As predicted, the five Guantanamo Bay detainees accused of killing nearly 3,000 people Sept. 11, 2001, will use their civilian trials in Manhattan as a propaganda platform to criticize American foreign policy. But forcing jurors in New York to listen to jihadist claptrap just blocks from the World Trade Center site is the least of the problems created by this ill-advised move from military tribunal to federal court.
Khalid Sheikh Mohammed — the self-proclaimed mastermind of the attacks, who also admitted to a U.S. military tribunal that he decapitated former Wall Street Journal correspondent Daniel Pearl — and his four fellow Gitmo detainees were captured and held as enemy combatants under different rules of evidence than those required for homegrown criminals.
Reconciling the treatment of war prisoners who have never set foot on American soil with the constitutional protections traditionally reserved for American citizens will stretch both systems to the breaking point, further blurring the already fuzzy line between domestic criminal acts and acts of war. As Cornell University constitutional law professor Jeremy Rabkin points out, Gitmo detainees are not ordinary felons and ordinary courts are not designed to cope with the special challenges they pose.
By moving the trials to federal court, the Obama administration will deter U.S. intelligence agencies from aggressively pursuing al-Qaida recruits or other terrorists planning to attack the United States. This will put the homeland at greater risk, especially the federal court building where the Gitmo Five will be tried. There’s also the very real possibility of a hung jury or that Mohammed and his four fellow terror suspects will be acquitted.
What then? Will they be released on the spot or allowed to return to their countries of origin to plot future attacks? Will they be eligible for civil damages stemming from harsh, but Justice Department-approved, interrogation techniques used on them, such as waterboarding? And if the Gitmo defendants claim they can’t get a fair trial in the U.S., will they have legal grounds to transfer their cases to an international court?
Nobody knows for sure. One thing we do know is that by ignoring long-standing precedence, the advice of many legal experts and the inherent security threats posed by bringing the Gitmo Five to Manhattan, the Obama administration is setting Americans up for a fall.