woody_zimmerman_118_2007The Mainstream Media (a.k.a. Fringe Media) are going bonkers over the sensational news that five terrorists, including the notorious Khalid Sheikh Mohammed – reputed to be the principal architect of the 9-11 attacks – will be brought to New York City for trial in federal court. Instead of being tried by military commissions under the Articles of War, the defendants will be tried as federal defendants under domestic jurisprudential rules. Millions of New Yorkers, who endured the horror and pain of the attacks eight years ago, will be forced to endure the circus of a public trial and relive that dreadful day in which 3000 Americans either burned up in hijacked airliners or were crushed to death in collapsed buildings.

The decision – ostensibly made by U. S. Attorney General Eric Holder, but certainly directed by President Obama – is a peculiar one, since all of the accused had already confessed and asked for the death penalty. Only a brief hearing by a military commission was needed to accept those individual pleas and speed each of the accused toward their personal 72-virgin rewards. Yet President Obama has chosen to forego the direct resolution of these cases. (To be fair – President G. W. Bush declined quick action as well.)

It’s useful to contrast these cases with the Operation Pastorius case of 1942, in which eight German saboteurs were landed on the coasts of Amagansett, Long Island, and Jacksonville, Florida, from German U-boats. Their mission was sabotage of: hydroelectric facilities at Niagara Falls; ALCOA plants in Illinois, Tennessee, and New York; locks on the Ohio River near Louisville, Kentucky; the Horseshoe Curve railroad pass near Altoona, Pennsylvania; Pennsylvania Railroad repair facilities in Altoona; a cryolite [1] plant in Philadelphia; Hell Gate Bridge in NYC; and Pennsylvania Station in Newark, NJ.

The would-be saboteurs – two being American citizens, and the others Germans who had lived for periods of time in America – came equipped with a large quantity of explosives, plus $175,000 in American currency, of which they ultimately spent only $600. They were almost immediately discovered and arrested, having achieved none of their objectives, because one of them – John Dasch – turned himself in and helped the FBI break the German espionage ring in America. Dasch went to the FBI in Washington, DC, where agents thought he was a crackpot until he dumped his operation’s entire budget of $84,000 (in cash) on an agent’s desk. (Has anything really changed at the FBI?)

All eight were tried before a seven-member military commission on specific instructions from President Roosevelt. They were charged with: 1) violating the law of war; 2) violating Article 81 of the Articles of War, defining the offense of corresponding with or giving intelligence to the enemy; 3) violating Article 82 of the Articles of War, defining the offense of spying; and 4) conspiracy to commit the offenses alleged in the first three charges.

The saboteurs’ lawyers (Lauson Stone and Kenneth Royall) attempted to have the case tried in civilian courts, but the Supreme Court rebuffed this attempt in its Ex parte Quirin ruling [2]. The commission met in July 1942. The accused were all convicted and sentenced to death, but President Roosevelt commuted the sentence of Ernst Burger – an American citizen who had also surrendered to authorities – to life imprisonment. FDR also commuted Dasch’s sentence to thirty years imprisonment. The other six were executed in the electric chair on August 6, 1942, and buried in a potters field in the Blue Plains section of Anacostia, Washington, DC. In 1948, President Truman granted executive clemency to Burger and Dasch, on condition of their deportation to the American Zone of occupied Germany.

In recent days I have heard numerous commentators ask, “Why is he doing this” – by way of trying to understand why President Obama has decided to try the terrorist defendants in civilian federal courts, when clear precedent exists for trying them before military commissions. A military commission would be quick, efficient, and relatively private – no muss, no fuss – allowing us to move on with other matters.

A trial in federal court, on the other hand, will be conducted in a circus atmosphere, with slavering media coverage reaching the level of the Michael Jackson obsession of a few months ago. There will be no end of puff-pieces on the background and poignant childhoods of the accused. Their attorneys will be lionized on TV talk-shows as courageous heroes of justice and the American Way. (I saw the first episode of this latter phenomenon last night on a well-known TV talk-show.) Big Media will carry little else during the weeks of the trial. All other business of the country will appear to stop.

Except that it won’t stop – not really. Important legislation, like health care reform, will march steadily onward, away from the glare of the media spotlight, which will be otherwise occupied. The legislation’s provisions will receive little scrutiny from media obsessed with the trials. One morning we’ll read that cloture has been achieved on the Senate’s health-care bill. Later, we’ll hear that the bill has passed and is headed for reconciliation with the House bill. In due time, it will all happen – very little media attention having been focused on it while the terrorist trials are going on.

This – it seems to me – is the sly, ingenious purpose of the decision to bring the terrorists to trial on the world’s greatest public stage. (“If I can make it here, I’ll make it anywhere. It’s up to you, New York, New York…”) You couldn’t come up with a better diversion.

Legal scholars and other critics have pointed out that rules of discovery might produce revelations about American intelligence-gathering and interrogation methods that will help our enemies. Perhaps so, but I doubt if Mr. Obama and his advisors have lost a lot of sleep over it. Indeed, I think the war and the whole foreign policy shtick are simply viewed as tools to keep media attention diverted from the great work of “fundamentally transforming this country” – as Mr. Obama repeatedly declaimed during the campaign.

What about the genuine bad guys going on trial in New York federal courts? Suppose their lawyers get them off on technicalities? What if they get a hung jury because not enough unbiased jurors can be found? Or what if charges are dropped because a judge rules that the president of the United States has prejudiced the proceedings by guaranteeing that the defendants will be convicted and executed?

Not to worry, says the attorney general. We’ll never let them go. Besides – he might have added – they’ll probably be shot trying to escape. (So tragic – so unnecessary…) Big Al would be proud.


[1] Cryolite is a mineral containing aluminum, sodium and fluoride. Found mainly in Greenland, it was used to produce metallic aluminum during the 1940s.

[2] See a review of Ex parte Quirin at http://en.wikipedia.org/wiki/Ex_parte_Quirin