Scott Spiegel

Perhaps it’s not surprising that President Obama would think nothing of subjecting Manhattan to the spectacle of a civilian court trial against Khalid Sheikh Mohammed, mastermind of the 9/11 attacks.  This is the administration that thought having an F-16 trail Air Force One around Ground Zero on a workday morning was a good idea.

On the other hand, perhaps we should view KSM as Obama’s consolation prize for failing to secure the 2016 Olympics on U.S. soil.  (How much tourism revenue will KSM’s trial bring to lower Manhattan?)

To try KSM and his four co-conspirators in federal court, New York will have to create a de facto Guantanamo Bay—one that is smaller than but as secure as the real thing.  The city will need to spend millions of dollars ensuring extra protection for the courthouse, the densely populated neighborhood—indeed all of downtown Manhattan—including shipping in hundreds of U.S. marshals from other jurisdictions.  They will have to make special efforts to protect the judge, prosecutors, jury, federal agents, and witnesses, all of whom will receive death threats and will need armed protection.

As Rudy Guiliani noted, trying those who planned 9/11 in a civilian court in lower Manhattan is like trying those who planned Pearl Harbor in a civilian court in Hawaii.

The trial will drag on for years and New York will face extra, unnecessary risk during every day of the circus.  Manhattan will be placed in the international spotlight and will become a prominent stage for jihadists to stage a suicide or car bombing.  Would-be attackers won’t have to do it right in front of the courthouse—anyplace in Manhattan would capture headlines and give encouragement to the Islamist cause worldwide.

Defenders of Obama’s decision claim that isolated individuals are unlikely to engage in a spectacular attack in Manhattan without long-term planning and financial support from an embedded terrorist cell.  Tell that to soldiers lining up for eye exams who survived Nidal Hasan’s shooting spree at Fort Hood last week.

Mayor Mike Bloomberg, Police Commissioner Ray Kelly, and other city officials all assure us that New York’s Police Department can handle any potential disruption.

Let’s see: in 2000, in the same court in which KSM et al. are to be tried, bin Laden aide Mamdouh Salim, awaiting trial for his role in the bombing of U.S. embassies in Africa, blinded a prison guard by squirting hot sauce in his face, then plunged a comb sharpened into a dagger deep into the guard’s eye, nearly killing him and causing permanent brain and sight damage.  Salim’s plan, later discovered in notes stored in his prison cell, involved taking hostages and helping co-defendants escape.

Another al-Qaida suspect, Wadih El-Hage, pounced on the judge during the middle of a pre-trial hearing and had to be wrestled to the ground by federal marshals.  El-Hage got within several feet of the judge, who had shielded himself with his chair.

Zacarias Moussaoui’s hearing in lower Manhattan was enough of an exhibition, and that was just a six-week sentencing trial.  His initial prosecution in Virginia took four years, mostly due to wrangling over rules of evidence, and ended only because he finally confessed his role in the 9/11 hijackings.  In addition to being verbally abusive to those involved in the proceedings, shouting curses at the jury, and gloating aloud when he didn’t get the death penalty, Moussaoui had demanded that captured al-Qaeda members appear as witnesses in his trial, a request prosecutors could not deny according to the rules of the game they had agreed to play.

Even if the terrorist suspects bring no physical attack to fruition, a trial in civilian court in Manhattan would be, as Charles Krauthammer labeled it, “the second half of the terror attack,” in which the perpetrators loudly justify their ideology and actions to the world and delight in the suffering of their victims.

If the prospect of welcoming KSM and company to the Big Apple isn’t enticing enough, there’s also the little matter that these terrorists have no right to a trial in civilian court—in fact, they have no rights at all.  Only U.S. citizens and resident aliens have constitutional rights, such as the writ of habeas corpus, because only they have sworn to uphold the ideals of the Constitution and abide by its rules.  Not only do radical foreign Islamists not support the Constitution, they actively use it against us to shield themselves from the consequences of atrocities they commit.  As Tim Sumner and Debra Burlingame noted in a letter to the president, “It is incomprehensible… that the same men who today refer to the murder of our loved ones as a ‘blessed day’… should be the beneficiaries of a social compact of which they are not a part, do not recognize, and which they seek to destroy: the United States Constitution.”  As Neil Cavuto noted, the 9/11 terrorists used our planes as weapons against us; now they plan to use our justice system for the same purpose.

The ridiculous thing about all of this is that the only reason Obama wants to try KSM in New York is to further the goal of shutting down Guantanamo Bay.  Had he not made such a promise and signed an executive order to enforce it on the first day of his presidency, even Obama might have been sane enough not to bring these terrorists to a courthouse four blocks from Ground Zero.  As noted by Michael Mukasey, George W. Bush’s Attorney General, “What’s followed [from Obama’s campaign promises] has seemed in many instances to be a system in which policy is fashioned to fit and proceed rhetoric rather than being thought out in advance with arguments then formulated in support of it.”

