Justice and terrorism
The actions of Khalid Sheik Mohammed, the self-proclaimed mastermind of the 9/11 terrorist attacks against the United States, won’t be the only issue at trial when he appears before a federal civilian court in New York. There will be three other highly visible items:
✔ The ability of the United States to maintain the secrecy of critical intelligence during the trial of a terrorist.
✔ The Bush administration’s handling of terrorists in the immediate aftermath of 9/11.
✔ The commitment of the United States to the rule of law.
U.S. Attorney General Eric Holder announced last week that Khalid Sheik Mohammed and four other presumed al-Qaida terrorists are to be tried in civilian courts in New York City. Five other men who committed acts of terrorism against U.S. military installations in foreign countries are to go before military commissions like those established by the Bush administration. But those accused of crimes on U.S. soil will be tried in U.S. courts, Holder decreed.
Mohammed and others like him seek to destroy this nation and the protections of individual rights it offers because they want a fundamentalist Islamist society where there are few protections for individuals. One way we can clearly demonstrate we are not cowed by their actions is by trying their most prominent leaders in open court and abiding by the rule of law.
Military commissions are appropriate venues for those who attack U.S. military facilities overseas. But they are less public and the rules are different than in civilian court.
Holder’s decision immediately provoked anger from Obama critics.
Their primary concern is that the rules of evidence in civilian trials may force U.S. security agencies to make public details of how they tracked Mohammed and other terrorists after 9/11. Allowing the public or defense lawyers access to that information could make it more difficult to protect this country against future attacks, they say.
It’s a legitimate concern, but not insurmountable. Federal judges have a great deal of leeway in what is disclosed in open court, and they have tools to seal certain evidence if national security is at risk. Federal attorneys are sure to fight any defense fishing expeditions designed simply to obtain intelligence information.
Furthermore, it’s not at all certain how valuable the intelligence information that led to the capture of Mohammed and others will be now, more than eight years after the 9/11 attacks.
The second concern of some critics is that defense attorneys in these cases will seek to turn the trials into indictments of the Bush administration and its anti-terror tactics. Some of that is all but inevitable in the case of Mohammed, since he was repeatedly waterboarded as federal authorities sought information about other potential terrorist attacks.
But the case against Mohammed doesn’t rest on any confession he made as a result of waterboarding. It will be up to the trial judge to keep the trial focused on the crimes of 9/11, not political attacks on Bush and Co.
We expect Khalid Sheik Mohammed and his comrades will be convicted and sentenced to death in their federal trials. If they are, critics of the United States will not be able to argue that we tried the terrorists in secret because we were afraid to let them appear in open court.