A Shocking Retreat in the Khalid Mohammed Case

As the 25th anniversary of September 11 nears, the attempt to prosecute the accused ringleader of the attacks, Khalid Sheikh Mohammed, is sputtering in the courts. A military judge finds that Mr. Mohammed’s confessions cannot be used against him in court, removing a critical piece of evidence prosecutors had hoped to wield. It underscores the folly of applying rules for civilian criminal prosecutions in cases involving terrorist attacks on American soil.Mr. Mohammed was captured in 2003 and has been detained at Guantánamo Bay since 2006. Yet legal pettifogging has delayed the adjudication of his case, and his trial isn’t even scheduled to start until 2028. This delay is partly the result of the Supreme Court decision’s in 2008 to grant sweeping due process protections to foreign military combatants. The holdup hardly bespeaks a sense of American resolve to defend the nation from terrorist threats.The latest dilatory development derives from the trial judge in Mr. Mohammed’s case, Lieutenant Colonel Michael Schrama, reports the Times. Colonel Schrama finds that evidence derived from interrogations conducted at Guantánamo after 2007 cannot be admitted at trial. Prosecutors, per the Times, were already excluding evidence obtained during CIA interrogations prior to Mr. Mohammed’s arrival at Guantánamo. “The prosecution has failed to prove by a preponderance of the evidence that Mr. Mohammad’s statements to the F.B.I. were voluntarily given,” Colonel Schrama declares in his ruling, obtained by the Times. The judge points to what he calls an “unbroken continuation of the C.I.A.’s psychological conditioning and severe coercion” while Mr. Mohammed was being questioned by authorities at Guantánamo.Colonel Schrama’s ruling, which could be appealed, underscores the discrepancy at the heart of the 9/11 prosecutions. These are not normal federal criminal cases like, say, money laundering. The 9/11 prosecutions involve a terrorist assault that amounted to a de facto military attack against America. So the niceties of due process — like compelling evidence to be brought to court — are impractical in cases centered on foreign terrorists like those of 9/11.As these columns have pointed out, America during World War II had a clearer-eyed sense of how to handle enemy combatants. In June 1942 Nazi saboteurs traveled by U-boats to our shores. The men were captured before doing any harm. Yet their cases were handled under a military commission formed by FDR, and within weeks most of the saboteurs were executed. The Supreme Court in 1942 upheld this approach in Ex Parte Quirin.The Nine found then that a “military commission” was “an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by courts-martial.” In 1950, the high court in Johnson v. Eisentrager confirmed that an enemy combatant has no “access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy.”Yet the wisdom of these precedents failed to be applied in the aftermath of 9/11. President George W. Bush formed military commissions to handle the prosecutions. Yet in Boumediene v. Bush, the high court, by five to four, found in 2008 that the commissions failed to give defendants enough due process protections. “The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony Kennedy wrote.Yet Justice Antonin Scalia’s dissent stressed “the disastrous consequences of what the Court has done” in Boumediene. He lamented that it “sets our military commanders the impossible task of proving to a civilian court,” under standards crafted by the Nine, “that evidence supports the confinement of each and every enemy prisoner.” That is misguided, Scalia said, as the Mohammed case reminds, because “America is at war with radical Islamists.”

A Shocking Retreat in the Khalid Mohammed Case

A Shocking Retreat in the Khalid Mohammed Case

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