'Terror on Trial' Special: The Case Against KSM

This is a rush transcript from "Hannity," December 11, 2009. This copy may not be in its final form and may be updated.

SEAN HANNITY, HOST: The upcoming trial of KSM and co-conspirators will raise a whole host of legal issues. But it won't be the first time that we have put terrorists on trial.

Now, in response to the first attack on the World Trade Center in 1993, we tried the mastermind of the bombing and several other jihadists. So can those trials prepare us for what is to come? Let's take a look.

(BEGIN VIDEOTAPE)

HANNITY: After the 1993 World Trade Center bombing, the perpetrators were rounded up and put on trial in Manhattan. Khalid Sheikh Mohammed's nephew Ramsey Yousef and five others were convicted and will spend the rest of their lives behind bars.

Now KSM and his co-conspirators are headed to the same court. But will the trial like before be like predecessors? Unlike 9/11, the World Trade Center bombing was never considered an act of war.

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ANDREW C. MCCARTHY, FORMER ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT, NEW YORK: It's not like a bunch of people sat around a table and said "war, crime, war, crime, which is it?"

MICHAEL MUKASEY, FORMER U.S. ATTORNEY GENERAL: The witnesses were lined up. The evidence was lined up.

HANNITY: In addition the trials themselves revealed the peril of prosecuting terrorists in civilian court.

MUKASEY: The government generally is required in conspiracy cases to turn over lists of unindicted coconspirators, and it was required to do that here. Within days that list found its way to Usama bin Laden in Khartoum.

MCCARTHY: Al Qaeda tried to have an Al Qaeda central intelligence agency. They couldn't successfully gather the banquet of information that they get by undergoing trials in civilian courts.

HANNITY: During the course of the trials, American officials also began to realize that the attack was not an isolated incident.

MUKASEY: It was apparent that these people were into something much bigger and much more widespread and much more deep-seated.

HANNITY: Post 9/11 it became clear that terrorism could not be combated effectively through the justice system, so enemy combatants were tried in military commissions. Now Attorney General Eric Holder is moving to reverse this practice, in doing so, sending mixed signals to the U.S. military.

JOHN YOO, FORMER JUSTICE DEPARTMENT OFFICIAL: There is going to be a great deal of confusion now about all the rules that they have to follow. They have to essentially operate like police officers at crime scenes rather than soldiers and intelligence officers on the battlefield.

HANNITY: Also, the decision creates even more legal hurdles for the prosecution.

MUKASEY: The evidence in connection with 9/11 plot was gathered in diverse parts of the world in the belief that it would be able to be presented to a military tribunal. There was no gathering of evidence by police. There was no Miranda warnings, none of that.

HANNITY: Nonetheless, Mr. Holder's decision came to go news to at least one person, Khalid Sheikh Mohammed.

MUKASEY: KSM's first response when he was captured was I will see New York with my lawyer. He got instead a military commission. Now, of course, he is getting the stage of his dreams, which is a courtroom in New York City.

(END VIDEOTAPE)

HANNITY: And joining me now with more on this is former U.S. assistant attorney and senior fellow at the National Review Institute Andy McCarthy. He led the prosecution against those involved in the 1993 World Trade Center attack. Also with us is Alabama Senator Jeff Sessions. Guys, good to see you. Thank you for being here.

(APPLAUSE)

HANNITY: Andy, you led the prosecution. You have been writing great stuff about how bad this is on National Review Online. Why don't you explain to everybody what it was like back then?

MCCARTHY: Back then we were dealing with something that we had never dealt with before. And it's not like it was a decision made to do it as a criminal justice matter rather than a war matter. We didn't know who had attacked us, initially.

But also the way the system worked at that time, the police and the emergency rescue people, those were the people who actually drilled for big, catastrophic events. So, without even really thinking about it, you are suddenly doing an investigation. And then people are in custody, and then the next thing you have to do is indict them.

So it wasn't really a conscious decision back then, Sean. It was just really reactive.

HANNITY: And in that sense I think Rudy Giuliani was right in our set-up piece tonight in that he said in 1993 we didn't know. But now we know. So the question is why would we abandon, senator, the precedents from the Civil War and Revolutionary War and World War II, and even the inconsistency in this administration? Why would we do this?

SEN. JEFF SESSIONS, R-ALA.: It's unthinkable to me. And I have not been able to understand it. There is no doubt about it. All the nations of the world provide for these kinds of trials outside their normal system for people who are attacking them, warriors, unlawful combatants, people who are trying to destroy the government of which they are a part.

And you can give people a fair trial. We don't want to treat anybody not fairly. But the different procedures are far more appropriate in military commissions, and I think that's really big mistake.

HANNITY: The president said something and then he backed off it. The president said, well, I think the American people will be happy after they are tried and convicted, and I think he said put to death. Then he backed off that pretty quickly here.

But Andy, is there a chance, and I was asking Rudy Giuliani about this, that because they didn't get their Miranda rights, that his confession, that he was responsible for this attack from A to Z will become inadmissible in the courtroom?

MCCARTHY: There is absolutely a chance. In fact, I actually think it's a worse situation even than Mayor Giuliani suggested, and that's because Khalid Sheikh Mohammed was actually under indictment in the United States since about 1996 in connection with the Bojinka case.

As a matter of law, he is an accused already before we even get to the point of custodial interrogation. He is entitled to have his lawyer present.

HANNITY: So he is going to have his lawyer. And then how likely is it, senator, that it's going to be our CIA, it's going to be Dick Cheney, it's going to be George Bush that is on trial, and not him, or maybe even a platform for his jihadists extremism?

SESSIONS: Well, as a prosecutor, I have been through a lot of big trials, public corruption, white collar crime, they all raise prosecutorial misconduct. It allows the defendant to probe the prosecution's entire case and why they were picked and how they came to be charged.

And this could provide just an incredible opportunity for them to attack the government for long periods of time, bringing out information that's not helpful, really in justice to the defense but actually weakening the United States' position throughout the world.

HANNITY: And maybe even send a message to their fellow terrorists? Is that a possibility?

MCCARTHY: That's what the trial is about.

HANNITY: And the last trial that you were involved in, last point on this, isn't it true that Usama bin Laden himself was tipped off that we knew his location and that he moved as a result of the first trial that you were involved in?

MCCARTHY: Well, he was certainly -- he was certainly tipped off about a lot of what we knew about Al Qaeda. In fact, the letter that Judge Mukasey talked about was the first document ever produced by the American government that was turned over to someone outside the government that had his name on it as a coconspirator in a terror network.

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