A Further Perspective

What Has Changed?

We Tried Moussaoui and the 1993 bombers in Federal Court. What was different about them?

By 11.20.09

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A lot has changed.

Andrew C. McCarthy, the former assistant U.S. attorney who led the prosecution of the 1993 bombers of World Trade Center, has widely criticized the idea of using American courts for the trial of foreign soldiers. He has the unique perspective of having fought through the process as he tried those accused of planning the 1993 attack on the World Trade Center. Both the trials of the 1993 bombers and that of Zacarias Moussaoui (co-conspirator to the 9/11 attacks) involved individuals who were conspiring, living, or working in the United States. In McCarthy's own words:

Moussaoui was arrested in Minnesota at a time when the military commission system did not yet exist. Unlike KSM & Co.[co-conspirators of the 9/11 attacks], he wasn't captured in wartime outside the United States and detained outside the United States at a time when a military commission system had been implemented.

So, there is a tremendous difference between the Moussaoui case or the 1993 bombers, and the regrettable decision by Attorney General Holder (aka President Obama's choice to lead the Department of Justice). Moussaoui was apprehended in the United States. Moussaoui conspired in the United States. The 1993 bombers conspired in the United States. Many of the 1993 bombers were apprehended in the United States, and even worked in the United States -- one a cab driver, another a preacher at several New York City mosques.

Indeed, the 1993 attack was more of an American-grown one than the 9/11 attacks. Moreover, few knew the extent of the jihad against the United States in 1993. Few could have imagined what was in store just six years after the 1995 trial of the Trade Center bombers. We were not involved in an active war in Afghanistan and Iraq, supplying hundreds of thousands of troops to push the blood back, away from our shores. Since September of 2001, however, we have been awakened to the harsh reality of war in our time, on our soil.

Unlike the 1993 attack and unlike the apprehension of 9/11 co-conspirator Moussaoui, those accused of planning the 9/11 terrorist attacks were all apprehended outside of the United States. They were imprisoned outside of the United States. Most were apprehended well after the United States had launched the wars in Afghanistan and Iraq. These enemy combatants who were caught overseas have no need of being brought to America as if they were NYC cab drivers, tourists, or preachers in a lower Manhattan mosque. They were not.

Attorney General Holder states that we are using all of our options in the prosecution of these terrorists:

We are at war, and we will use every instrument of national power -- civilian, military, law enforcement, intelligence, diplomatic and others -- to win.…

"Every instrument" should also include the military tribunals. Military tribunals are military actions. They are for wartime activities. To date, over 5,000 soldiers have lost their lives fighting this war. This is not a police action nor is it a limited engagement. This is, as Mr. Holder stated, a call for "every instrument of national power." But Mr. Holder fails to grasp the significance of his own words. He fails to recognize that we have other options and other instruments. Why won't we use them?

Why must we have these co-conspirators tried on United States soil? I can understand why we could. I can understand why we might. But clearer than why we might or why we could is the obvious fact that we mustn't. Public opinion agrees with this reasoning. Public opinion agrees with former U.S. prosecutor Andrew McCarthy. Public opinion agrees with using "every instrument of national power" -- including a military instrument designed specifically for this purpose.

According to CNN, two-thirds of Americans want the trial away from their sacred homeland. Why go against logic, the leading prosecutor of the 1993 bombers, the people, and the President's own words, as recently as August of this year.

"Military commissions have a long tradition in the United States," Obama said in a statement. "They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered" (emphasis mine).

There are myriad reasons why the legal process could be exploited with a domestic trial and why a domestic/civilian trial of the 9/11 conspirators could turn our justice system on its head and dance it around in a three-ring circus. Those reasons are being effectively articulated elsewhere. They are almost too numerous to enumerate. Those reasons shouldn't warrant discussion because we never should have gotten to this point. We are at war against soldiers in a jihad; they declared it on us. We aren't considering the trial of a cab driver, taxpayers, or immigrant workers. We are considering the trial of foreign soldiers -- enemies in a larger war against the United States.

That is what has changed. We are at war and they are enemy soldiers, apprehended in the fight, in foreign lands. They are not American citizens, nor were they ever.

For a pre-9/11 mindset, not much has changed; little has been learned. To those who grasp the consequences of 9/11 on 9/12 and beyond, this country has once again been hallowed, both by the lives taken on September 11, and the warriors whose continual sacrifice adds meaning to the lessons of ignoring a gathering storm. With hallowing comes learning -- to those who will learn.

The 9/11 conspirators were not criminals, they were soldiers. Their fate should not be governed by the principles of a system that they specifically reject, especially when we have other "instruments" of national power at our disposal. What is the wrong with using them?

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About the Author

Robert P. Kirchhoefer is a Washington, D.C. attorney who previously worked in banking and finance.