and plunk it down smack in the center of America’s most densely populated and economically vulnerable human ecosystem – Manhattan Island.

Mr. Holder made it crystal clear that Barack Obama had played no role whatsoever in “his” politically explosive decision. Not since Holder’s former boss, Janet Reno, took a bullet for Bill Clinton by assuming “full responsibility” for the massacre in Waco had an attorney general told such a preposterous whopper.

The Terrorist

Khalid Sheikh Mohammed was raised in Kuwait, but by virtue of being Pakistani his family was considered second-class. Nonetheless, his family sent Khalid away to America for a first-class education. First he attended Chowan College in rural North Carolina, which is a “first stop” for many foreign students who want to improve their English language skills. Later, he transferred to North Carolina A&T, where he snagged a mechanical engineering degree in 1986. Not long after graduation Mohammed drifted back to Pakistan and fell in with the mujahedeen gunmen who were resisting the Soviet military in Afghanistan with generous infusions of cash and arms from the CIA.

The CIA had encouraged a campaign to whip up enthusiasm for Islamic fundamentalism (“that old time religion”) as a way of drawing disaffected young men away from the ranks of a competing movement for Soviet-style socialism. The CIA understood that the sort of people who are inclined to join dynamic mass movements don’t much care about the movement’s theoretical underpinnings – their first purpose is to lose their individual identities in a welcoming community and to swap their drab unsatisfying lives for bright new identities as warriors for some radiant cause. What that cause may be is of secondary importance. The Pakistani kid who grew up feeling second-class in Yemen and who never felt at home in bright-and-bustling America, finally found comfort in a brotherhood of mountain gunmen who fantasized about taking their Seventh Century vision of Islam on a global victory tour.

Over the next decade, Khalid Sheikh Mohammed engineered attacks on dozens of Western targets. Finally, on March first of 2003, in Pakistan, he was yanked from his bed in a predawn raid by CIA operatives. He has been in custody ever since, in secret CIA jails in Europe and the prison at Guantanamo Bay. Before a military tribunal in 2007, Mohammed rattled off a list of conspiracies in which he had participated, including plots to assassinate Bill Clinton and Pope John Paul II and the 1993 explosion beneath one of the World Trade towers that failed to topple it into the other tower.

Mr. Mohammed’s influence wasn’t understood until the so-called Bojinka plot that Khalid Mohammed engineered in a Manila apartment with his nephew, Ramzi Yousef – a plan to explode twelve American commercial aircraft in flight. This plot was Khalid Mohammed’s inspiration for using fuel-laden airliners as jet-propelled fire bombs, according to the 9/11 commission report.

In 1996, Khalid Mohammed went to Afghanistan seeking an audience with Osama bin Laden; Mohammed had a grand plan and he needed a patron. The plan was to simultaneously seize control of ten airliners and then crash nine of them into prominent civilian landmarks in the United States. When the orgy of ruin was done, Khalid Mohammed would emerge from the single plane that had landed intact and begin scolding Americans about their alliance with Israel.

Osama bin Laden rejected this plan as too cumbersome to succeed, but he re-imagined a scaled-down version of the plot three years later and summoned Khalid Mohammed to Kandahar. Their revised plot would be the blueprint for the jetliner attacks that would reduce almost three thousand people to little more than shredded skin and fingernails.

When the special-op team pulled him from his bed in Rawalpundi, Pakistan, the uncomprehending Khalid Mohammed thought he would stand trial for the Bojinka plot. He demanded to be taken to New York City; then he demanded a lawyer. His American education had him spouting like an ACLU pettifogger.

The CIA operatives bagged his ugly head and whisked him out of Pakistan. When the hood came off he was in Afghanistan. Later he would be moved to a former Soviet military base in northern Poland. In September of 2006 he was transported to the detention facility at Guantanamo Bay.

The Venue

On November 13th, 2009, the maladroit Eric Holder went public with Barack Obama’s decision to put Khalid Sheikh Mohammed and four other terrorists on trial in a federal courthouse in Lower Manhattan. With only hours to go before the announcement, Eric Holder had made calls to New York’s Mayor Michael Bloomberg and Governor David Paterson. The city’s Police Commissioner, Raymond Kelly, got a call from Preet Bharara, the United States attorney in Manhattan, whose office had been selected to try all five cases. But by the time Barack’s clumsy puppet made his calls, the Big News had already been broadcast by the news media. That’s how Mayor Bloomberg caught wind of it. (N.Y.Times, 1/30/10, p.A3)

Mayor Bloomberg’s first response was approving; he had declared that, “It is fitting that 9/11 suspects face justice near the World Trade Center site, where so many New Yorkers were murdered.” But a mere two months later, the mayor was singing a more somber tune. Here’s why . . .

