June 13, 2011 | National Review Online

The 9/11 Six: An Opportunity for Senator McCain

Whether capital military commissions really happen will be decided in November.

We’re getting way ahead of ourselves.

On Sunday, the Pentagon announced that military prosecutors have decided to seek the death penalty against six al-Qaeda operatives who were complicit in the 9/11 attacks. Whether those enemy combatants will actually be executed, however, is a question better answered by three decisions made in the United States Senate on September 28, 2006.

That was the day the chamber voted in favor of the Military Commissions Act. In pertinent part, the scorecard reads as follows:

        John McCain (R., Ariz.) — Aye
        Barack Obama (D., Ill.) — Nay
        Hillary Clinton (D., N.Y.) — Nay

In sum, whether Khalid Sheikh Mohammed and his five fellow savages are subjected to a military-commission trial at all, let alone put to death, will be determined by the outcome of the election in November, not the analysis of JAG lawyers.

It is worth pausing to recognize just how preliminary Sunday’s announcement was. Whether a case is in the civilian or military legal system, the first thing that has to happen before charges get filed is the assigned prosecutor has to figure out what charges his proof can support. So far, this is all that has happened: the government lawyers have concluded their evidence is sufficient to prove that the six combatants conspired to murder, committed nearly 3,000 murders in violation of the laws of war, engaged in terrorism, and materially supported terrorism.

No one should be surprised by that, or by the fact that capital punishment is on the table. In November 2001, President Bush issued his first executive order authorizing military commissions. Section 4(a) of that order declared that any person subject to trial by military commission “may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.”

Of course, we have not yet had a single commission trial despite the passage of six years’ time. In the interim, not only have the contemplated procedures been a work in progress but the legal basis for holding commissions has dramatically altered — which is why the three plausible contenders for the presidency found themselves casting those votes in 2006. Commissions are now authorized by statute, the aforementioned Military Commissions Act, not executive order. Nevertheless, two core facts have never changed.

First, capital charges have always been a possibility — indeed, likelihood — for terrorism offenses, just as they are in the civilian system. Second, even if a combatant is originally placed in the military system, the commander-in-chief has the power to transfer him to the civilian system — just as President Bush did with Jose Padilla, who was recently convicted of terrorism charges by a civilian court after being detained for three years as an enemy combatant.

While the anti-commission forces, complemented by the anti-death-penalty lobby, are already cranking it up to DEFCON 4, we are in fact a long, long way from a capital-commission trial.

If I may draw a civilian-system analogy, let’s say I was an assistant U.S. attorney assigned to a murder case for which federal law authorizes the death penalty. What the Pentagon told us Sunday is the rough equivalent saying that I, or at most my district U.S. attorney’s office, had determined the case was strong enough to ask for the death penalty. We would still have to seek authorization from the Justice Department. The military prosecutors, similarly, must still get clearance from the Department of Defense.

Let’s assume that happens quickly. Formal charges still have to be filed. Then the six combatants will have counsel assigned — military counsel plus, if they choose and can arrange it, civilian lawyers. (By the way, you can bet the ranch that they will choose to retain civilian counsel, and that a phalanx of defense lawyers will be tripping over themselves to represent our most atrocious enemies.) At that point, all bets are off: Every issue under the sun will be litigated.

Bear in mind, moreover, that the Supreme Court is currently considering the questions whether alien enemy combatants have U.S. constitutional rights and whether lethal injection violates the Eighth Amendment’s proscription against cruel and unusual punishment. If the Court rules against the government in those cases, it could undermine both the military-commission enterprise and the availability of capital punishment in American legal proceedings. (The military does not have a settled execution practice at this point, but lethal injection is used in the civilian system because it is the most humane method; if it is invalidated, it is difficult to imagine any method the justices would not find offensive to their conception of Constitution.)

World War II, when, in a mere seven weeks, German saboteurs were captured, tried as enemy combatants under FDR’s order, and executed, is a distant memory. Essentially, we’re now looking at months and months, if not years, of litigation. And that’s without factoring in the layers of appeal that would occur after any trial, first in the military system, then in the U.S. Court of Appeals for the D.C. Circuit, and finally in the Supreme Court.

No one can say how long that will take. One thing is sure, however: it will take us beyond January 20, 2009, the day Chief Justice John Roberts will swear in the 44th president of the United States.

So, the 9/11 Six present an opportunity for Sen. McCain.

When the Senate voted in 2006, it was being asked to decide what enforcement paradigm would best protect the American people. Should we return to the 1990s mentality of regarding our enemies as mere criminal defendants, swaddled in the same rights as American citizens accused of crimes? Should we, under the rubric of civilian due process rules, provide our enemies with a banquet of intelligence even as their confederates continue plotting new attacks?

Or should we impose a system in which the enemy is given fewer privileges and life-saving intelligence can be shielded from disclosure?

For all his reservations about interrogation methods, Senator McCain voted to treat the enemy as the enemy.

By contrast, Senators Obama and Clinton voted to treat the enemy like we treat an accused tax cheat.

So will Khalid Sheikh Mohammed face capital punishment after a military-commission trial? It probably depends on whether January 20th signals a return to September 10th.

– Andrew C. McCarthy, an NRO contributing editor, directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.)

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