The Associated Press offered a superficial glance at a complex and alarming update in the upcoming trial of the five 9/11 defendants,Â leaving me to wonder where is their thoughtful, penetrating examination of this judicial travesty about to take place in New York City. There is certainly no shortage of critical questions in want of answers.
The AP reported Sunday that the five 9/11 defendants to be tried in New York City will not deny their role in the terrorist attacks of Sept. 11, 2001, but will nonetheless be pleading â€œnot guilty.â€ This, to me, initially seemed a sure sign that the defense attorney feels compelled to observe no ethical responsibilities to the American judicial system as his clients attempt to put U.S. foreign policy on trial.
The attorney assigned to defend the five terrorists on trial, Scott Fenstermaker, reported Sunday that all five of his clients are also planning to use the â€œstageâ€ they are given to deliver their radical Jihadist message and explain why they believe more Americans must die. The Obama Administration canâ€™t say they werenâ€™t warned â€“ again, and again, and again.
There is the possibility that Fenstermaker has chosen the path of least resistance in representing his clients, for the sake of self-preservation. Â There can be no doubt this case will have a significant impact on his career â€“ for better or worse. But what we may perceive during this trial as over-zealous representation may be the actions of a defense attorney caught between the rock of the American justice system and the hard place of representing hardened terrorists who would stop at nothing to continue their mission against America.
Either way, Attorney General Eric Holder and the Obama Administration, which pulls his strings, opted to take great risks with a trial in our civilian judicial system, and for no clear, justifiable reason.Â Even if the trial concludes without incident, the results would not justify the risk. If it does not go without incident, the results could be catastrophic.
Holderâ€™s defense to the outrage following the announcement of the trial in NYC was weak, aloof and dismissive of the true weight of his choice.
“I have every confidence that the nation and the world will see him for the coward that he is,” Holder said. “I’m not scared of what Khalid Sheikh Mohammed has to say at trial, and no one else needs to be, either.”
The blatant arrogance and ignorance exhibited by the Obama Administration and Holder is of far less concern than the wider implications to our judicial system. Merely saying that these five terrorists will have the same rights as any other American defendant in our court system doesnâ€™t begin to convey the realities of the situation in which our justice system has been placed.
John Yoo, a columnist with the Philadelphia Inquirer and law professor at the University of California, Berkeley, made up for the APâ€™s lack of insight on the trial when he wrote extensively on the disaster about to unfold:
â€œâ€¦the positive benefits [of a civilian trial] remain obscure to the point of vanishing. All that is known for certain are the heavy costs:
Giving Mohammed and his fellow terrorists the same constitutional rights as any U.S. citizen accused of a crime risks our nation’s most vital intelligence secrets. Mohammed can demand that the government turn over all of its information on him and tell him how it was acquired or it risks a mistrial or acquittal. Soviet moles like Aldrich Ames and Robert Hanssen used the same tactic to bargain the government down from the death penalty. Ordinarily, such information does not harm the public because the crime has already been committed. But the release of intelligence during hostilities can be disastrous when it informs the enemy of our knowledge, capabilities, and intentions.â€
He went on to say:
â€œThis red herring [Holderâ€™s statement] distracts from the administration’s failure to explain why the benefits of using civilian courts outweigh the costs to the war effort. It certainly doesn’t help those who are already protected by the Bill of Rights and can be tried in civilian courts. If anything, their rights are at risk, not just by a failure to convict terrorists who killed almost 3,000 people, but by the inevitable judicial compromises that must balance the requirements of a fair public trial with the demands of protecting wartime secrets. Those compromises will no longer be limited to the special context of military courts in wartime, but will become part of the law that governs all Americans.â€
Until the trial concludes, Americans will be forced to hold their breath and hope the Obama/Holder decision doesnâ€™t cost us all a great deal in life and/or liberties.