On January 13th, 2010, Police Commissioner Raymond Kelly addressed a large crowd of businessmen at a New York Police Foundation breakfast and said, “Whatever the merits of holding the trial in Lower Manhattan, it will certainly raise the level of threat.” He added that “securing this area and the entire city for the duration of this event promises to be an extremely demanding undertaking.”

The commissioner elaborated with a detailed account of a security plan that included inner and outer security perimeters, unannounced vehicle checks, bomb-squad personnel at the ready, hazardous-materials teams in waiting and the deployment of counter-sniper teams on the rooftops. The area around the courthouse would be flooded with uniformed police officers, in cars and on horseback. The area would be ringed with 2,000 interlocking steel barriers.

“ ‘The entire audience issued a collective gasp when it became clear that this was an event that could go on for years,’ said one guest, Kathryn S. White, president and chief executive of the Partnership for New York City.”(N.Y.Times, 1/30/10)

Later, the commissioner would express his dismay over the burden the five trials would heap on his department, which had shrunk considerably since Michael Bloomberg became mayor back in 2002. Kelly opined that providing security for these trials would “suck the oxygen” from his department and deprive it of the flexibility to pursue other initiatives.

The mayor also heard from a Lower Manhattan community board that had voted unanimously to move the trials elsewhere; he heard from scores of business and community leaders who urged him to rescind his endorsement. Real estate brokers argued that the aura of an armed camp would chill the marketing of apartments in Chinatown and TriBeCa; residents feared they would be banned from local streets; shop owners feared a crushing drop in sales.

The city estimated the cost of the trials to be $200 million a year for security. City Hall aides believed the complicated trials would drag on for five years – for a total security bill of one billion dollars. That’s a thousand million dollars. Ouch!

On January 27th, Mayor Bloomberg said the city could host the trials, but . . . “Can we provide security? Yes. Could you provide security elsewhere? Yeah. The suggestion of a military base is probably a reasonably good one.”

The day before, six senators had written to Eric Holder, urging him to abandon Manhattan as the trial site. The letter, signed by Senators Joseph Lieberman of Connecticut; John McCain of Arizona; Blanche Lincoln of Arkansas; Susan Collins of Maine; Jim Webb of Virginia and Lindsey Graham of South Carolina read, in part, “You will be providing them one of the most visible platforms in the world to exalt their past acts and to rally others in support of further terrorism.”

None of this was news to President Obama. Barack was an accomplished political showman; he was an impresario of political theater. Barack had chosen Manhattan for its rich symbolism. Barack was the guy who had tricked out his campaign jet to look like an Air-Force-One-in-waiting; columnists had jokingly dubbed it “O Force One.” It was the not-yet-president Obama who had spent good money to have his podium emblazoned with a bogus presidential-seal look-alike for his self-invented “Office of the President-elect.” Was that more cheesy or less cheesy than the fake Roman-forum stage set he purchased to use as a campaign rally backdrop?

Nothing would cheer Barack Obama more than to showcase a fulminating Khalid Sheikh Mohammed as he ranted and whined about how he had been tortured by the beastly George W. Bush. It would be a thrilling act of Medici vengeance against the hated W. To keep his hand hidden, Barack employed his loyal hand puppet, Eric Holder, who used the dopey cover story that the 9/11 mastermind must be tried in a civilian court in New York City because the World Trade Center was a civilian target. Really? And what was the Pentagon?

The wide-ranging nature of the same-day assault – with planes hijacked in Boston and Newark – and smashed down in Arlington, Virginia and Shanksville, Pennsylvania, gave the Justice Department a choice of venues for the trials. But Obama yearned for a show trial.

Eric Holder to announced “his” choice of New York City as the venue for the show trial on a Friday, the day bad news is always dumped, because Saturday’s newspaper is always the least read edition of the week. Giving himself deep cover, Barack Obama arranged to be fourteen time zones away in Japan when his hand puppet made the announcement.

Meanwhile, Barack Obama and his attorney general have filled top Justice posts with lawyers who had previously defended enemy combatant detainees – including Osama bin Laden’s personal bodyguard. Indeed, before he joined Team Obama the attorney general had found himself a lucrative niche as a senior partner of the Washington, D.C. law firm Covington & Burling, which represents seventeen Yemenis currently being held at Guantanamo. C&B employed dozens of radical lawyers who treated enemy combatants to more than 3,000 hours of free legal counsel. This situation smacks of conflict of interest because Eric Holder’s decision to pull the terrorist’s trials out of Gitmo and put them in civilian courts steers these cases straight into the hands of Holder’s law-firm buddies. This doesn’t pass the smell test.

Camp Justice

With the righteous self-confidence of an intellectual buck private, our commander-in-chief issued an executive order that the detention facility at Guantanamo Bay be shut down within one year; he did this two days after his inauguration. One year later, Gitmo is still purring along. That’s because Barack didn’t do his homework; he had no idea what to do with the 215 detainees on the eastern tip of Cuba. No American community would welcome them and the applauding Europeans resisted accepting more than a few of those deemed suitable for release. Obama had tried to distinguish himself from George W. & Company and he had suffered a humiliating retreat. Closing Gitmo is an unpopular choice; Congress may never appropriate the funds for closure. Mr. Obama made no mention of Guantanamo in his State of the Union address.

