It seemed like a good idea at the time: trying Khalid Sheikh Mohammed and four other alleged 9/11 conspirators in a federal court in New York City. Let’s give the “worst of the worst” the best of American justice, only blocks away from Ground Zero.
But the Obama administration is retreating from the decision to hold KSM’s trial in Lower Manhattan after New York City Mayor Michael Bloomberg, who had originally supported the plan, changed his mind. Bloomberg told reporters on Wednesday [Jan. 27] that a trial expected to last months if not years would disrupt the city, damage its economy, and cost up to $1 billion in security.
The White House initially stood its ground, but for less than 48 hours. By Friday, aides were saying the trial, scheduled to begin in September, would be moved — to a location yet to be determined. New York officials were relieved.
The relocation, however, leaves in place the more fundamental decision — also drawing increased criticism — to try the self-confessed architect of the 9/11 attacks in a civilian court instead of a military tribunals. For the most part, the issue pits a Democratic administration against Republicans in Congress and national security-minded advocacy groups against civil liberties organizations. But doubts raised by some less ideological experts and even some liberals suggest that the question deserves careful consideration without being cast as a litmus test on the administration or the U.S. Constitution.
Attorney General Eric H. Holder Jr. sought to explain the decision in non-ideological terms in his prepared statement before the Senate Judiciary Committee on Nov. 18, a week after announcing the plan. KSM could be tried in a civilian court or a military commission, Holder said. He made the decision as a prosecutor, the attorney general said, based on “where the government will have the greatest opportunity to present the strongest case in the best forum.”
As he went beyond his prepared statement, Holder tried to reassure GOP senators about the risk of an acquittal. “Failure is not an option,” Holder said. The reassurance did little to neutralize criticism from the right but provoked tut-tuts from some nonpartisan experts about the apparent assumption of a predetermined outcome: verdict first, trial after.
The issue receded in the winter holiday season, but gained new traction with the administration’s decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber of flight 253, in civilian court too. Republican and conservative critics saw the decision as further confirmation that the administration naively views al Qaeda-inspired attacks on the United States as merely a law enforcement problem, not a war.
Civil liberties groups, including the bipartisan Constitution Project, defend use of civilian courts in part by pointing to the record. Nearly 200 terrorists have been successfully prosecuted in federal courts since 2001, they say, compared to only three so far in the military commission system set up at Guantanamo. In addition, they say the use of civilian courts showcases the U.S. legal system and denies accused terrorists the opportunity to depict themselves as victims of a sham proceeding.
Conservatives counter that accused terrorists will enjoy too many procedural rights in a civilian court and will use a federal trial as a soapbox for anti-American rants. The critique oddly disregards the rights granted the accused in the military commission system and denigrates federal judges’ ability to control a courtroom. But Benjamin Wittes, a scholar at the Brookings Institution who has tried to steer a nonideological course on these issues, says evidentiary and legal hurdles in civilian trials do carry a risk for successful prosecutions.
From a more liberal perspective, Stephen Vladeck, a professor at American University Law School in Washington, worries that courts will circumvent these problems in terrorism cases at the cost of degrading the criminal justice system for others. In any event, Vladeck says, KSM’s case logically belongs in the military tribunal. He is accused of war crimes — plotting an attack on civilian targets as a ranking al Qaeda leader — and was captured abroad by U.S. intelligence agents. If not for this case, Vladeck asks, what are the military commissions for?
The Obama administration may be shying away from the military commissions because of their dubious history. The Bush administration created them without adequate safeguards and housed them at Guantanamo with the intention of evading effective legal review. Yet Obama is not abjuring the use of military commissions altogether. At the same time, the administration is saying that roughly 50 Guantanamo detainees may be held indefinitely without any trial either in a civilian or military forum.
The administration may have a logic to these decisions, but it has yet to emerge. Steven Engel, a Washington lawyer who served in the Bush Justice Department, hints at a concern that the administration is simply manipulating the choice of forums: stronger cases showcased in civilian courts, weaker cases out of sight in military commissions.
KSM’s trial may yet be held in federal court, and his eagerness to claim credit for 9/11 may moot any concerns about the outcome. But the administration still needs to offer a better explanation of its legal strategy in what the president and Holder both acknowledge is a “war” against terrorism.