Comment & Debate
In November of 2009, US Attorney General Eric Holder ordered the trial of 9/11 mastermind Khalid Sheikh Mohammed and four others in a federal criminal court in Manhattan, New York. These civilian courts are an alternative choice to trying terror suspects in military tribunals at Guantanamo Bay, Cuba. The decision sparked substantial debate in the United States and around the world. The main questions framing the debate include: Can the conviction of the 9/11 terrorists be ensured in civilian courts, where there exists a risk of acquittal? Do civilian courts better uphold the rule of law, or are military tribunals consistent with US Constitutional law, rights, and values? How do civilian courts compare to military tribunals in terms of efficacy and the rule of law? Have civilian courts been more or less succesful than military tribunals in trying and convicting terror suspects? Have they been faster? Is trying terrorists in NYC courts fair to the victims of the attack and the city’s inhabitants? Is trying terror suspects in NYC safe? Will it incite attacks at or near the trial? Will it turn into a circus of protesters and radicals vying for attention? Will protests and counter-protests surround the trial? Will the trial jeaparize intelligence sources? Will the terror suspects use the trial as a platform to spread their ideologies? Will the trials be a propaganda win or loss in general for the US and West versus terrorists and their radical ideologies? Overall, was the decision to try the 9/11 terror suspects in NYC a good one?
“our federal courts have waged an admirable war of their own against terrorists, whether the judges call it that or not. Our civilian courts have tried 195 cases of terrorism since 2001, according to Justice Department figures, and 91percent of them have resulted in convictions.”
“Others complain that Mr. Mohammed might take advantage of quirks of the criminal justice system and go free. That’s highly unlikely. First, he has already confessed to the crime; and, given the zero acquittal rate for terrorists in New York previously, any anxiety about a “not guilty” verdict seems unwarranted.”
Eric Holder said at a November Congressional hearing on his decision to try terrorists in NYC: “We would continue to hold them under the laws of war. We believe we have the authority to do that.”[1]
“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.” This could result in terrorists being set free.
“everyone knows that whatever the outcome of the trial, KSM will never walk free. He will spend the rest of his natural life in U.S. custody. Which makes the proceedings a farcical show trial from the very beginning.”
“8. There is a risk that, to guard against [an acquital], rules and precedents governing criminal procedure will be distorted in ways that have lingering effects on the regular justice system.”
“Attorney General Eric Holder Jr. took a bold and principled step on Friday toward repairing the damage wrought by former President George W. Bush with his decision to discard the nation’s well-established systems of civilian and military justice in the treatment of detainees captured in antiterrorist operations.”
Rudy Giuliani told reporters about the 2006 civilian trial of “20th hijacker”: “I was in awe of our system. It does demonstrate that we can give people a fair trial, that we are exactly what we say we are. We are a nation of law. … I think he’s going to be a symbol of American justice.”[2]
“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 derived) 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.”
US Attorney General Eric Holder said in a November 2009 Congressional hearing defending his decision to try 9/11 terrorists in NYC: “There is nothing common about the treatment the alleged 9/11 conspirators will receive. In fact, I expect to direct prosecutors to seek the ultimate and most uncommon penalty for these heinous crimes.”[3]
Some argue that trying terrorists in NYC grants terrorists their wish. But, the law is blind to such considerations.
Sen. John McCain, R-Ariz., compared the decision to try accused 9/11 mastermind Khalid Sheikh Mohammed and other terrorists in New York City to trying Nazi war criminal Hermann Goering in San Francisco. “It’s ridiculous. These are war criminals and terrorists and they should not be privy to regular courtroom procedures.”
Terrorists are a certain kind of villan. They attempt to kill massive numbers of civilians in a war against civilization and society. They are not like common criminals, so should not be treated as such, with rights in a civilian trial.
Former New York Mayor Rudy Giuliani commented that he felt the decision to try terror suspects in New York: “seems to be an overconcern with the rights of terrorists and a lack of concern for the rights of the public.”[4]
“The Sept. 11 terrorist attacks were an act of war, as much as if a nation-state had attacked us. Trials should not be held for war criminals until the war has been won.”
Former New York Mayor Rudy Giuliani said on ABC’s This Week: “Khalid Sheikh Mohammed, when he was first arrested, asked to be brought to New York. I didn’t think we were in the business of granting the requests of terrorists.” [5]
“In deciding to use federal court, the attorney general probably considered the record of the military commission system that was established in November 2001. This system secured three convictions in eight years. The only person who had a full commission trial, Osama bin Laden’s driver, received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge.”
“Trying the 9/11 defendants before military commissions, on the other hand, would be widely (if unfairly) denounced as designed to ensure convictions regardless of the evidence. A decision to continue holding the suspects without 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.”
“a federal court trial will come sooner and be speedier, since the new military rules have yet to be completed and tested in the real world.”
