The announcement that Khaleid Shaikh Mohammed and other terrorists affiliated with al-Qaeda will be tried in New York City civilian court drew immediate controversy
This initiative has long been promised by President Obama, and is a sharp departure from Bush-era practices of trying terror suspects in military tribunals or forgoing trials altogether. The
trial promises to be a major test for the civilian legal system, raising concerns that state secrets could be exposed during the trial. Supporters nevertheless contend it is a crucial step for the rule of law. What does
it mean when the 9/11 "mastermind" goes to court?
- Easier To Try Financiers Marcy Wheeler suggests
that a civilian trial would make it easier to charge non-combatants who
lend "material support" to terrorists, even if we can't prove those
people knew exactly what they were financing. Civilian trials of
terrorist would "give wide leeway to prosecutors to charge those for
whom intent to commit terrorism may not be easy to prove." Wheeler
cites legal precedent that "material support charges were not a
violation of the law of war," which means such financiers would be much
tougher to charge in a military tribunal.
Other Countries Try Terrorists Glenn Greenwald notes
that many countries publicly try terrorists. "People in capitals all
over the world have hosted trials of high-level
terrorist suspects using their normal justice system. They didn't
allow fear to drive them to build island-prisons or create special
commissions to depart from their rules of justice." He points to
terrorist trials in Spain, Britain, Indonesia, India and Israel. "It's
only America's Right that is too scared of the Terrorists -- or
which exploits the fears of their followers -- to insist that no
regular trials can be held and that 'the safety and security of
the American people' mean that we cannot even have them in our country
to give them trials." He says of critics of an open trial, "Some are
scared themselves; some are both scared and eager to exploit
fear to justify tyrannical policies; and some are being largely
exploitative. Whatever the true motives of each, fear is a driving
fuel of their political movement."
- Risks Releasing State Secrets John Yoo,
whose work in the Bush-era Department of Justice helped clear the way
for waterboarding and wiretapping, sums up in the Wall Street Journal
concerns that an open trial could compromise state secrets.
"Prosecutors will be forced to reveal U.S. intelligence on KSM, the
methods and sources for acquiring its information, and his
relationships to fellow al Qaeda operatives. The information will
enable al Qaeda to drop plans and personnel whose cover is blown. It
will enable it to detect our means of intelligence-gathering, and to
push forward into areas we know nothing about." He concludes, "military
commissions could guarantee a fair trial while protecting national
security secrets from excessive exposure"
- 'Restoring Moral High Ground' CNN's Paul Cruickshank argues,
as do many supporters of open trials, that they would improve troubled
image abroad. He focuses on the possibility of a trial of Obama bin
Laden, which would likely be even riskier than Mohammed's impending
trial. "While the forthcoming trial of Khalid Sheikh Mohammed and
figures allegedly involved in plotting the 9/11 attacks in New York
will be helpful, nothing would help more than if Osama bin Laden were
captured, afforded full due process and put on trial. It would
be nothing short of a watershed moment, doing much to restore the
public's confidence in American institutions and the rule of law after
years of being told that they were too quaint for the challenges of a
new era. And it would go a long way, too, in restoring the moral high
ground for the United States in the court of global opinion."
- Criminals Not Warriors Matthew Yglesias advocates
for treating terrorists as criminals, not soldiers, by trying them in
civilian court. "In political terms, the right likes the war idea
because it involves
taking terrorism more “seriously.” But in doing so, you partake of way
too much of the terrorists’ narrative about themselves. It’s their
conceit, after all, that blowing up a bomb in a train station and
killing a few hundred random commuters is an act of war," he writes. "A
lot of people in the world are interested in glory, and willing to
take serious risks with their lives for its sake. Insofar as possible,
we want to drain anti-American violence of the aura of glory. And that
means by-and-large treating its perpetrators like criminals."
Want to add to this story? Let us know in comments
or send an email to the author at
mfisher at theatlantic dot com.
You can share ideas for stories on the Open Wire.