Stratfor Weighs in on Khalid Sheikh Mohammed Trial

Controversy continues to swirl over the Obama administration's decision to try 9/11 mastermind Khalid Sheikh Mohammed in a civilian court rather than before a military tribunal.

Private security and intelligence service Stratfor has an interesting, nonpartisan take on the dilemma in its November 16 edition. While we all understand that KSM fits neither in the category of a military combatant nor that of your garden variety  criminal, George Friedman helps analyze the riddle in Deciphering the Mohammed Trial. 

To do so, he compares KSM, not to the German sub spies of World War II, as most analysts have, but to the franc-tireurs of the Franco-Prussian War of 1870. The franc-tireurs were, literally, "French snipers"--irregulars without uniforms who picked off Prussian soldiers and then melted back into the French civilian population. This resulted in civilian casualties blamed on the franc-tireurs. To be covered by the Geneva Conventions, a partisan must at least bear an insignia of his cause which neither the franc-tireurs nor KSM did.

This ambiguity captures KSM, says Friedman. He is not an enemy combatant because he fought under the banner of no country. Neither is he a criminal. Criminal punishment is handed out after the fact. But the purpose of trying and attempting to punish KSM is more preventive-to keep him from planning more terror attacks.

Friedman, however, does make two chilling observations about the Obama decision. The first involves the CIA, which has been under attack from the administration and Congress since last January. If the U.S. can claim that KSM is a common criminal because he planned the 9/11 covert attack, what is to stop some foreign government from indicting and attempting to bring to trial the Director of Central Intelligence for some covert action carried out in a foreign country.?

All nations engage in spycraft. If a spy is captured, he is not covered by the Geneva Conventions but by whatever passes for rule of law in that country. But should CIA director and Obama pal Leon Panetta be indicted by, say, Iran, would Pres. Obama, who has declared himself an international citizen, feel himself compelled to turn Director Panetta over to the mullahs? 

The second  unintended consequence of the president's decision is the specter that the federal court sets KSM free. For starters, is there any way this man can get a fair trial blocks from the site of ground zero? Are there any potential jurors who don't know anyone affected by 9/11? This is pre-trial publicity on steroids. Forget a change of venue. 

The reality is that KSM may indeed be found not guilty, despite what looks to the untrained eye as overwhelming evidence. Friedman says, "(Attorney General Eric) Holder has opened up an extraordinarily complex can of worms with this decision. As U.S. attorney general, he has committed himself to proving Mohammed’s guilt beyond a reasonable doubt while guaranteeing that his constitutional rights (for a non-U.S. citizen captured and held outside the United States under extraordinary circumstances by individuals not trained as law enforcement personnel, no less) are protected. It is Holder’s duty to ensure Mohammed’s prosecution, conviction and fair treatment under the law. It is hard to see how he can."

There is no good way out of this for the United States. George Bush understood this. That's why he let KSM cool his heels by the seashore for the last three years. But this is one more example of President Obama making a decision based on abstract theory and politics, and not on the consequences of his decision or the reality of the dangerous world we live in.

Just thought you might like to know.