Three al Qaeda terrorists, among them Osama bin Laden’s chauffeur, have already been convicted in Gitmo military tribunals. Camp Justice was built in 2007 for the bargain price of $12 million; it meets the highest security standards for high-profile trials. There are metal and chemical detectors at all entrances; the place is wrapped in razor wire and patrolled by armed military personnel. Reporters are allowed a single pen and legal pads only – no spiral-wound notebooks with wires. Women wearing under-wired bras get a double check from a matron.

The courtroom is windowless; there is a glassed-in sound proof spectators’ gallery. The speakers that relay courtroom testimony into the gallery are on 20-second delay; the sound can be switched off when classified information is discussed. The courtroom is wired to convey translations of testimony in five languages. The proceedings are recorded by ten cameras. Best of all, the courtroom is not surrounded by millions of innocent bystanders.

The nearby “village” can accommodate 550 people; it includes a media room and living and office spaces for attorneys and the media. There are moveable detention cells for transporting defendants to and from the courtroom. It was in this courtroom during a boisterous ten-hour arraignment in June of 2008 that Khalid Sheikh Mohammed and three others declared their desire to become martyrs. They could have been accommodated with an expeditious trial right there at Camp Justice but the new president was itching for a show trial with a more affecting backdrop. Obama shut down the pre-trial proceedings soon after taking office.

“How can you be more likely to get a conviction in a [civilian] court than that?” Senator Jon Kyl (R-Ariz.) had asked Eric Holder during a Senate Judiciary Committee meeting. The attorney general had responded that his decision was not based “on the whims or desires of Khalid Sheikh Mohammed . . .” Of course it wasn’t; his decisions are based in the whims of Barack Obama. For all his bravado, it’s unclear if our novice president understands what sort of defendant a civilian court would be dealing with. A little history . . .

Back in the year 2000 a former top aid to Osama bin Laden was in custody at the very same Manhattan lockup that would accommodate Khalid Sheikh Mohammed and his four co-defendants. Mamdouh Mahmud Salim was awaiting trial for his role in the bombing of two U.S. embassies in Africa. It was then that Salim surprised federal prison guard Louis Pepe with a blinding spray of hot sauce from a “honey bear” plastic squeeze bottle. Salim then pulled out a spike that he had ground from a plastic comb and he plunged the spike into Officer Pepe’s left eye. The spike went through the officer’s eye and deep into his brain causing severe permanent damage to his vision, speech and movement. Salim’s lawyer, Richard Lind, recently observed that “The prison [in Manhattan] is not very secure. Maybe things have improved since then, but I think it would be very difficult to manage.”

The last major al Qaeda trial also serves as a cautionary tale. During a pre-trial hearing, al Qaeda defendant Wadih El-Hage sprang from the jury box that held several defendants and lunged toward the judge who used his tall black chair to shield himself. The perp was tackled by a deputy U.S. marshal and slammed against a wall. So, even with extra security, a civilian courtroom may be a second-best venue.

The Trial

After his very well publicized decision to try the five terrorists in the heart of Manhattan, Eric Holder retreated from that position under critical fire from the city’s Democrat mayor and the state’s Democrat governor. We were told that other venues would be considered. After some consideration, Obama’s hand puppet once again popped up from behind a podium and told the media that crowded Manhattan was still on the short list of possible trial venues.

A trial in Manhattan would mean finding twelve New Yorkers willing to endure many long months of heart-wrenching testimony in a realm of relentless air-tight security. During the 2006 trial of Zacarias Moussaoui, jurors were picked up and dropped off at ever changing rendezvous locations far from the courthouse; they were hustled into the courthouse each day behind a protective wall of police SUVs under the protective cover of vigilant sniper squads. Their identities were kept a secret, even from the judge, to prevent jury tampering, intimidation or reprisals.

Moussaoui’s lawyer, Edward MacMahon, remarked that “To this day I wouldn’t be able to tell you who any of the jurors were.” He added that the grim testimony detailing the deaths of thousands of victims took a heavy emotional toll on the jurors. “I’ve read that some of the jurors felt it was like going to ten funerals a day.”

The lone holdout against the death penalty, Juror 526, would write that the trial was “emotionally overwhelming.” “Most of us shared in the nightmares described by so many family members,” he said. He described how he and others suffered migraine headaches, anxiety and insomnia. “The centerpiece of our jury room table was a bowl of Tylenol.”