Champions of the president’s decision counter: “Of course New York can handle these trials—New Yorkers are tough!  New York courts handle all kinds of dangerous defendants.”  The question isn’t whether New York can put up with this, but why New York should have to put up with this.

A couple of months ago, the mainstream media was snickering because a national survey of liberal historians had rated George W. Bush to be among the least successful of all American presidents, mostly on the basis of his conduct in the war against Islamic terrorists.  Given Obama’s adoration by the media, his wholesale reversal of nearly every one of his foreign policy campaign promises, and his Xeroxing of Bush’s war strategy, Bush should reach… oh, about #2 on the presidents’ list by the end of Obama’s tenure.

Candidate Obama wailed for years about Bush’s war in Iraq and promised to remove all troops by March 2009.  The latest plan, which President Obama scrawled on a cocktail napkin at one of his Wednesday night White House soirees, is to remove them by August 2010 and leave up to 50,000 troops in place for security purposes—and if you believe those dates and numbers won’t be extended further as “conditions change on the ground,” you probably voted for Obama.  Admittedly, “Obama lied, kids died” doesn’t have quite the same ring, but I think if Bush had pulled a fast one like this, we would have heard a few more complaints about his mendacity.

Obama formerly countered the spectacularly successful surge in Iraq, claiming that there was no way it could work—then turned around as President and implemented something in Afghanistan that starts with ‘s’ and rhymes with ‘urge’ but is definitely not a surge.

As Senator, Obama rejected special funding measures for U.S. anti-terror military conflicts—then, while president, asked Congress for an additional $83 billion for the wars in Iraq and Afghanistan; you know, the ones we were fighting all along.  On the campaign trail, Obama whined about the cost of war and swore that funding would not be approved without benchmarks; when Congress’s bill came to a vote, Obama asked that the benchmarks be removed.

Obama once complained that Predator drone air attacks on suspected terrorists in Afghanistan and Pakistan were killing civilians; as President, he ramped up use of this targeted killing tactic at a higher rate and with more civilian casualties than under Bush.

Obama at one point criticized the Patriot Act, including its provisions allowing warrantless wiretapping and obtaining suspects’ financial, travel, and telecommunications records without their knowledge; now he supports renewing the act.

Obama previously opposed the use of the “state secrets doctrine” to prevent the required disclosure of evidence in court that would harm national security; in several cases stemming from the previous administration’s surveillance and interrogation practices, Obama’s Justice Department has invoked that very doctrine to prevent the disclosure of evidence.

Obama used to resist the practice of rendition, or capturing terrorist suspects and sending them to a third country for interrogation; recently he vowed to continue the practice.

At one time, Obama spoke out against the use of enhanced interrogation techniques on high-level terrorist suspects.  Recently, however, he set up a committee to look into whether CIA interrogators should be allowed looser standards than military interrogators—i.e., he left the door open for these techniques to be used again if he deems necessary.  He rejected the call to establish a Truth Commission into the Bush administration’s interrogation techniques and the prosecution of those who approved or implemented them.  When Nancy Pelosi claimed the CIA lied to her about the use of these techniques, Obama did not publicly support her, and allowed CIA director Leon Panetta to release a memo contradicting her claim.

In the past, Obama contested the practice of detaining terrorist suspects without trial; yet his Justice Department filed a brief claiming that his administration can hold for an indefinite period of time the following: Al Qaeda members, Taliban members, “associated forces,” and anyone who “substantially” supports them, which includes about half of Congress.  Federal judge Reggie Walton slyly mocked the Obama administration’s arguments as drawing “metaphysical distinctions” between his and Bush’s policy that were “of a minimal if not ephemeral character.”

Obama wrung his hands over denial of habeas corpus to terrorists in Guantanamo but has upheld the Bush position on denying habeas corpus regarding detainees’ conditions of confinement in Afghanistan’s Bagram prison, which is sort of a Guantanamo Express.

More recently, Obama revived military tribunals for Gitmo detainees after having called them an “enormous failure” and sworn to end them (the tribunals, not the detainees).

Finally, last week Obama changed his mind and decided he would oppose the release of photos documenting abuse of detainees at Abu Ghraib.

It shouldn’t be this way for the former Bush administration.  After seven-and-a-half years of doing the right but unpopular thing, suffering precipitous drops in their approval ratings, and enduring uninformed screaming from every corner of the media about their Nazi-like tendencies, Bush and Cheney shouldn’t be dependent for their legacy on the eleventh-hour conversion of an irresponsible, wet-behind-his-big-ears neophyte who isn’t adult enough to serve as Commander in Chief.  The Bush policies should have been praised all along for keeping us safe, and any candidate who ran headfirst against them should have been defeated in a landslide.

But at least Bush’s “rehabilitation” is happening sooner than we could have hoped—just several months into the subsequent administration.  Any honest commentator must admit that it is happening squarely on the back of the feckless Obama.