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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.
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.