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December 16, 2009 Leave a comment Go to comments

Attorney General Eric Holder recently decided that the United States would prosecute alleged 9/11 mastermind Khalid Sheik Mohammed in federal district court in New York, rather than in a military tribunal. Critics of this decision have not suggested that there are legal barriers to this move, and Holder agreed that civilian and military courts are both available under the law. Rather, the debate has played out on policy grounds.

When called before Congress to explain his decision– one he made without personal consultation with President Obama– the Attorney General said he did it to restore the integrity of the American judicial system. Part of Holder’s explanation of this justification was that civilian deaths outnumbered military deaths in the 9/11 attacks. He also said that the federal government, rather than New York, would bear the cost of the trial, which he estimated at $75 million for the first year.

If the Attorney General is trying to restore the integrity of the American judicial system, does it make sense to try Mohammed in civilian court? While our civilian judicial system is under daily attack by scholars and academics for perceived inefficiencies and arguably inappropriate resource allocations, these are comparatively minor points. Holder presumably is responding to the more significant criticism from popular and political sectors at home and abroad that American military tribunals are inadequate and lacking in integrity. The basic argument is that military tribunals, with their procedural restrictions, present an environment where the cards are stacked against detainees, who are tried and convicted with secret evidence and testimony from witnesses the detainees cannot confront.

All branches of government are concerned about their legitimacy, and this especially is true of the judicial branch. Courts usually are the least democratic, most inaccessible institutions in a democracy, so legitimacy is critical for them. Public perception is the keystone of legitimacy. Generally speaking, courts have no means by which to enforce their judgments. If the public believes a court is illegitimate, that court cannot function.

John Winger has a mixed history with the military justice system.

If Holder’s aim is to respond to the perceived deficiencies of the military justice system, does deliberately trying Mohammed in civilian, rather than military, court accomplish that goal, or does it admit a view that, when you really need fairness and integrity, military tribunals are not the place to go? If the Attorney General is unable to assuage the critics of military tribunals without changing the nature of those tribunals, are they ever appropriate? In not supporting the system that actually is under meaningful attack, has Holder conceded the critics’ point?

Supporters of military tribunals usually argue that prosecution before those bodies is appropriate when it is important that information required to conduct the proceeding not become public. They also argue that civilian trials of particularly dangerous individuals present a danger to the public not present in military trials. Opponents argue that in camera review (confidential review of evidence by the judge alone, in chambers) can adequately avoid disclosure of secret or confidential information. Extensive use of in camera review, however, may itself undermine the legitimacy of the proceeding. Increased security can reduce the risk of dangerous occurrences at an increased cost.

Holder’s claim that trying Mohammed in civilian court will rehabilitate the judicial system may be dubious, but perhaps there are other reasons for making this selection. If a civilian prosecution in this particular case does restore (both domestic and foreign) public confidence in America’s treatment of detainees, this could lead to some abstract improvement in the country’s international relations. If it quiets calls for better detainee treatment, it could prevent a push to try Mohammed before an international tribunal (the thought being that an American civilian trial, while not as agreeable to proponents of a military trial, would be preferable to process before an international body).

Part of Holder’s defense was that the trial will be quick and, given the overwhelming evidence, the end (a guilty verdict) is strongly implied. This responds to some of his critics’ concerns while undermining his position. If the point of prosecuting in civilian court is to demonstrate that the United States gave Mohammed the most fair trial it could offer, the fact that the outcome is a foregone conclusion that will follow from a quick and easy process suggest otherwise, and these statements from the Attorney General sound like something more than a prosecutor’s confidence in his case.

Republicans on the Senate Judiciary Committee, who did not necessarily share Holder’s background concerns, had other questions for the Attorney General:

How can we be assured that these enemies will be found guilty? Given that criminal courts are now the presumed venue for those captured on the battlefield, will soldiers need to read them their rights at the time of capture? Since you wish to make exceptions on a case-by-case basis to the presumed civil venue, don’t all those captured need to be read their rights and have the opportunity to remain silent? Won’t this venue expose intelligence to our enemies? Can our classified information really be secured? Can we in fact predict how the judge will rule? If these people are brought into the country will they get additional rights under immigration law? What if they claim asylum?

One observer reported that Holder “seemed bewildered in the face of these inquiries.”

As usual, there are arguments in favor of and opposed to the Attorney General’s decision to try Mohammed in civilian court. Their views on this question aside, those interested in consistency nevertheless may find Holder’s rationale, if not his position, unsatisfying.

The comment section below is available to explain your vote in the poll, present other arguments for and against the Attorney General’s decision, and offer alternative courses of action.

Categories: Current, International, Legal, Poll
  1. jjm
    December 18, 2009 at 9:45 pm

    The questions about rights are the telling questions. The WSJ, Republicans, and Holder’s own preemptive apology presuppose that the frame for this debate is one of national security, but the decision to try Mohammed in civilian court is actually justified within a frame of human rights. Holder’s bewilderment is disappointing, but his decision is not.

  2. AD
    December 22, 2009 at 2:24 pm

    Another reader pointed out that defendants are more likely to receive the death penalty in civilian court. I did not know of that difference between civilian and military court sanctioning, but her observation certainly adds another wrinkle to this discussion.

  3. AD
    January 26, 2010 at 9:11 pm

    In the latest news on the Mohammed trial, some New York City politicians are asking the Justice Department to consider alternate trial locations that are outside Manhattan: http://blogs.wsj.com/law/2010/01/26/should-the-ksm-trial-move-be-moved-to-governors-island/.