Christopher Lofting, the jury foreman during the July 2001 trial of terrorist Mokhtar Haouari in Manhattan, opined that the high-profile trial of Khalid Sheikh Mohammed would prompt a gale of pleas to be excused from frightened potential jurors. “In my case they had a hell of a time getting together a jury that wanted to play and this was all pre-9/11,” said Mr. Lofting. “Getting the jury together this time is going to be hell on wheels.” (NY Daily News, 11/16/09)

None of this effort is necessary. As former Attorney General Michael Mukasey observed: “Those moving this process forward should consider whether the main purpose is to protect the citizens of this country or to showcase the country’s criminal-justice system – which has been done before and which failed to impress Khalid Sheikh Mohammed.” Exactly. But Barack Obama’s purpose is to have a show trial – he is foremost an impresario of political grand opera.

Back in November of 2009, NBC’s Chuck Todd had asked President Obama to respond to critics who took offense that he had made Khalid Sheikh Mohammed an honorary American citizen by gifting him every constitutional protection. The President had replied: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.”

Oops! The President’s proclamation that a conviction was foreordained made a laughing stock of his pretensions that he was showcasing American impartial justice. When Senator Herb Kohl (D-Wis.) had asked Eric Holder what would happen if Mohammed’s conviction were tossed out because the defendant had been the subject of interrogation methods forbidden in civilian criminal investigations, Mr. Holder had likewise signaled that punishment was foreordained. “Failure is not an option,” Holder had bluntly replied.

In the event of an overturned conviction, it would be legitimate under the laws of war to keep Khalid Sheikh Mohammed and his co-defendants under lock and key until the end of hostilities, but this would undermine the rationale for showcasing the American civilian justice system in the first place. By detaining the defendants after the administration had failed to establish their guilt, Obama would be sending the world a message that is the polar opposite of the one he originally intended. Obama’s grandly staged show trial would be re-broadcast by Al Jazeera, the Arab-language mouthpiece for Osama bin Laden, as a mockery of justice, as the Great Satan’s illusion of justice.

So, Barack Obama is playing right into the hands of Osama bin Laden when he puts bin Laden’s lieutenant on trial in the civilian court system.

“The trial will be more than just a soapbox for him,” said Jarret Brachman, author of “Global Jihadism” and a terrorism consultant to several government agencies. “It will be a chance for him to indict the entire system . . . I’m sure he’s been waiting for this for a very long time,” Mr. Brachman added. (N.Y.Times, 11/15/09)

Likewise, Zacarias Moussaoui, the so-called 20th hijacker, made his civilian trial a spectacle. Terrorists love a big stage and no stage is bigger than New York City.

“There’s reason to believe he will take advantage of a public platform – more public than Guantanamo afforded him – to publicize his jihadist views,” said David H. Laufman, a Washington lawyer and former federal terrorism prosecutor. (N.Y.Times, 11/14/09)

The reason we have a Guantanamo in the first place is to avoid the circus a civilian trial will become. But if the first purpose is to have a show trial, then the President is placing politics above principle.

Once the Justice Department brings formal terrorism charges against him, Khalid Sheikh Mohammed might seek to enter a guilty plea or he might seek to martyr himself in the eyes of the Muslim world. Another complication would be the defendants’ desires to act as their own lawyers. Mohammed and two other defendants – Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Ali – had been representing themselves in military proceedings in Guantanamo, under the supervision of lawyers. Waleed bin Attash and Ramzi bin al-Shibh had been trying to fire their legal teams.

We should spare ourselves the three-ring circus of a civilian show trial complete with grandstanding anti-American tirades by self-confessed mass murderers. In response to President Obama’s politically-driven hunger for a Manhattan show trial, the Wall Street Journal countered

“Please spare us the talk of the ‘rule of law.’ If that was the primary consideration, the U.S. already has a judicial process in place. The current special military tribunals were created by the 2006 Military Commissions Act, which was adopted with bipartisan Congressional support after the Supreme Court’s Hamdan decision obliged the executive and legislative branches to approve a detailed plan to prosecute the illegal ‘enemy combatants’ captured since 9/11.

“Contrary to liberal myth, military tribunals aren’t a break with 200-plus years of American jurisprudence. Eight Nazis who snuck into the U.S. in June 1942 were tried by a similar court and most were hanged within two months. Before the Obama Administration stopped all proceedings earlier this year pending yesterday’s decision, the tribunals at Gitmo had earned a reputation for fairness and independence.” (Wall Street Journal, 11/14-15/09)

Attorney General Eric Holder himself has acknowledged the worthiness of military tribunals by giving his approval to the trial-by-tribunal of five accused Islamic terrorists, including the Guantanamo detainee who planned the 2000 bombing of the USS Cole docked in Yemen. Mr. Holder’s nonsensical decision to try the Cole bomber before a military commission because the Cole was a military target and to try the World Trade Center bombers in a civilian court because they murdered civilians, demonstrates Mr. Holder’s complete misunderstanding that both attacks were the work of unlawful enemy combatants who believed themselves to be at war with the United States of America. Mr. Holder’s strained rationalizations aren’t rooted in legal consistency; they are purely political judgments tailored to please Mr. Holder’s political boss, Barack Obama.

