Lawyers as the useful idiots of the enemy

Wall Street Journal Editorial:

The war on terror is easily the most litigated war in history, and on the evidence so far the lawyers are winning. They may yet succeed in killing military commissions, despite their long U.S. history and a law duly passed by Congress and signed by the President.

The latest legal battle concerns the Pentagon's attempt to try the perpetrators of 9/11. You'd think this would be easy compared, say, to trying the eight Nazis who secretly landed on Long Island and Florida in June 1942. Those Nazis didn't kill any Americans. Yet they were captured within days and convicted by military commissions established by FDR; most were sentenced to hang within two months. The Supreme Court validated the action in Quirin. But today, nearly seven years after 9/11, the U.S. still hasn't tried the conspirators who planned the deaths of 3,000 Americans.

Khalid Sheikh Mohammed and five others have been referred for trial at Guantanamo Bay under the 2006 Military Commissions Act. Yet a guerrilla campaign by military attorneys and human-rights lawyers is throwing up obstacles at every turn. The latest is an attempt to discredit Brigadier General Thomas Hartmann, the legal adviser to the commissions who has been given the thankless task of getting the trials underway.

General Hartmann was disqualified this month from advising in the case of one terror defendant on the preposterous grounds that he had exerted "undue influence." How so? It seems he had told military prosecutors that they should get better training, and that the cases to try first should be the "sexy" ones that might "capture the imagination of the American people." Such as those involving the deaths of 3,000 Americans.

In his bizarre decision, Military Judge Keith Allred conceded this wouldn't disqualify the legal adviser in a normal military court-martial. But it was enough in this case because Congress wanted the military commissions to avoid even the "appearance of unlawful command influence." Congress didn't define such unlawful influence, however, so Judge Allred defined it himself. And his elastic definition included the fact that the antiwar Harper's magazine had published a screed against military commissions and General Hartmann. Seriously.

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The larger game here, among many lawyers and most of the press, is to give the impression that military commissions are unworkable. The critics want to delay the trials long enough to push them into the next Administration, which they hope will then abandon commissions. Their ultimate goal is to get terrorists tried like any other defendant in civilian courts or regular courts-martial – fully aware of how daunting the chance of convictions would be.

The critics are especially worried that KSM and friends might go on trial before the November election, because their testimony is likely to celebrate their murders and remind the world how much they want to kill Americans. They deserve to be tried as "enemy combatants" under military tribunals precisely because they have violated the rules of war. The case against them also involves classified intelligence that can't be heard in open court.

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This lawfare mess was probably inevitable. These proceedings should be considered war crimes trials against the accused and not traditional criminal cases. Most of the al Qaeda terrorist at Gitmo should just stay for the duration of the war without a trial. They are not entitled to one under the laws of war. for those we decide to try for their war crimes, there may be additional punishment that will go past the end of the war and in some cases the death penalty will be appropriate. That is another element that exercises the useful idiots of the legal profession.

What seems apparent is that some of these useful idiots are on the government's payroll.