Are we at war—or not?
For if we are at war, why is Khalid Sheikh Mohammed headed for trial in federal court in the Southern District of New York? Why is he entitled to a presumption of innocence and all of the constitutional protections of a U.S. citizen?
Is it possible we have done an injustice to this man by keeping him locked up all these years without trial? For that is what this trial implies—that he may not be guilty.
And if we must prove beyond a reasonable doubt that KSM was complicit in mass murder, by what right do we send Predators and Special Forces to kill his al-Qaida comrades wherever we find them? For none of them has been granted a fair trial.
When the Justice Department sets up a task force to wage war on a crime organization like the Mafia or MS-13, no U.S. official has a right to shoot Mafia or gang members on sight. No one has a right to bomb their homes. No one has a right to regard the possible death of their wives and children in an attack as acceptable collateral damage.
Yet that is what we do to al-Qaida, to which KSM belongs.
We conduct those strikes in good conscience because we believe we are at war. But if we are at war, what is KSM doing in a U.S. court?
Minoru Genda, who planned the attack on Pearl Harbor, a naval base on U.S. soil, when America was at peace, and killed as many Americans as the Sept. 11 hijackers, was not brought here for trial. He was an enemy combatant under the Geneva Conventions and treated as such.
When Maj. Andre, the British spy and collaborator of Benedict Arnold, was captured, he got a military tribunal, after which he was hanged. When Gen. Andrew Jackson captured two British subjects in Spanish Florida aiding renegade Indians, Jackson had both tried and hanged on the spot.
Enemy soldiers who commit atrocities are not sent to the United States for trial. Under the Geneva Conventions, soldiers who commit atrocities are shot when caught.
When and where did Khalid Sheikh Mohammed acquire his right to a trial by a jury of his peers in a U.S. court?
When John Wilkes Booth shot Abraham Lincoln, alleged collaborators like Mary Surratt were tried before a military tribunal and hanged at Ft. McNair. When eight German saboteurs were caught in 1942 after being put ashore by U-boat, they were tried in secret before a military commission and executed, with the approval of the Supreme Court. What makes KSM special?
Is the Obama administration aware of what it is risking by not turning KSM over to a military tribunal in Guantanamo?
How does Justice handle a defense demand for a change of venue, far from lower Manhattan, where the jury pool was most deeply traumatized by Sept. 11? Would not KSM and his co-defendants, if a change of venue is denied, have a powerful argument for overturning any conviction on appeal?
Were not KSM’s Miranda rights impinged when he was not only not told he could have a lawyer on capture, but that his family would be killed and he would be water-boarded if he refused to talk?
And if all the evidence against the five defendants comes from other than their own testimony under duress, do not their lawyers have a right to know when, where, how and from whom Justice got the evidence to prosecute them? Does KSM have the right to confront all witnesses against him, even if they are al-Qaida turncoats or U.S. spies still transmitting information to U.S. intelligence?
There have been reports that in the trials of those convicted in the first World Trade Center bombing, sources and methods were compromised, weakening our security for the second attack on Sept. 11.
If the trial is held in lower Manhattan, how much security will be needed to protect against a car bomber who wants the world to see a mighty blow struck against the Great Satan? And if, as some suggest, the trial should be held on Governor’s Island, would that not make the United States look like a nation under siege?
What do we do if the case against KSM is thrown out because the government refuses to reveal sources or methods, or if he gets a hung jury, or is acquitted, or has his conviction overturned?
In America, trials often become games, where the prosecution, though it has truth on its side, loses because it inadvertently breaks one of the rules.
The Obamaites had best pray that does not happen, for they may be betting his presidency on the outcome of the game about to begin.