A civilian trial for Khalid Sheikh Mohammed will be an intelligence bonanza for al Qaeda and all other parties hostile to the United States; we know this from past experience. Once the defendants have been Mirandized and made honorary citizens with full constitutional protections their lawyers will demand that the government produce all the information it has on them – and how the government acquired that information. These disclosures include the government’s methods and sources for acquiring information and everything the government knows about the defendants’ relationships to other al Qaeda operatives. These disclosures will enable al Qaeda to alter plans and relocate personnel whose covers have been blown. It will better enable al Qaeda to understand American intelligence-gathering and to expand into zones that are hidden from us.

During the 1993 trial of the first World Trade Center bombers, the government was compelled to relinquish a list of 200 possible co-conspirators. This list was a blueprint of American intelligence gathering on al Qaeda. According to Andrew McCarthy, the federal prosecutor who tried the case, this list was delivered to Osama bin Laden in Sudan within days of its appearance as a court exhibit. Bin Laden, whose name was on this list, could instantly see which of his operatives had been compromised. Then he began unraveling the riddle of how American intelligence had gathered its information.

Zacarias Moussaoui, who was arrested just before 9/11, never saw a jury because his lawyers put the court in a stranglehold – they simply demanded that the government fork over all the intelligence it had on the defendant. The case became a four-year opera with Moussaoui center stage giving voice to his anti-American rants. This ordeal ended only because Moussaoui chose to plead guilty, thus sparing the government the embarrassment of choosing between the exposure of its intelligence-gathering network or dismissing the case against Moussaoui altogether.

The best venue for the trials of KSM & Co. is a military commission. The Supreme Court has upheld the use of commissions for war crimes. Commission procedures received the approval of Congress in 2006 and 2009. Military commissions have a history that includes World War II, the Civil War and the Revolutionary War. Commissions would guarantee a fair trial while protecting national secrets. Eric Holder has already given the commissions his blessing by virtue of choosing them for the trials of Abu Rahim al-Nashiri and his fellow goons.

The goons in question are Ramzi bin al-Shibh, who helped the 9/11 hijackers enter the United States, guided them to flight schools and assisted the financing of the operation and is believed to be the lead operative in a foiled plot to crash aircraft into London’s Heathrow Airport; Ali Abd al-Aziz, who helped nine hijackers get into the U.S. and gave them $120,000 for expenses and flight training; Mustafa Ahmad al-Hawsawi, who assisted with financing, Western clothing, traveler’s checks and credit cards; Waleed bin Attash, who ran an al Qaeda training camp in Logar, Afghanistan where two hijackers were trained and is believed to have been Osama bin Laden’s body guard and Khalid Sheikh Mohammed, the self-confessed “mastermind” of the 9/11 attacks and the aborted Bojinka plot to blow up twelve airliners in flight. It was Mohammed who provided funding for the 1993 World Trade Center bombing; it was he who sent al Qaeda operative Richard Reid to demolish a trans-Atlantic jetliner with a shoe bomb; it was he who sliced the head from Wall Street Journal reporter Daniel Pearl. In 2008, all of them offered to plead guilty before a military commission and accept execution. But no, Barack Obama couldn’t accept such a quick and tidy conclusion; he yearned for a show trial.

Strange as it may seem, getting death sentences for five self-confessed conspirators who murdered 2,973 people may not be easy. Eric Holder’s declaration that if convicted “ultimately they must face the ultimate justice” – meaning the death penalty – was pure bravado. The challenge of forming a jury pool in liberal New York City calls the outcome of any trial into question.

For example, two al Qaeda operatives who conspired to bomb two American embassies in Kenya and Tanzania received life sentences in 2001 because a Manhattan federal jury deadlocked twice. Two hundred people had been murdered and the liberals still couldn’t bring themselves to execute the mass murderers!

It was because of concern that liberal New Yorkers lack the moral outrage to execute even the most disgusting criminals that the Justice Department chose to prosecute Zacarias Moussaoui in Alexandria, Virginia. The last executions resulting from federal cases in Manhattan occurred in the 1950s, most memorably the trials of Julius and Ethel Rosenberg, who had passed top secret hydrogen-bomb design details to agents of the Soviet Union. It took the threat of burning every Manhattan liberal from the face of the Earth to get a death sentence from these obtuse Manhattanites.

And then we have . . . the Germans. The German government will be sending observers to New York to make certain that evidence provided by German intelligence does not result in a death penalty for the terrorists. A conviction “would scarcely be possible without evidence from Germany,” the lawyer for Ramzi bin al-Shibh told Deutsche Welle. German investigators had provided evidence about the Hamburg terrorist cell on the condition that it not be used to promote a death sentence. “In this case,” Germany’s Justice Minister Sabine Leutheusser-Schnarrenberger told the network Deutsche Welle, “we will observe very closely that the given assurances are kept.” (N.Y.Post, 11/22/09)

With so many drawbacks to a civilian criminal trial we are left to wonder why mass murderers will not be tried in Camp Justice. Is the true purpose to convict the self-confessed killers or is it to convict George W. Bush?

