Holder’s al Qaeda Incentive Plan

Holder’s al Qaeda Incentive Plan

By William McGurn

Wall Street Journal, November 17, 2009

When it comes to terrorists, you would think that an al Qaeda operative who targets an American mom sitting in her office or a child on a flight back home is many degrees worse than a Taliban soldier picked up after a firefight with U.S. Army troops.

Your instinct would be correct, because at the heart of terrorism is the monstrous idea that the former is as legitimate a target as the latter. Unfortunately, by dispatching Khalid Sheikh Mohammed and other al Qaeda leaders to federal criminal court for trial, U.S. Attorney General Eric Holder will be undermining this distinction. And the perverse message that decision will send to terrorists all over this dangerous world is this: If you kill civilians on American soil you will have greater protections than if you attack our military overseas.

"A fundamental purpose of rules such as the Geneva Conventions is to give those at war an incentive for more civilized behavior—and not targeting civilians is arguably the most sacred of these principles," says William Burck, a former federal prosecutor and Bush White House lawyer who dealt with national security issues. "It demolishes this principle to give Khalid Sheikh Mohammed even more legal protections than the Geneva Conventions provide a uniformed soldier fighting in a recognized war zone."

We don't often speak of incentives in war. That's a loss, because the whole idea of, say, Geneva rights is based on the idea of providing combatants with incentives to do things that help limit the bloodiness of battle. These include wearing a uniform, carrying arms openly, not targeting civilians, and so on.

Terrorists recognize none of these things. They are best understood as associations of people plotting and carrying out war crimes, whether that means sowing fear with direct and indiscriminate attacks on marketplaces, offices and airlines—or by engaging enemy troops without distinguishing uniforms, so that the surrounding civilians essentially become used as human shields. Terrorists reject both the laws of war and the laws of American civil society. To put it another way, they reject both the authority and the obligations their legal rights imply.

None of this seems to bother Mr. Holder. Since he dropped his bombshell on Friday, much commentary has focused on the possibility that KSM might be found not guilty. That, however, is unlikely: Mr. Holder is not a fool, and everyone in the Obama administration appreciates the backlash that would occur if a KSM trial results in an acquittal. Thus, the men he will send for trial will be those against whom he has the most evidence.

The perversity here is that the overwhelming evidence of their war crimes gain them protections denied a soldier fighting in accord with the rules of war.

It even gains them more protections than their associates who attack military targets. This double standard means that the perpetrators of the USS Cole bombing are sent to military tribunals while the perpetrators of 9/11 are sent to federal court.

Andrew McCarthy has a unique perspective on the move to criminal trials. As an assistant U.S. attorney in 1993, he successfully prosecuted Omar Abdel Rahman (the "blind sheikh") for the first bombing of the World Trade Center. Even though the cases were somewhat different—that plot was conceived, plotted and carried out on U.S. soil—Mr. McCarthy says the experience persuaded him that federal trials are a bad way of handling terror.

"At first, I was of the mind that a criminal prosecution would uphold all our high-falutin' rhetoric about the constitution and majesty of the law," says Mr. McCarthy. "But when you get down to the nitty gritty of a trial, you see one huge problem: The criminal justice system imposes limits on the government and gives the defendant all sorts of access to information, because we'd rather have the government lose than unfairly convict a man. You can't take that position with an enemy who is at war with you and trying to bring that government down."

By going down this line, says Mr. McCarthy, Mr. Holder has invited any number of dangers: making the Manhattan courtroom a target for terrorist attack, inviting the disclosure of sensitive intelligence, opening the possibility that some al Qaeda operative will be acquitted and released within the U.S., etc.

Worst of all, he says, is turning the laws of war upside down: Why fight the Marines and risk getting killed yourself or locked up in Bagram forever when you can blow up American citizens on their own streets and gain the legal protections that give you a chance to go free? With this one step, Mr. Holder is giving al Qaeda a ghastly incentive: to focus more of their attacks on American civilians on American home soil.

"It is foolish to think that al Qaeda does not train to our system and look for our vulnerabilities," says Mr. McCarthy. "Remember what Khalid Sheikh Mohammed told his captors when we got him, 'I'll see you in New York with my lawyer.' It seems he knows our weaknesses better than our government does."