The Obama Report

President Obama told CNN last week that it was Attorney General Eric Holder who decided to try Khalid Sheikh Mohammed in a civilian federal court.

"You know, I said to the attorney general, 'make a decision based on the law,' " the president told CNN.

Similarly, Eric Holder recently confirmed to the Senate Judiciary Committee that Obama had left the decision up to him: "This was a tough call, and reasonable people can disagree with my conclusion." He reiterated, "I made this decision."

However, as former Attorney General John Ashcroft recently noted, Eric Holder does not have the authority to make such decisions:

"The attorney general doesn't have the authority to mandate that the secretary of defense turn somebody over to him and yield jurisdiction so that something that would have been done in a military setting is done in a civilian setting." The only one who does have the authority, Ashcroft said, is the superior of both the AG and the defense secretary: President Obama himself.

Additionally, the Weekly Standard notes as follows:

When Obama came into office and signed the executive order setting a January 2010 deadline for closing Gitmo, detainee policy was placed under the purview of Obama's White House counsel Greg Craig. That is, detainee policy was to be set by the White House, not the Department of Justice.

Now Craig is gone and all of a sudden the American people are to understand that these decisions need to be made independently of the White House, by an attorney general who isn't even asked to bounce his new policies off the president before announcing them to the public!

MSNBC's Chris Matthews recently criticized the Obama administration's decision to try KSM in a civilian court, saying the President was getting "a little too intellectual." and that he was not connecting "to real people and their emotional gut feelings about things."

"When politicians begin to get a little too intellectual, they lose connection with the American people," Matthews said.

However, Matthews is grossly mistaken, because even on an intellectual level, the Obama administration's decision does not hold water.

David Beamer, whose son, Todd Beamer, died on United Airlines Flight 93, attended the Senate Judiciary Committee hearing in which Eric Holder explained the rationale behind his decision:

In his opening remarks, Attorney General Holder acknowledged that these defendants could have been brought to trial in civilian court or before military tribunals. But he made the argument that trying them in our criminal courts would restore the integrity of our judicial system. He assured us that..., that classified information would not be revealed, that the evidence was overwhelming, and that justice would be served.

Then he said that the USS Cole attackers would be tried in military courts since they attacked our military. So how does Mr. Holder categorize the Pentagon [attack]? Inexplicably, he offered up the body count of 9/11, the fact that civilian deaths outnumbered military ones, as a rationale for his decision.

However, one of the detainees, whom, Eric Holder has decided to prosecute before a military tribunal, has been accused of participating in a plot to blow up oil tankers in the Straits of Hormuz. Oil tankers are not military targets, consequently, according to Eric Holder's twisted line of reasoning, the perpetrators of this attack should not be tried before a military tribunal.

But, in truth, even the terrorists accused of orchestrating the October 2000 attack on the USS Cole are, in essence, civilian terrorists, and not military personnel who were engaged in military warfare. They are no different than ordinary civilians who attack soldiers at a military installation [Unlike, Nidal Hussein, who was a member of the US military when he committed his crime].

The fact that the USS Cole attack was perpetrated against a military installation does not make it a war crime, unless the perpetrators themselves were military personnel. Consequently, the perpetrators of this attack should not be tried before a military tribunal - unless we assume - as we really should assume - that all terrorist acts, are in essence, acts of war.

Hence, Eric Holder's decision - even on an intellectual level - makes absolutely no sense at all.

Truth be told - as Jack kelly and others have noted - bringing KSM before a civilian court will ultimately jeopardize the war against terror:

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information and his relationships to fellow al-Qaeda operatives," wrote former Justice Department official John Yoo in the Wall Street Journal last week. "The information will enable al-Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering and to push forward into areas we know nothing about."

The concern isn't hypothetical. Andrew McCarthy, who prosecuted the blind sheikh, Abdel Rahman, after the 1993 World Trade Center bombing, was required to turn over to defendants a list of 200 possible co-conspirators which, he said, apparently was delivered to Osama bin Laden within days of its production as a court exhibit.

Mr. McCarthy declined to prosecute another suspect in that bombing for fear the intelligence loss through discovery outweighed the benefits of a conviction.

What's more, trying KSM in New York City, in front of the international media, will likely put New York City in the cross hairs of another major terrorist attack.

Adding to the dilemma is the announcement made on Sunday by attorneys representing 5 of the detainees that "the five men facing trial in the Sept. 11 attacks will plead not guilty so that they can air their criticisms of U.S. foreign policy."

The defendants will explain "their assessment of American foreign policy," said one of the lawyers. And,"their assessment is negative," he said.

I'll conclude this post, by quoting Jack Kelly's commentary on the matter:

The potential consequences for the United States of extending to these terrorists the constitutional rights afforded U.S. citizens in a civil trial are grave.

The legal status of the al-Qaeda bigwigs -- none of whom are U.S. citizens -- was that of unlawful combatant. In attacking the World Trade Center and the Pentagon, they committed an act of war, but did so in a manner which deprives them of prisoner-of-war status under the Geneva Convention of 1949.

To be recognized as lawful combatants, irregulars must meet four criteria, the Geneva Convention states. The criteria are "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; and (d) that of conducting their operations in accordance with the laws and customs of war."

The al-Qaida bigwigs fail to meet three of those four criteria, and thus, under international law, are entitled only to such "rights" as their captors are willing to extend to them. And now Mr. Obama and Mr. Holder have decided to give them the rights of American citizens.

The most consequential of those rights is that of discovery -- the right of American defendants to see the evidence the prosecution has against them. Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information...

Former Justice Department official Shannen Coffin thinks the real reason for a civilian trial is that President Obama hopes KSM and his lawyers will attack the Bush administration.

"The decision to try KSM in civilian court accomplishes indirectly what Obama does not wish to do directly -- it puts the Bush administration's interrogation tactics on trial for all the world to see," Mr. Coffin said.

This would be red meat for the liberal base. But it's unlikely to be popular with centrists who are already unhappy with Mr. Obama's economic policies.

This has been, arguably, the most political administration in modern times. Ten months after his inauguration, Mr. Obama still behaves more like a candidate than a president. But in pursuing his vendetta against his predecessor at the expense of American security, he may be campaigning to be a one-term president.

My apologies to Chris Matthews, but the decision to try KSM in New York City can only be construed as an intellectual decision, if, as Jack Kelly posits, the Obama administraton is pursuing a political vendetta against George W. Bush. But in truth, this decision will only harm the president in the 2012 presidential election. And thus - contrary to Chris Matthews' assertion - it is safe to assume that Barack Obama and his cronies are indeed lacking the very basic and rudimentary foundations of both intellectual and cognizant thinking.