There is much speculation on whether President Obama will overrule his attorney general and change the venue and the type of trial the terrorists will be given. NewsReal Blog interviewed those with first-hand knowledge for their opinion on what type of trial the terrorists should have and where it should be held. Weighing in with their opinions: Congressman Tom Rooney (R-FLA), a former JAG officer,Kyndra Rotunda, a Professor at Chapman School of Law in Orange, California and author of Honor Bound: Inside the Guantanamo Trials, and Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others for the 1993 World Trade Center bombing and is now a contributing editor for National Review Online.
NRB: What would you say to those that argue all previous terrorist acts were considered a crime?
Kyndra Rotunda: Previously, we never considered their actions as an act of war. After 9/11 we responded militarily: congress authorized funds, we sent troops in and we treated it as an attack on our country. 9/11 was not a crime. We did not see it that way then and we don’t see it that way now or we would currently not have troops on the ground.
NRB: Are there problems if a terrorist chose to represent himself?
McCarthy: The 20th hijacker’s, Zacharias Moussaoui, trial is a cautionary tale on how we dodged a bullet. Moussaoui defended himself to try to gain access to the raw intelligence and the ability to question al Qaeda members. In a civilian court Khalid Sheikh Mohammed (KSM) could say I want to represent myself, show me all the intelligence files, show me all the discovery files so I can read them for myself. We would be in the position of telling him no, thereby violating his right to counsel or telling him yes and giving him important, classified information. Do we violate his 6th amendment right to counsel, do we violate his 5th amendment right of discovery, or do we give him the crown jewels? This is not a dilemma we have with a military commission. He can still represent himself but the classified information will be protected for reasons stated earlier.
NRB: A former CIA operative argued against Federal Trials by pointing out, “The FBI’s position is to take pictures of everything — nobody touches anything. The CIA’s position is to take everything in this place. You take his (the terrorist’s overseas) cell phone, take his computer and not worry about the chain of evidence.” Do you agree or disagree?
Rooney: Agree. A lot of evidence that has been gathered about the terrorists has been done by clandestine forces. They were not read their Miranda rights. You are going to get crafty defensive attorneys that are going to make motions on any evidence that will find them guilty. There are huge problems with evidence gathering, chains of custody, facing your accuser.
McCarthy: A CIA operative has to exploit the information while the FBI not only exploits the information but must prove where they got it and preserve it in the condition in which they found it. When America goes to war our national obligation is victory. There is no American tradition of representing America’s enemy during wartime.
NRB: Given a military tribunal where should it be held?
Rooney: We have a state of the art court room in Guantanamo Bay. We have the resources there. There is no reason to incur additional costs for security. The only reason we are not doing that is the perception around the world. Perception and reality are different. It takes leadership from the President to show people why they might be wrong.
NRB: Recently there is the controversy over the Department of Justice hiring lawyers who defended the terrorists, what is your opinion?
Rotunda: I think it is a problem and could create a conflict of interest. Lawyers for detainees advocated for their clients and also for policy changes that would benefit their clients. Now, they are decision makers on those same issues.
McCarthy: I don’t admire those lawyers who help the enemy during wartime. There is going to be a lot of information that is going to come out that these guys were doing many things to help the enemy that I don’t regard as legal representation, such as passing intelligence to the enemy. I am not labeling them all that way, but to say that is any kind of honorable legal representation I think is farcical.
Rooney: There are a lot of lawyers in the DOJ that have a predisposed bias. When you have people that have worked on behalf of one side and now are operating on behalf of the government, it does not look like the scales are evenly balanced or that lady justice is blind.