Argument: Civilian trial of terrorists risks acquittal, hung jury

Issue Report: Trying 9/11 terror suspects in NYC courts


Dan McLaughlin. “Why Terrorists Don’t Deserve A Court Date.” CBS. November 18, 2009: “There is, inherent in civilian criminal trials and given the likelihood that the defense will seek to play politics with the trial, some risk of one or more acquittals or hung juries that would give a propaganda victory to the terrorists and destroy what little symbolic value the trials have if the defendants are remanded to custody after being acquitted.”

“Don’t ‘trust’ court to try terrorists.” Lancaster Online. Nov 20, 2009: “What if Khalid Sheikh Mohammed, self-proclaimed mastermind of the Sept. 11 massacre of nearly 3,000 Americans, is found innocent at his civilian trial in New York City?

Will he walk out into lower Manhattan, a free man? Will he fly home to Afghanistan, track down Osama bin Laden and exchange high-fives? Will he begin planning another attack on the United States?

But a verdict of “not guilty” is not possible, say President Obama and Attorney General Eric Holder.

Obama predicts the death penalty will be applied. “Failure is not an option,” Holder exclaims, and “I guess what I’m saying is trust me.”

Failure would not have been an otpion in a military trial. Mohammed previously sought to plead guilty before a military commission.

But a judgment of innocence is a possible scenario in a civilian trial. Otherwise, there is no purpose in trying Mohammed and four other terrorists in New York, rather than in a military court.

There is only one reason to hold this trial in a civilian court: to provide greater legitimacy for the sentence. But what if something goes wrong and the sentence is not death? The attorney general claims “failure is not an option,” but will he hand-pick the jury?”

Frank Gaffney. “Trying Terrorists in New York City Is Courting Disaster.” Newsmax. November 16, 2009: “Consider just a few of the problems that seem likely to complicate, if not preclude, the conviction of the 9/11 plotters:

The moment they set foot in this country, all will be accorded constitutional rights to which they are not entitled — but from which they will extract considerable benefit. For example, they will have access to the best defense counsel, men and women determined to use civil liberties designed to protect the innocent to secure release of the guilty. Many of these lawyers constitute what is known as the “Guantanamo bar,” including attorneys from Holder’s former law firm and some of his senior subordinates now responsible for detainee policy at the Department of Justice.

The attorneys will point out that, when apprehended, the accused were not read their Miranda rights. That was because, of course, they didn’t have any. But that was then and this is now.

The terrorists’ lawyers also will try to exploit the government’s reluctance to compromise intelligence sources and methods, in the hope of ensuring that the cost to the national security of prosecuting their clients will become excessive.

The defense will work hard to reveal as much as possible of the enhanced interrogation techniques and other means used to extract information from hardened terrorists such KSM. In particular, they will trumpet the fact that Mohammed was subjected to one of those techniques — waterboarding — on more than 180 occasions. (Never mind that he divulged invaluable information that prevented new attacks, made it possible to roll up al-Qaida operatives, and saved American and others’ lives.)

My guess is that the defendants will ask Obama and Holder to testify on why they consider such a practice to be “torture.”

Then, there is the probability that the defense will argue successfully that they can’t find an impartial jury in the city profoundly traumatized by the 9/11 attacks. The Washington Times reported Monday that Sen. Jack Reed, D-R.I., believes “‘The people in New York who saw the towers fall’ would be the ideal people to judge the September 11 terrorists.”

But will a federal judge agree?”