President Barack Obama is attacking a red herring when he defends his decision to send the worst terrorists at Guantanamo Bay to United States prisons by saying the likelihood of escape from secure federal facilities is very low.
Of course it is. No rope ladder or prison laundry truck is likely to do the trick.
But when it comes to federal judges, we can't be so sure.
The reason we sent the terrorists to Guantanamo in the first place, rather than bring them onto U.S. soil, was never really connected to worries that they might escape. The Bush administration feared, quite correctly, that if the inmates were in federal prisons on US territory, federal judges would take their pleas for constitutional rights more seriously.
That argument is still true, and bringing the terrorists to the United States puts us at risk that they could be freed by court order.
Some detainees will be tried in U.S. courts on U.S. soil. The first will be tried in New York.
This raises two problems: First, if he is acquitted, where will he be released? Likely, he'll just be invited to walk out the door and onto the streets of New York. Second, is there a danger of terrorist retaliation or attempts to interdict the trial with violence?
Trying a terrorist in the Big Apple serves to paint a bull's-eye on the courthouse. The recently foiled plan to attack New York City synagogues demonstrates that terrorists have the city in their sights, as they have since the 1993 World Trade Center attack. Could Obama find a worse place to conduct a trial?
The very concept of trying terrorists under U.S. law is a slippery slope. We specifically allow our military and intelligence operatives to proceed without the procedural safeguards enumerated in the Fourth, Fifth and Sixth amendments. Why? Because we didn't plan for trials in civilian courts, we didn't take care to see that the evidence was obtained so as to be admissible in civilian courts.
If Obama is now to reverse field and try these terrorists, the results might be disastrous. It's unlikely that the prosecutors would be able to use all the evidence against them because it wasn't gathered with an eye to its admissibility in a criminal trial. The best evidence couldn't be used against the 20th hijacker, Zacharias Moussaui, so he did not get a death sentence or even life in prison.
If terrorists are acquitted or released by a federal judge's ruling, the odds are good that they will go right back to fighting against us. In our book, "Fleeced," we describe some of the most egregious examples of freed terrorists' returning to their wicked ways. And former Vice President Dick Cheney in his address Thursday said that one in seven of the detainees freed from Guantanamo has rejoined the terrorists.
Consider the case of Abdullah Mehsud, who was captured in Afghanistan and, after hiding his identity as second-in-command of a Pakistani Taliban group, was freed after two years at Gitmo. Once free, he kidnapped two Chinese engineers who were working on a hydroelectric dam and killed one of them.
Obama's plans will put his kind right in our midst, awaiting either a trial they may win or a federal court ruling that may spring them.