“there is no longer much difference between a military and civilian trial. After the U.S. Supreme Court weighed in on the shortcomings of George W. Bush’s tribunals, Congress and the Obama administration granted more rights to the accused.” Therefore, trying terrorists in civilian courts is little different, and not more risky.
“The trials are wholly unnecessary; the Administration is holding some enemy combatants without trial and trying others through the military commission system, thus conceding that it has alternatives. As a result, any risks, expenses or other downsides of the trials are being undertaken solely for the purpose of empty symbolism.”
“The Fifth Amendment requires indictment by a grand jury, but specifically excepted from that requirement are “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” In other words, the men and women serving in our own military forces are not entitled to the benefits of trial in civilian courts, nor are civilians serving in the militia when they have been called into service. It would be odd indeed to read the Fifth Amendment as affording greater access to civilian courts to non-uniformed soldiers of terrorism waging war on the United States than it provides to our own soldiers and civilians.”
“Alternatively, Holder tried to make the case that he chose a civilian New York trial as a more likely venue for securing a conviction. An absurdity: By the time Obama came to office, KSM was ready to go before a military commission, plead guilty and be executed. It’s Obama who blocked a process that would have yielded the swiftest and most certain justice.”
“As for emotional pain, one of the advances in the U.S. criminal justice system is giving victims a place at trial and a chance to be heard. The families wouldn’t get that in Guantanamo.”
New York Mayor Michael Bloomberg said in November of 2009: “It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered.”[6]
“Instead of a straightforward finding of guilt and execution in a military court, Americans who suffered the loss of loved ones on 9/11 will have to suffer through a lengthy trial designed to show the world that Americans are fair to terrorists. […] And they will have to suffer that trial within blocks of where two planes commandeered by fellow terrorists flew into and destroyed the Twin Trade Towers.”
“it is unlikely to make New York a bigger target than it has been since February 1993, when Mohammed’s nephew Ramzi Yousef attacked the World Trade Center. If al-Qaeda could carry out another attack in New York, it would — a fact true a week ago and for a long time. Its inability to do so is a testament to our military, intelligence and law enforcement responses since the Sept. 11, 2001, attacks.”
“It is also an unfortunate truth that we have been through terrorist trials before in New York City. The prosecutors as well as the federal and city law enforcement officials are experienced and are prepared. There is probably no other location in the United States better prepared for this trial than New York. […] Some argue that the trial puts New York at the center of the terrorist target. I would argue that we have always been there and we will not let fear rule the day.”
Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee: “I don’t think we should run and hide and cower. Let’s use our system.”[7]
New York Mayor Rudy Giuliani praised the trial of the 1993 bombing of the World Trade Center, saying, “New Yorkers won’t meet violence with violence, but with a far greater weapon — the law.”[8]
“Apart from the fact that any such trial will be a security nightmare and a terror threat to New York — what better propaganda-by-deed than blowing up the entire courtroom, making KSM a martyr and making the judge, jury and spectators into fresh victims? — it will endanger U.S. security.”
“The detainees, as they have shown in the past, are especially dangerous to guards, a problem that’s more acute when in transit or in civilian prisons than in a facility like Guantanamo that’s designed to house them.”
“it is clear from existing jurisprudence that physical presence in the United States would be a significant, if not a decisive, factor. That presence would generate serious security concerns for any person or place associated with their prosecution or confinement.”
“In terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant’s ability to raise irrelevant issues and tightly controlling the courtroom.”
“John Yoo, a former Bush administration lawyer, argues that the trial would be an “intelligence bonanza” for our enemies. Also unlikely. Our prosecutors are certain that there is enough unclassified evidence to make their case. Moreover, the most prized intelligence is recent, specific and actionable. Al Qaeda today is most concerned with discovering when and where the next drone missile attack will take place in Pakistan, information not likely to be disclosed during a trial about a conspiracy hatched more than a decade ago.”
While there is a remote chance that civilian courts would expose some intelligence, it would only be exposing 8-year-old intelligence, which is very unlikely to be useful to terrorists.
“Civilian courts with broad rights of cross-examination and discovery give terrorists access to crucial information about intelligence sources and methods. […] That’s precisely what happened during the civilian New York trial of the 1993 World Trade Center bombers. The prosecution was forced to turn over to the defense a list of two hundred unindicted co-conspirators, including the name Osama bin Laden. ‘Within ten days, a copy of that list reached bin Laden in Khartoum,’ wrote former Attorney General Michael Mukasey, the presiding judge at that trial, ‘letting him know that his connection to that case had been discovered.'”
“Andrew McCarthy, the former assistant U.S. attorney who tried the “Blind Sheik” Omar Abdel Rahman for his role in the 1993 bombing of the World Trade Center, […] told the Wall Street Journal that he supported the idea of trying Rahman in a civilian court at first, but discovered the problem of a criminal defendant’s access to all kinds of government information. McCarthy has observed that intelligence information went from the World Trade Center defendants to Osama Bin Laden within days.”
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