- The Washington Times - Sunday, April 1, 2007

The questions around the world on how much to believe of Khalid Sheikh Mohammed’s recent confessions reminded me of the Supreme Court’s reaction (ex parte Milligan, 1866) to Abraham Lincoln’s suspension of habeas corpus while trying espionage suspect in military courts. With Guantanamo military procedures far removed from our civilian rule of law, former Sen. Bob Kerrey, a member of the 9/11 Commission, proposes that Mohammed and the other such detainees be moved to our civilian courts.

Citing the skepticism both here and abroad about Khalid Sheikh Mohammed’s CIA-censored “confessions” at his Gitmo hearings, Mr. Kerrey says (New York Daily News, March 18): “The families of the victims and the people of the United States deserve to know more about what is true and false about his ‘confession’ ” from which reporters were banned.

Moreover, Mohammed’s written submission about his alleged torture by the CIA in its secret prison was omitted from the official transcript of his confession. As Anne Applebaum, an expert on Stalin’s gulags, emphasizes (Washington Post, March 20): “The mystery surrounding [Mohammed’s interrogation over the years in that CIA secret prison] renders any confession he makes completely null, either in a court of law or in the court of international public opinion.”

Also, so deeply flawed are the procedures at Gitmo that the London Daily Telegraph, a pro-American newspaper, predicts that when Mohammed is convicted by the Gitmo tribunal, “the world will condemn the procedures by which the verdicts were reached.” Not all the world will be that critical, but many citizens of our allies will be. And among our enemies, Mohammed will get his wish by becoming a “martyr” of the Crusaders’ injustice.

Even the members of the September 11 commission, Mr. Kerrey points out, were denied access by the CIA to Mohammed and other high-level “detainees.” Mr. Kerrey, now the president of New York’s New School University, answers those who insist that putting such prisoners as Mohammed in our civilian federal courts would greatly endanger national security. He points to “the 10-year history of terrorist prosecutions in [our] federal and state courts [that] has established bringing those accused to justice.” “This has happened,” he continues, “without weakening the rule of law, making the accused international heroes or damaging the cases against other terrorists.” Among the 20 successful prosecutions of terrorists in our civilian courts, Mr. Kerrey notes that Mir Amal Kasi, killer of two CIA employees, was captured in Pakistan and, having been brought back here, was tried in Virginia courts and executed.

And tried in the U.S. District Court in New York City was Ramzi Yousef, a chief planner of the 1993 terrorist attack on the World Trade Center. After he was arrested and returned from Pakistan, Yousef and two terrorist associates were sentenced to 240 years and forbidden all contact with the outside world.

I asked Mr. Kerrey about the reaction to his proposal to return to our actual rule of law in these cases. “What struck me,” Mr. Kerrey said, “was how many usually knowledgeable people were surprised to learn about the successful prosecutions in our federal courts of these terrorists without danger to national security, as parts of the proceedings were classified. And by having the trials here, Americans learned so much about these convicted terrorists and how they operated.”

If Congress amends the Military Commissions Act, as Mr. Kerrey suggests, so that Mohammed “can defend himself and, quite likely, find himself convicted in a U.S. court,” the results will include, says Mr. Kerrey that: “Justice will be served, national security protected and secondary damage, either to other cases or to prospects for peace and stability around the world, will be avoided.”

Meanwhile, some House Democrats, among them, Rep. James Moran of Virginia, are trying to gather support to move Guantanamo captives to military brigs in this country. Defense Secretary Robert Gates agrees that persistent world criticism of Gitmo would then cease, and the prisoners would be held securely here. The president and Attorney General Alberto Gonzales have rejected Mr. Gates’ proposal.

But that approach doesn’t restore our rule of law when, under the Military Commissions Act, “unlawful enemy combatants” could be held in those brigs indefinitely while subject to “coercive” interrogation that could lead to suspect “confessions.” The Supreme Court was right in 1866: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances” including prisoners of Guantanamo Bay.

Whether the John Roberts Supreme Court agrees would affect as terrorism continues indefinitely how much confidence the free world will have in the United States as a key protector and fighter for the values that are wholly opposed by the terrorists.

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