“Asked why he wanted to be attorney general, Eric Holder did not mention national security issues; instead he said he took the job to put a department he loves on track after scandals during the administration of President George W. Bush.” (N.Y.Times, 2/15/10)

Team Obama wants to showcase Bush-era barbarism; they seek to portray George W. as a latter-day Torquemada, eager to torment his captives with medieval methods. The problem for Team Obama is to highlight Bush-era nastiness without provoking outright dismissal of the case when Mohammed asserts the “outrageous government misconduct” defense. This defense relies on the theory that, no matter how obviously guilty the defendant may be, the Constitution prohibits the prosecution of a defendant after government agents have done things that “shock the conscience.” This argument emerged from a 1952 decision written by Justice Felix Frankfurter, in which the Court ruled that the state of California violated the Constitution when it arrested a drug suspect, hauled him to a hospital and directed a doctor to pump illegal drugs out of the perp’s stomach for use as evidence against him at trial.

This was not an illegal search under the Fourth Amendment but, to Frankfurter’s way of thinking, it was outrageous conduct that violated the guarantee of due process because, he felt, the government’s methods were “to close to the rack and the screw” for the Constitution to tolerate. This was a “touchy-feely” decision that had nothing to do with black-letter law – it was all about Felix Frankfurter’s feelings.

Frankfurter’s opinion was so flakey that in the years since the federal appellate courts have divided over the viability of the “outrageous government misconduct” defense, but in some districts, including the influential District of Columbia, it still holds sway, especially in instances of coercion or “brutality to the person.”

This is a problem in cases involving illegal enemy combatants captured in action in far-away places. First of all, what makes an enemy combatant an illegal enemy combatant is the jerk’s complete lack of respect for the laws of war. The Geneva Conventions do not protect combatants who do not respect the laws of war. To enjoy the protections of the Geneva Conventions a combatant must wear the uniform of a recognized state authority; he must be operating under the authority of a recognized state command structure; he must carry his weapon openly; he must not attempt to conceal himself among the civilian population and he must not make war on the civilian population. If the combatant does not comply with all of these strictures, then he is an illegal combatant – he is an outlaw who can lawfully be shot dead on the spot. This applies to spies and saboteurs as well.

For example, in 1942 eight Nazi saboteurs slipped ashore from a submarine under cover of darkness. All eight were dressed as civilians; they were discovered in the act of burying the explosives they intended to use in acts of sabotage. The Supreme Court ruled that a military commission was an entirely fair and appropriate venue for their trials. According to the Court, all eight were “offenders against the law of war, subject to trial and punishment by military tribunals.” The same is true of Khalid Sheikh Mohammed and his four co-defendants.

The Nazi saboteurs were tried and hanged within weeks; the same fate could await the five self-confessed illegal enemy saboteurs who conspired to murder almost 3,000 civilians with flying fuel bombs. But no, Barack Obama and his fellow liberal bedwetters must have their show trial; the urgency of Barack’s big ego must eclipse all common sense. The “outrageous government misconduct” defense was inevitable once Barack Obama publicly offered his personal opinion that waterboarding was torture. Never mind that being waterboarded is a routine ordeal for some troops and intelligence operatives in training; never mind that it does no injury or lasting harm. Barack Obama just had to queer the prosecution of this century’s most notorious terrorists in order to stick it to George W. Bush. Of course, the torture accusation resonated with Obama’s far-left base; we must remember who we are dealing with.

Someone sent me a heads-up about a social movement to prohibit teachers from grading class assignments with red ink. (I’m not making this up.) Words used to describe the effect of red notations on school assignments included “stressful,” “confrontational,” “threatening” and “demoralizing.” School guidelines in Queensland, Australia warn that the color red can damage students psychologically. Red marking pens are banned from the elementary school in Trumbull, Connecticut. Joseph Foriska, the principal of Thaddeus Stevens Elementary in Pittsburgh has instructed his teachers to grade student work using pens with “pleasant-feeling tones” so that students don’t feel “demeaned.” As Foriska put it: “The color is everything.”

Now imagine how people like these would describe waterboarding if they are now describing red ink as confrontational, threatening, demeaning and demoralizing. The howls would reach to heaven; the indignation would know no end; the hyperbole would redefine the boundaries of spoken language. Manhattan Island is bursting with liberals – people who measure their self-worth by the intensity of their empathy. Every attorney for a terrorist knows that the most lenient juries will be found in Manhattan civilian courtrooms.

