News & Comment: Obama Hasn't Ruled Out NY 9/11 Trial

President "I'm-still-obviously-inexperienced-at-this-but-always-have-an-uninformed-no-common-sense-opinion" Obama said recently he has not ruled out a New York federal court trial for Sept. 11 planner Khalid Sheikh Mohammed. He hastened to add (which may show some signs of using his head) he was taking into account the objections of the city's mayor and police commissioner.

There are a number of things wrong with the whole scenario regarding this trial: A) Location, B) Jurisdiction, C) Legal Precedence.

The Obama administration has come under withering attack, mainly from Republicans, for a decision by his Justice Department to try the terrorist mastermind in a U.S. court near Ground Zero, site of the attack that destroyed New York's World Trade Center.

Obama said using the traditional judicial method was a "virtue of our system" in which Americans should take pride.

He also defended his decision, noting again that the administration of former President George W. Bush had handled terror suspects arrested in the United States in the same way, despite the fact that his whole campaign, election and support came from the fact that it was both based on change and the nations total alienation from eight years of Bush. Besides, Obama is incorrect with that statement in the most severe way in that President Bush regarded terrorists as enemy combatants - which means they are not read their rights, nor are they judged by a civilian court, rather by a Constitutional court - similar to a military tribunal.

"They prosecuted 190 folks in these Article III courts..." Obama said. Folks? Obama still refuses to use the "T-word" - they are terrorists, not folks. Folks are like the relatives back home or in its most extreme case, people sitting on a front porch swing snapping beans in a bucket.

Central to the challenge of trying terrorist suspects in the Article III courts are the issues associated with the use of classified and sensitive information. Congress enacted the Classified Information Procedures Act (CIPA) in 1980 to respond to the problem of “greymail,” a defense tactic that often forced the government either to disclose classified evidence or to dismiss its case altogether. In modern cases, CIPA is used to protect classified information in criminal trials generally by permitting the trial court to make pretrial judgments ex parte. Where the classified information is relevant to a criminal prosecution, the judge can permit the government to disclose summaries of or substitutions for the evidence in lieu of the actual evidence. Some of the most complex decisions substitution would be inadequate. In such situations, trial courts might preclude certain evidence from being introduced or simply dismiss certain counts of an indictment. At worst, the government may be forced to decide between either disclosing the evidence to the defense or simply withdrawing its case altogether to prevent disclosure. Thus, even where CIPA applies, the government may still face a “greymail”-like situation in some cases if the classified information is highly relevant to the defense and a summary or substitution would prove inadequate.

While CIPA has been instrumental in limiting “greymail” in criminal trials, it is inapplicable by its terms to other relevant proceedings, such as habeas challenges and civil cases, and does nothing to safeguard sensitive but unclassified information. While these limitations do not hinder criminal trials generally, they create some challenges for handling terrorism cases in the Article III courts. issues. For example, the courts have exercised their inherent trial management authority to craft CIPA-type rules to safeguard classified evidence in habeas proceedings. However, questions remain regarding whether it is desirable or appropriate for the courts to craft these rules on their own.

We don't always side with many Democrats, but Sen. Chuck Schumer, D-N.Y., recently made a good point: "Based on the security, logistical and cost concerns raised by the mayor and the police commissioner, it is not feasible to have the trials in New York. The administration should realize that and move on."

The confusion in the aftermath with what happened on 9/11 is that it occurred in several states and jurisdictions: the carrying weapons aboard the plane - Boston; hijacking a commercial aircraft and eventually crashing them and murdering innocent people in New York, Pennsylvania, and D.C. In normal circumstances, this should be tried in a Federal court or at least in the highest court of these states. But our thinking in this crime is more along the lines that when the planes hit the Twin Towers, when the plane hit the Pentagon, when the plane hit the field in rural Pennsylvania, these were actions that became a declaration of war. It makes no difference that they represented no country or wore any uniform. Any and all associates have been and should be treated as prisoners of war under the Geneva Convention, not the U.S. Constitution or Bill of Rights. Likewise, the material evidence to be used to gain a conviction and the methods used to gather that evidence, is a secret - in what many call - a component of national security. Regardless, to us, this was a premeditated attack no different from Pearl Harbor, or even more recent, the U.S.S. Cole. Whatever it takes to get to the truth of who or what was involved without national security taking a hit, as well.

It almost seems like in this age of being politically correct, there are those elements that are almost trying to help the terrorists succeed. Our laws, should first and foremost protect the citizens of the United States, not give terrorists the leg up by treating them as Constitutional or political equals.