On November 13, 2009, Attorney General Eric Holder announced that Khalid Sheikh Mohammed (KSM) and four conspirators will face a trial in federal court in New York for masterminding the 9/11 terrorist attacks that claimed nearly 3,000 innocent American lives. This political decision on behalf of the Obama Administration will have serious negative consequences for national security and the justice system.
Khalid Sheikh Mohammed: Khalid Sheikh Mohammed (KSM), 44, was born to a Pakistani family living in Kuwait and was educated in the United States. KSM is the self-identified mastermind of the 9/11 terrorist attacks on the World Trade Center and Pentagon. The 9/11 Commission report identified him as a "terrorist entrepreneur." Along with Osama bin Laden, KSM selected the 9/11 hijackers, coordinated their financing and training, and directed the attack from abroad. KSM became Osama bin Laden's operations chief after the U.S. invasion of Afghanistan. He was captured by U.S. and Pakistani forces on March 1, 2003, in Pakistan. KSM has been held at Guantanamo since September 2006.
Delayed Justice: In New York, KSM will enjoy the legal rights and benefits of U.S. citizens and resident aliens under the Constitution. A criminal trial will force the government to reveal all of its intelligence on KSM and how it obtained it. Additionally, treating the 9/11 attacks as a simple criminal matter rather than an act of war will hinder U.S. efforts to fight terrorism and sends the wrong signal to U.S. enemies abroad. A costly civilian court trial for KSM will also likely take years. The trial of Zacarias Moussaoui, for example, was tied up in court for more than four years by his lawyers and ended only when Moussaoui pleaded guilty.
Undermining Military Commissions: The terrorist acts plotted by KSM were an act of war against the U.S. and should be prosecuted by a military commission, not a common criminal court. In 2001, President Bush established military commissions, a wartime system of justice used during the Revolutionary War, the Civil War, and World War II. Congress approved procedures for military commissions in 2006 and 2009, and the Supreme Court has upheld their use. Military commissions held at Guantanamo Bay would produce a fair trial while guarding sensitive national security information from exposure. Appropriately, the Administration announced just last week that it would use commissions to try five Guantanamo Bay detainees involved with the 2000 attack on the USS Cole in Yemen.
National Security Liability: At trial, prosecutors will be forced to reveal U.S. intelligence on KSM, along with the methods and sources used in acquiring it. This will enable al Qaeda to better understand our intelligence-gathering techniques and respond accordingly. For example, Osama bin Laden used U.S. government information revealed during the 1993 World Trade Center bombing criminal trial to update and enhance his techniques. KSM's relationships to other al Qaeda figures will also be released, enabling the terrorist group to discard individuals who have been compromised. The KSM trial will also jeopardize future military and intelligence missions. Will U.S. personnel have to read terrorists their Miranda rights on the battlefield? Will they have to collect and secure evidence in a war zone? At what risk to U.S. troops and intelligence professionals?
Unnecessary Cost to New York: The already high security risk to New York will be further increased by locating KSM and his co-conspirators in Manhattan. According to Governor David Paterson (D-NY), "This is not a decision that I would have made...It's very painful...We still have been unable to rebuild that site, and having those terrorists tried so close to the attack is going to be an encumbrance on all New Yorkers." The Southern District Court House is within walking distance of Ground Zero, City Hall, the Brooklyn Bridge, NYPD Headquarters, Wall Street and the Battery Tunnel. The trial of Zacarias Moussaoui in Alexandria, Virginia, demonstrated the risk posed to trial cities. Alexandria was a scene of rooftop snipers, bomb-sniffing dogs inspecting cars, identification checks, and heavily armed patrols. Replicating this security presence on a larger stage in New York will come at a huge cost to the federal, State, and local governments and enormous inconvenience and risk to residents and taxpayers.