Saving Obama

The first American authority to lay hands on these war criminals are not prosecutors intent on building an immaculate prosecution, they are warriors intent on pursuing there mission and protecting their comrades; warriors seek to know the scope and intent of the enemy. Captured combatants are detained to prevent them from rejoining their fellow combatants; they are not being held as a form of punishment.

Some detainees are subjected to discomfort in the hope that they will yield useful and lifesaving information. In the case of Khalid Sheikh Mohammed, he sang like a bird; the man became a gushing fountain of useful information. Mohammed blabbed about dozens of al Qaeda plots, including a “second wave” of 9/11-style attacks on the Library Tower in Los Angeles, the Sears Tower in Chicago, the Plaza Bank Building in Seattle and the Empire State Building. There were plots to attack oil tankers and U.S. naval ships in the Straits of Hormuz, a plan to bomb the Panama Canal, a planned attack on the New York Stock Exchange, plans to bomb U.S. embassies in Indonesia, Australia and Japan, planned surveillance of U.S. nuclear power plants for the purpose of attacking them, a plot to murder Pope John Paul II and a plot to assassinate President Bill Clinton during his visit to the Philippines.

As the Wall Street Journal observed:

“As long as George W. Bush and Dick Cheney were responsible for keeping America safe, Democrats could pander to the U.S. and European left’s anti-antiterror views at little political cost. But now that they are responsible, American voters are able to see what the left really has in mind, and they are saying loud and clear that they prefer the Cheney method.”

The decision by Team Obama to try some detainees before military tribunals and others in civilian courtrooms is philosophically incoherent and morally confused. The clear-thinking Bush administration activated military commissions that were endorsed by Congress, blessed by the Supreme Court, sanctioned by tradition and custom designed for cases such as these – national security information is protected and the defendants enjoy generous due-process protections.

The Act

The United States Military Commissions Act of 2006 was drafted in the wake of the Supreme Court’s Hamdan v. Rumsfeld decision with the stated purpose “to authorize trial by military commission for the violations of the law of war.” This law established procedures for trying alien unlawful enemy combatants engaged in hostilities against the United States. The procedures for military commissions in the Act are based on the procedures for trial by general court martial under Chapter 47 of the Uniform Code of Military Justice. Commissions created under the Act afford all necessary “judicial guarantees which are recognized as indispensable by civilized peoples” as enumerated in Article 3 of the Geneva Conventions. The commissions do not have jurisdiction over lawful enemy combatants as described by the Geneva Conventions. No person, without his consent, may be tried a second time for the same crime by a military commission.

The Act of 2006 was amended in 2009 to enhance the protections of defendants by restricting the use of coerced and hearsay evidence and by enlarging defense counsel resourses. The Act denies detainees any right to habeas corpus review, which would allow then to command the attention of the civilian courts. This denial is supported on the grounds that all of the unlawful enemy combatants being considered for trial by military commissions are aliens captured and held outside the United States and whose only relationship to the United States is their decision to wage barbaric war against the United States.

John Yoo, a professor of law at the University of California, Berkley, and a former official of the Bush Administration Justice Department, has characterized the Military Commissions Act as a “stinging rebuke” of the Supreme Court’s Hamdan v. Rumsfeld decision, which Professor Yoo called “an unprecedented attempt by the Court to rewrite the law of war and intrude into war policy.” Yoo cited Johnson v. Eisentrager, in which the Court decided that it would not hear habeas corpus claims brought by alien enemy prisoners held outside the United States. The Court refused to interpret the Geneva Conventions to grant rights in civilian courts against our government.

Professor Jeffery Addicott of St. Mary’s University School of Law and formerly a Lieutenant Colonel in the U.S. Army Judge Advocate General’s Corps, wrote that “the new Military Commissions Act reflects a clear and much-needed congressional commitment to the war on terror, which to this point has been largely conducted in legal terms by the executive branch with occasional interjections form the judiciary.” In other words, the Act codified the traditional war-making powers of the Commander-in-Chief – the President of the United States.

You’d think Barack Obama would appreciate the efforts of the Bush administration to defend the prerogatives of the presidency, but no. Obama’s ideological bent and his political reflexes had rendered him blindly hostile to all things “Bush.” He had styled himself as the anti-Bush and he wouldn’t shed that pose even if it diminished his presidency.

One of Obama’s signal acts was to pander to his base on the anti-anti-terrorism left – those folks who believe America provoked al Qaeda into murdering thousands of civilians one sunny September morning. Obama told Eric Holder to go after Bush-era Justice Department lawyers who had offered their opinions about the legal boundaries of harsh interrogation techniques; Obama terminated the Central Intelligence Agency’s use of “enhanced interrogations” when questioning hardened al Qaeda operatives; he terminated the congressionally-approved military trials of al Qaeda leaders already in progress.

