The heated second-guessing by conservatives of Attorney General Eric Holder’s decision to hold a civilian trial in Manhattan for Khalid Shaikh Mohammed and four others charged as co-conspirators in the 9/11 mass murders is to some extent understandable.
Of course, it’s fatuous to rant, as some Republicans do, that a law enforcement response to terrorist war crimes is some kind of illegitimate Democratic invention. The Bush administration combined war-on-terrorism rhetoric with civi-lian criminal prosecutions of would-be shoe-bomber Richard Reid, would-be hijacker Zacarias Moussaoui, and scores of lesser terrorist wannabes. Congress has given the government the options of trying such people in civilian federal courts or by military commissions, or detaining them without charge as enemy combatants. The circumstances dictate which approach makes the most sense in any specific case.
The best choice in this instance is "a tough call," as Holder testified on November 18 to the Senate Judiciary Com-mittee. That’s because removing these five defendants from the military commissions where their cases began to a civi-lian federal court in Manhattan will have real costs, as former Attorney General Michael Mukasey and some other se-rious analysts argue.
Specifically, a civilian trial will increase the risk that sensitive national security secrets will spill out. It will give defendants a bigger stage on which to rail about CIA "torture" and demonize America. It will make the judge, prosecu-tors, jurors, and the courthouse targets for terrorists. It could theoretically lead to acquittals or dismissals of charges on technical grounds. And it plays into the loud complaints by human-rights activists that the administration is relegating to second-class justice the terrorist defendants who are still to be tried by military commissions.
But in the 9/11 prosecution — in which the government’s evidence is so strong that the defendants will almost cer-tainly be convicted and sentenced to death or to life in prison without parole — the advantages of a civilian trial seem to outweigh the risks.
One advantage is that a civilian trial will show Americans and the rest of the world that our government is sure it can prove the 9/11 defendants guilty in the fairest of all courts; is confident that the hate-filled propaganda of the ac-cused will appeal only to barbarians like themselves; and will not let fear of more terrorist attacks drive the trial away from the most logical venue, which is the federal courthouse near the scene of the most horrific crime.
Trying the 9/11 defendants before military commissions, on the other hand, would be widely (if unfairly) de-nounced as designed to ensure convictions regardless of the evidence. A decision to continue holding the suspects with-out trial — after eight years of presidential vows to put them on trial — would be a damning admission that America is simply not up to the task of bringing war criminals to justice.
American lives and America’s fortunes depend as much on international opinion as on preventing leaks of classified information.
A second advantage is that international opinion sees civilian trials as the only legitimate way to deal with those accused of terrorism.
I can almost hear some of my conservative friends shouting: Screw international opinion! We are sick of Obama bowing and scraping to anti-American sentiment abroad!
I’m getting a bit sick of that too. But we can have a decent respect for the opinions of reasonable people in other countries without giving in to unreasonable people. The fact is, American lives and America’s fortunes depend at least as much on international opinion as on, say, preventing leaks of classified information.
"I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo," Matthew Alexander, a former military interrogator in Iraq, wrote in a November 2008 Washington Post op-ed. "At least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse."
The abuses symbolized by Guantanamo have also taken a toll on the willingness of foreign governments to help us fight terrorism.
To be sure, Guantanamo had become a model prison by the time President Bush left office, and the international condemnation is outdated. But it is still a fact of life, and is critical to a hard-headed appraisal of the benefits of a civi-lian trial.
Do these largely symbolic benefits outweigh the risks? Holder — who knows much more than his critics about the dangers, including the risk that a bad outcome would destroy his reputation — thinks so. According to his public state-ments and other sources, his logic goes like this:
National security secrets. The risk of damaging disclosures is limited by both the passage of time and the availabil-ity of a wealth of incriminating evidence that does not derive from classified information, in the view of intelligence-community lawyers who have vetted the prosecution’s strategy. This evidence includes multiple incriminating docu-ments and other information found when Mohammed was seized in Pakistan in March 2003, as well as a 2002 interview in which he told Al Jazeera he was the head of Al Qaeda’s military committee.
Brutal interrogations. Holder and his team plan to prevent the 9/11 prosecution from morphing into a trial of the CIA for torture, Newsweek has reported, by avoiding or minimizing reliance on admissions derived (or arguably de-rived) from coercive interrogations. These admissions may include Mohammed’s statements during a 2007 Guantanamo hearing that he personally beheaded Wall Street Journal reporter Daniel Pearl and "was responsible for the 9/11 operation, from A to Z." To be sure, the defendants will still be entitled to present evidence designed to show that they were so badly brutalized that they cannot be prosecuted, are mentally incompetent to stand trial, or should be spared the death penalty. But the same would be true with a military commission. And a good trial judge would keep the focus on the charges that the defendants committed mass murder.
Propaganda. Although the defendants will probably try to turn the trial into an America-bashing circus (again, as they would with a military commission), their hate-filled rhetoric will make them look more like murderers of innocents than the righteous warriors they claim to be. That was the apparent effect of Moussaoui’s bizarre rants in a federal courtroom in Alexandria, Va., before he pleaded guilty. He wasted years of the court’s time. But he won few converts, if any.
Security.Securing the New York City trial and its participants will be expensive and disruptive. But experience suggests that the jurors — who can be kept anonymous — the judge, and the prosecutors will not be in serious danger. It’s always possible that terrorists will attempt to pull off a mass-murder attack as close as they can to the trial site. But Manhattan’s fortress-like federal courthouse will be far less vulnerable than thousands of schools, shopping malls, and other soft targets all over the country are every day of the week.
Any defendant acquitted of war crimes could still lawfully — if awkwardly — be held as an enemy combatant.
Crazy jurors. The chance of an acquittal seems infinitesimal. Yes, a few juries have done crazy things. But to have a chance of emulating O.J. Simpson’s success at playing the race card, for example, Mohammed would need a jury full of jihadist sympathizers. That’s a statistical impossibility. In any event, any defendant acquitted of war crimes could still lawfully — if awkwardly — be held as an enemy combatant.
Crazy judges. Also apparently infinitesimal is the chance that the courts would dismiss the case on technical grounds, such as a violation of the Speedy Trial Act or prejudicial pretrial publicity. Yes, there are eccentric judges. But they get reversed on appeal. As for pretrial publicity, the law requires only that jurors credibly promise to be guided by the evidence presented in court, not that they be comatose.
Inconsistency. There’s no denying the seeming inconsistency of trying some Qaeda defendants in civilian court and others before military commissions. If military justice is good enough for some of them — and was good enough for German saboteurs and Japanese generals in World War II and other war criminals in centuries past — why isn’t it good enough for Mohammed? And if he deserves all the rights of an ordinary criminal defendant, why do others accused of less monstrous war crimes deserve any less?
My answer (if not Holder’s) is that the distinction has nothing to do with what the defendants deserve (summary execution) and everything to do with public perceptions. The military commissions — much improved since 2001 — are more than fair, with rules quite similar to those used in federal criminal courts. But their image — grievously damaged by the simultaneously imperious and slapdash way in which Bush created them and their almost comical succession of failures on his watch — has not caught up with the reality.
Given this, there is a pragmatic logic to Holder’s decision to try the most-publicized cases in New York City while keeping the others — including some that may pose trickier evidentiary problems — in the hands of the less costly, more flexible military commissions, away from the brightest spotlights.
Machiavellian? Perhaps. But in a good way.