Sep 12 2010

Time to Bring Terrorists to Trial

by U.S. Senator Lindsey Graham

Those responsible for planning and executing the attacks on 9/11 present a danger to our nation, and it is inexcusable that they have not been brought to trial.  I understand the wheels of justice move slowly, but when it comes to trying those responsible for 9/11 the wheels of justice have ground to a halt. 

On November 13, 2009, Attorney General Holder announced that the mastermind of 9/11, Khalid Sheikh Mohammed (KSM), and his co-conspirators, who have been held for years in military detention at Guantanamo Bay, would be tried in civilian court in New York City. 

That announcement was met with overwhelming opposition from the American people.  Civilian trials in New York City would create unnecessary legal problems, be incredibly expensive, and put civilian populations at risk.  Most importantly, civilian trials would rewrite history-- making 9/11 a criminal act, not an act of war. 

KSM and his co-conspirators are unlawful enemy combatants who stand accused of committing grave war crimes against the people of the United States.  They should be held accountable within the military commission system that I helped author and which received overwhelming bipartisan support in Congress.  Military commissions have been used in wars throughout our history, and they should be used in this war.  The commission trials will be transparent, conducted by the same judges and jurors who administer justice to our own troops, and subject to civilian review. 

Unfortunately, years after KSM and his 9/11 co-conspirators were captured, the Obama Administration has all but stopped military commission trials at Guantanamo Bay. 

I thought that after the backlash the Obama Administration received over giving KSM and his co-conspirators the same constitutional rights as American citizens they would move forward with military commissions.  Needless to say, it came as a surprise to me and others when Attorney General Holder stated that “New York is not off the table” and a decision was expected “in a number of weeks.” 

That was five months ago, and the Department of Justice is no closer today to announcing where or when the trials will be held.  I fear there is only one reason for the delay and that is politics. 

I believe that civilian trials have a place in the War on Terror and in some specific instances may be preferable to military commissions.  However, when it comes to those members of the enemy force who planned the vicious September 11 attack, the use of civilian trials undermines the war effort. 

Simply put, if Khalid Sheikh Mohammed is not worthy of trial by military commission, who would be? 

Until a couple of weeks ago, the Obama Administration would have replied Abd al-Rahim al-Nashiri, the alleged coordinator of the attack on the USS Cole which left 17 American sailors dead and 39 wounded. 

In November 2009, Attorney General Holder said that al-Nashiri’s case is “uniquely situated for a military commission as opposed to an Article III (civilian) court.”  But the Administration’s indecision on holding terrorists accountable for their war crimes has reached a new level with an announcement that the planned military commission trial of al-Nashiri has now been indefinitely shelved. 

According to some reports, prosecutors are ready to try al-Nashiri by military commission, but the Administration does not want to proceed without corresponding civilian trials for other detainees. 

Others speculate that the Administration believes that holding military commission trials at Guantanamo will undermine the President’s promise to close the detention facility.  However, efforts to hold enemy combatants accountable for their war crimes are not blocking the closure of Guantanamo.  The obstacle is the lack of a plan to safely close the facility. 

The Obama Administration is unwilling to make the tough choices necessary – and face the wrath of the ACLU and other liberal groups – to plausibly claim that they have a plan to close Guantanamo that safeguards national security. 

Regardless of the reason, the limited progress toward military commission trials is being reversed.  It is heartbreaking to read quotes like that of Gloria Clodfelter, whose son was killed on the USS Cole, saying, “it seems like nobody really cares.” 

Nine years after 9/11 our nation has failed to create a national security-centric legal system.  The Obama Administration should work with Congress to address the chilling impact the practice of reading suspected terrorists their Miranda rights has on intelligence gathering.  The Administration should seek congressional approval for law of war detention under which enemy combatants may be detained long-term with judicial review but without trial. 

Nine long years after the terrible September 11 attacks on our country, justice has been stopped.  That is too long for those who lived through the attacks, those who remember the horror of that day, those whose loved ones died in New York, Washington, D.C., Pennsylvania, and aboard the USS Cole. 

Nine years after September 11, and the Administration remains frozen by indecision and politics when it comes to trying those responsible for attacking our nation here at home and overseas. 

Americans still wait for justice.  Now is the time for action. 

(This oped began running in South Carolina newspapers on Sunday, September 12.)