Obama chose to grant de facto American citizenship on both Khalid Sheikh Mohammed and the Christian-hating Umar Farouk Abdulmutallab, by trying them in civilian courts with full American-citizen constitutional privileges. Abdulmutallab, who tried to explode an airliner in flight over Detroit on Christmas Day, was read the Miranda warning about self-incrimination no less than three times in the first hours of his detention. Not content to stop there, Obama endeavored to smear Bush-administration attorneys for the opinions they had offered during the high-pressure days immediately after the 9/11 attacks; Obama dismissed the opinions of career prosecutors who had previously reviewed the evidence and determined that no charges were warranted. Obama wanted to put the Bush administration on trial; he ordered his hand puppet, Eric Holder, to appoint a new prosecutor to re-investigate the CIA’s interrogation of al Qaeda assassins.

Among the patriots Obama chose to persecute were John Yoo and Jay Bybee, who is now a federal judge on the court of appeals in San Francisco. In both cases their alleged crime was answering extremely difficult questions from the CIA, the National Security Council and the White House about when interrogation techniques might be harsh enough to be prohibited acts of torture. Ignoring decades of Justice Department opinions defending the president’s commander-in-chief prerogatives, Holder’s hit squad declared that only Congress enjoyed full authority over wartime strategy; Team Obama accused the two patriots of violating ethical standards, but declined to ever define what those standards were.

The final report was so biased, flawed and beneath the Justice Department’s ethical standards that the department’s senior ethicist, David Margolis, completely rejected its recommendations. When confronted with Mr. Margolis’ critique of this political witch hunt, the pouting Obama crew dropped all ethics charges against the Bush legal advisers.

The callow President Obama, with so few days in the Senate and with no prior executive experience and while waging three wars simultaneously in Iraq, Afghanistan and against al Qaeda all over the place, seems unaware of his moral obligation to the men and women serving under his command who are compelled by wartime circumstances to make hard choices. These loyal patriots must not be daunted by the specter of a phalanx of prosecutors, congressional hound dogs and media mudslingers who stand ready to judge every battlefield maneuver by the hometown standards of Smallville, USA.

For example, in 2005, a Navy Seal team that had been dropped into Afghanistan chanced upon some goat herders who were very likely sympathetic to the Taliban and therefore likely to alert the Taliban to the Seal team’s presence in the area. Against his better judgment, the team leader ordered the release of the goat herders because of his concerns about being second guessed by media bleeding hearts and political grandstanders.

In less than an hour the Seal team was swarmed by 80 Taliban gunmen who killed all but one of the Seal team and then killed sixteen more Americans who arrived on a helicopter rescue mission. This tragedy would have been averted if the team’s leader had some confidence that his countrymen weren’t overly concerned about the imaginary due-process rights of far-away barbarians.

We are in a struggle with Seventh Century savages. Their branch of Islam could have turned its face toward the future, but chose instead to turn backward to the remote past; they are only too happy to enjoy the material blessings created by educated infidels but are themselves too backward to produce a single new idea or invention. In the greater scheme of things they are non-contributing parasites – self-important homicidal jerks with nothing to offer the world but their barking-mad vision of global Islam.

Sadly for us, our president wants to persecute the very people who have struggled to save his presidency – people such as John Yoo and Jay Bybee. By defending the president’s constitutional prerogatives to fight our enemies in a vigorous and coherent way, these patriots have enhanced Obama’s ability to keep us all safe – if he so chooses.

Almost nothing our adjunct-professor-turned-president has done regarding terrorism has made anyone feel safer. Whether it’s his rush to Mirandize everyone in sight or his loud proclamations that mass murderers will not be interrogated too harshly or his whimsical commands about who gets a down-home civilian trial and who doesn’t, President Obama has consistently put pandering to America’s critics before the needs of Americans. Barack just can’t bring himself to admit that Gitmo and the military commissions – for all their imperfections – are reasonable responses to the demonic problems that come with fighting a loose-knit coalition of bloodthirsty warlords and the homicidal rabble they attract. Military commissions provide a secure environment for the exposition of classified evidence, while the accused enjoy the right to an attorney, the right to make their cases in full and all the fundamental rights of due process. It’s an amazingly generous deal for the sort of savages who murder all their captives and splash acid in the faces of little girls who want to go to school.

Against all reason, Barack Obama is still contemplating a billion-dollar show trial for Khalid Sheikh Mohammed that will cripple Lower Manhattan for five years. This trial would be a grotesque monument to the towering twin hatreds of two dedicated haters: Here we have the colossal hatred of Khalid Sheikh Mohammed for all things non-Islamic and over there we have Barack Obama’s monstrous hatred for George W. Bush, whom Obama yearns to put on trial as an uncharged co-defendant at Mohammed’s political-theater show trial.

This cannot end well – it’s too disruptive, too expensive and far too tainted by Barack Obama’s politically-driven ulterior motives. Here’s a better alternative: Delay the trials until Barack Obama is no longer president – three more years. After that, with any luck, we can leave all the trial preparations to an adult.