  4. AD
    February 1, 2010 at 10:46 am

    Update: “The Justice Department is now scrambling to find an ‘alternative’ venue” for the KSM trial. According to the authors of the linked article, the trial will be before a military tribunal at Guantanamo Bay. http://article.nationalreview.com/423438/about-saving-face/bill-burck–dana-perino?page=1

    Contrary to the reader I quoted in my 12/22 comment, these authors assert that “KSM is more likely to be convicted and sentenced to death in a military commission” than in a civilian trial. Id. at 2.

  5. AD
    September 21, 2010 at 12:21 am

    While the Obama administration still “has yet to make a decision on where and when to hold” a trial for Khalid Sheik Mohammed, the Wall Street Journal reports today that the federal government will try Ahmed Khalfan Ghailani, the only Guantanamo Bay prisoner brought to the U.S., in a civilian criminal trial in New York City “for his role in al Qaeda’s bombings of two U.S. embassies in Africa in 1998…that killed more than 200 people, including a dozen Americans.”

    The Ghailani trial, unlike some of the proposals for the Mohammed trial, discussed in the post above, will have relatively more ordinary security measures in place. “The New York Police Department plans some behind-the-scenes security adjustments for Mr. Ghailani’s trial, but there will be no street closures or extra officers assigned to security outside the courthouse,” and “federal officials say the New York Police Department has asked for no financial help to buttress security around the federal courthouse in Lower Manhattan, in contrast to the $200 million a year they had wanted for the proposed trial of Mr. Mohammed, the self-professed mastermind of the Sept. 11, 2001, terrorist attacks.” The apparent reason for this difference is Ghailani’s lower profile, as compared to Mohammad. The article goes on to describe Ghailani:

    “Mr. Ghailani, a Tanzanian, has little of Mr. Mohammed’s notoriety, but counterterrorism officials have long labeled him one of the most dangerous terrorists in U.S. custody. He spent years in the Central Intelligence Agency’s so-called ‘black sites’ as one of about a dozen detainees of ‘high value’ to intelligence officials. U.S. authorities say that Mr. Ghailani, who used a bicycle to ferry bomb parts used in the 1998 bombings in Africa, later rose up through the ranks of al Qaeda.

    “He allegedly became a bodyguard to Osama bin Laden, and a skilled document forger. While working as a bodyguard, he met some of the Sept. 11 hijackers, according to U.S. investigators. Mr. Ghailani was captured in Pakistan in 2004.

    “Though few Americans have heard of Mr. Ghailani, the embassy bombings do have an indirect connection to the Sept. 11 attacks. The morning that two planes crashed into the World Trade Center towers, four convicted al-Qaida associates were sitting about a half-mile away in a federal prison in lower Manhattan. The four had been convicted months earlier for their roles in the embassy attacks, and received life terms when they were sentenced in October 2001.”

    The full article is available here.

    • AD
      November 19, 2010 at 4:23 pm

      Federal prosecutors went one for 285 this week, failing to win convictions against Ahmed Khalfan Ghailani (discussed in the comment above) on all charges with the exception of one count of conspiracy to destroy American embassies in Africa. In what was supposed to be a test case for federal prosecutors in civilian criminal court, a New York jury cleared Ghailani of all but the single conspiracy charge, for which he faces a sentence of twenty years to life.

      This was supposed to be “a slam dunk conviction that would demonstrate the U.S. courts can handle accused terrorists with no trouble.” Echoing Attorney General Eric Holder’s statements about Khalid Sheikh Mohammed (as discussed in the main post, above) in the Ghailani case was Congressman Peter King (R-NY):

      “The president said, and the attorney general, the reason they wanted to have these cases in the civilian court was to show that these courts could get the job done and let the world see what was going to happen. Well, what the world is seeing is that Ghailani was acquitted on 284 counts, including over 200 charges of murder.”

      Setting aside the civilian court versus military tribunal debate (which at least a few commentators think is a false dichotomy here because they don’t think Ghailani’s outcome would have been different before a military tribunal), it is noteworthy that King makes the same assumption as Holder: that the conclusion was, or should have been, foregone. It is not obvious, as King and Holder apparently think, that the outcome in Ghailani’s trial demonstrates a failure of the civilian criminal justice system any more or less than an alternative outcome. That system may have failed here. It might not have. Standing alone, however, the outcome in this case is not evidence for either view. Moreover, the pretrial foregone nature of the outcome in the eyes of officials like Holder and King serves to undercut the legitimacy of the proceeding ex ante, no matter what result.

      More information is available here.

  6. AD
    November 15, 2010 at 2:38 pm

    This weekend saw further developments in the Khalid Sheik Mohammed trial story, in which it now appears that the government won’t bring the alleged 9/11 mastermind to a trial of any variety.

    “The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

    “The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.”

    As I discussed in the post above, Attorney General Eric Holder originally controlled this decision, and apparently independently of the President. (Recall that he originally made the decision to prosecute Mohammed in federal district court in New York City without consulting President Obama.) Now, however, the President has taken back control of the decision process: “The White House has made it clear that President Obama will ultimately make the decision.”

    The full story is available here.

  7. AD
    April 4, 2011 at 12:54 pm

    Today, the Obama administration officially reversed itself, announcing, contrary to its late-2009 plan to try Khalid Sheik Mohammed and the other 9/11 plotters in civilian court and its late-2010 plan to hold Mohammed and the other al-Qaeda operatives in Guantanamo Bay without trials of any kind, that it will hold military trials for the five men accused of planning the 9/11 attacks.

    The story is available here.

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