The Washington Post reported today, citing administration officials, that, “President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal.”
This is obviously a change of course from U.S. Attorney General Eric Holder’s plan to try Mohammed and his fellow alleged terrorists in federal criminal court in New York.
As the Post noted, “Obama has favoured trying some terrorism suspects in civilian court as a symbol of commitment to the rule of law…”
The change would be a result, mostly, of pressure from Republicans who assert that a military tribunal is the correct place for the trial. And it might help secure the “necessary funding and legal authority” the administration needs to close Guantanamo.
Observing this situation is, as an attorney, quite frustrating. It’s troublesome that so many legislators distrust our court system, especially considering how many politicians are also lawyers who spent plenty of time practicing within it.
It also seems like an admission that putting the treatment and interrogation of these individuals in front of the federal court system would mean facing tough questions detractors fear would somehow derail the trial. That seems like an admission that either a) they believe the rule of law shouldn’t apply or b) they are not willing to live up to it.
(As an aside, I’m not sure a single person exists that thinks, even if those issues were fought over to the nth degree, that Khalid Sheik Mohommad would walk out of the court room a free man.)
The concerns over controversial treatment are already being dealt with to a certain extent. “Justice Department lawyers who were preparing for the civilian trial of Mohammed and his alleged co-conspirators planned to avoid using any evidence obtained through the coercive interrogation of the defendants while they were held in CIA secret prisons,” the Post said.
So what’s the problem? Prosecutors believe, apparently, that they can achieve convictions without utilising the more controversial evidence. That is not to say that defence attorneys would not raise the related issues, but that should happen in a military tribunal, too.
In February 1993, Eyad Ismoil parked a rental van loaded with a homemade bomb in the garage of the World Trade centre. The resulting explosion killed six and injured hundreds. In 1998, Eyad Ismoil, the last of six defendants convicted for the attacks, was sentenced to life in prison.
Those trials were handled by the U.S. Attorneys Office in Manhattan.
The September 11, 2001 attack was more catastrophic in the number of people killed and injured, and it lead directly to the “war on terror” that includes the war in Afghanistan that continues today.
But that difference does not mean a change of forum is necessary.
We still have not heard a plausible explanation from anyone why the same prosecutors and court and jurors that handled those terror trials could not handle this one.
The costs to the city to secure Lower Manhattan is a reasonable complaint, and the idea of holding the trial in a location that is cheaper to secure is one worth exploring. But the court should be federal court, for the same reasons Obama articulated in the first place. This is not a political decision, and all parties responsible for making it into one should be ashamed.
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