Some think the decision to try Khalid Shaikh Mohammed and co-conspirators in New York is perfect justice. Other family members of 9/11 victims do not -- to the point of anger. Some of them simply do not believe in American justice or that it should be applied to non-Americans. In fact at least one victim's relative (in a cold rejection of justice itself) thinks they should be executed without trial.
But not all.
“Let them come to New York,” said Jim Riches, a retired deputy chief of the New York Fire Department, whose son, Jimmy, also a firefighter, died in the attack. “Let them get on trial. Let’s do it the right way, for all the world to see what they’re like. Let’s go. It’s been too long. Let’s get some justice.” ...NYT
The reverberations of the prospective trial in downtown Manhattan are being felt through the legal community, quite apart from disagreement about whether they should be tried on American soil. For a start, there's the question of how KSM was treated as a prisoner.
The government has acknowledged waterboarding him 183 times to extract information about the Sept. 11 attacks, which he eventually admitted planning.
He could plead guilty. Or he could use the public trial as an opportunity for martyrdom.
Finally, if Mr. Mohammed is convicted, defense lawyers will most likely plead for jurors in New York, historically more cautious about capital punishment than much of the rest of country, to spare the sentence of execution and send him to prison for the rest of his life instead.
The Obama administration’s decision to try Mr. Mohammed and four other terrorism suspects in a civilian court provoked sharp debate among politicians and lawyers about whether American courtrooms are the proper place for so-called enemy combatants, whose suspected crimes were hatched overseas and who viewed themselves as participants in a war against the United States. Both sides agreed that defense lawyers and prosecutors would face unique problems in what is likely to be a hugely complex and emotion-laden case. ...NYT
And so the inevitable legal arguments begin again. James J. Benjamin Jr., a former federal prosecutor, and Glenn Sulmasy, an expert in national security law, debate the issue in the New York Times.
James Benjamin thinks justice will be served, even as part of US counterterrorism strategy.
As the 1990s taught us, an effective counterterrorism strategy must encompass vigorous military force, smart and tenacious intelligence gathering, and diplomatic efforts.But a sound counterterrorism strategy must also include a reliable, stable system for prosecuting accused terrorists when such prosecutions are appropriate in light of the evidence and the law. Based on the experience of the last 20 years, we should have confidence that federal courts are capable of playing a primary and not just a supporting role in those prosecutions.
Glenn Sulmasy does not. He believes the kind of enemy we're dealing with is new and demands a new approach.
In this armed conflict against Al Qaeda, we find ourselves confronting novel circumstances. The Qaeda fighter is a hybrid — a mix of international criminal and warrior. The conflict we are engaging in is a hybrid — a mix of law enforcement and warfare. Since we are fighting hybrid warriors in a hybrid war, it seems logical that policy makers strongly consider the creation of a hybrid court: a national security court.
There have been many observers, on both sides of the aisle, advocating for just such a solution to bringing the alleged Al Qaeda fighters to justice. In creating such a court, the nation would truly move forward from the debates of the past and embrace a new system that would not unnecessarily taint our two existing forms of justice: the military justice system and our own civilian criminal justice system.By taking the time to establish a national security court system over the next few months, policy makers would be able to logically and pragmatically best achieve the delicate balance of providing for our nation’s security while still upholding our longstanding commitment to the promotion of human rights.
The problem is, of course, that we're not just facing a new enemy overseas but one within our own territory: a rogue government which decided to treat Al Qaeda as warriors rather than criminals and then used criminal methods to deal with them as detainees. A national security court system could simply provide a way of ensuring conviction for the detainees but not for their lawless captors. A federal trial near the site of the attack -- with full access for media -- will increase the possibility that the whole damning story will emerge.
In an editorial, the Times gives the administration something like a B+.
Putting the five defendants on public trial a few blocks from the site of the former World Trade Center is entirely fitting. Experience shows that federal courts are capable of handling high-profile terrorism trials without comprising legitimate secrets, national security or the rule of law. Mr. Bush’s tribunals failed to hold a single trial.The fact that defense lawyers are likely to press to have evidence of abuse aired in court — Khalid Shaikh Mohammed was tortured by waterboarding 183 times — is unlikely to derail the prosecutions, especially given Mr. Holder’s claim to have evidence that has not been released yet.
Regrettably, the decision fell short of a clean break. Five other Guantánamo detainees are to be tried before a military commission for the 2000 bombing of the Navy destroyer Cole, including Abd al-Rahim al-Nashiri, who is accused of planning the attack.
The rules for the commissions were recently revised to bring them closer to military standards. And Mr. Holder cites the fact that the Cole bombing was an attack on a military target to justify a military trial. But that does not cure the problem of relying on a new system outside the regular military justice system. Nor does it erase the appearance that the government is forum-shopping to win convictions. Most broadly, it fails to establish a clear framework for assigning cases to regular courts or military commissions going forward.
Still, this much is clear: the Obama administration has yet to completely figure out how to rectify the disgraceful Bush detention policies, but it is getting there.
By and large, we fall into two groups whose major concern is perhaps not so much the perfect trial for these defendants. Instead, those of us who want to hear no evil about the Bush administration prefer to see the attack as "terrorism." We are more interested in conviction than civilian justice.
The rest of us saw the 9/11 as international lawlessness. We watched as the Bush administration used the deadly attack as a stepping stone into years of war, criminality, and betrayal. We would like to see our justice system deal fairly with all the criminals involved.
