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What's the point of trying KSM in civilian court?

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Holder’s Improvisation Risks Too Much

What’s the point of trying KSM in civilian court?

Some people applauded when Attorney General Holder announced last Friday that Khalid Sheik Mohammed and other architects of the 9/11 attacks would be tried in civilian court in Manhattan. Some called it especially fitting to stage the trial only a few blocks from the site where terrorists wreaked so much death and destruction in 2001. But the Obama administration is taking huge risks to provide this trial with a theatrical setting.

Critics have argued for years that the approach proposed by the Bush administration, trial by military commissions at Guantanamo, would deny essential elements of due process for the accused.  Under prompting from the Supreme Court, the procedural standards for these commissions have been repeatedly tightened.

A new round of safeguards was imposed in a military authorization bill just last month. So, for example, even the military commissions cannot rely on evidence extracted by torture or by "cruel, inhuman or degrading" interrogation methods. But the whole point of military commissions — which the United States has used to try war criminals in all previous major wars — is to afford somewhat more flexible procedures than in civilian criminal trials.

It’s possible, as Holder intimated at his Friday press briefing, that the Justice Department has more than enough evidence to secure convictions in a civilian court, even under the very strict rules of evidence required for civilian jury trials. It’s possible that the greater leniency of military commissions, regarding hear-say evidence or physical evidence brought under a disputed chain of custody, won’t be necessary.

It’s also possible that, as Holder claimed, even a civilian trial judge will make necessary accommodations (such as presentation in closed sessions) to ensure that secret sources of information remain protected.   It’s possible this provide as much security as trial in a specially designed commission proceeding in a more controlled setting.

It’s also possible that an alert and confident trial judge will stop KSM and other defendants from making demagogic speeches in the courtroom, decrying their "torture" in American detention or denouncing American perfidy in distant battle fields. It’s possible all such eruptions will be ruled out of order and suppressed, before they can be recorded in sensational trial clips and recycled on jihadist websites.

It’s even possible that New York City police are so expert at security measures that a sensational trial in lower Manhattan won’t prove an irresistible target for new terror attacks.    Perhaps New York police are so proficient at traffic and crowd control that necessary security measures won’t even add much to current burden of congestion and gridlock in lower Manhattan during the many months of the trial.

But what’s the reward for taking on all these risks? The Obama administration does not claim that trial by military commission would always be improper. At the same press conference, Holder announced that commission trials would still be scheduled for other detainees, including some held in connection with the bombing of the U.S.S. Cole in 1998. The Justice Department will retain the discretion to move defendants between the civilian and the military commission procedures, when the former is less likely to secure conviction.  How does that reassure skeptics about the quality of American justice?

Meanwhile, Holder announced that prosecutors would probably seek the death penalty for the 9/11 planners. Human rights advocates are so strongly opposed to capital punishment that the U.N.’s Criminal Tribunal for Rwanda excluded it even for those convicted of genocide.   Are human rights advocates going to be so impressed by the availability of civilian trials for some terrorist plotters that they forget their decades long objections to capital punishment?

A civilian proceeding is sure to be extremely prolonged, since, among other things, a wider range of procedural and evidentiary questions can be appealed. Either civilian judges treat these cases differently or they will linger for years — and appeals of the capital sentences (if they get that far) will linger for years more. Won’t the delays encourage more questions about the quality of American justice and ensure the questioning goes on interminably?

If the point is to show that the United States takes the opinions of foreign critics so seriously, why was this new policy announced on a Friday afternoon, when the President was in Japan and the whole thing could be presented as a technical decision by Justice Department attorneys?   If the new policy is such a fine idea, why hasn’t the President taken direct responsibility for it?

If there is any principle behind this new policy, it’s not one the Obama administration has actually articulated as a binding commitment for future cases.   After months of deliberation, the administration still seems to be improvising.
 
Perhaps it is trusting that if anything terrible happens in the new trials, it can blame the Bush administration for getting these terrorists into American custody in the first place. But even a compliant media is not likely to forget that Eric Holder — who implemented the Marc Rich pardon at Bill Clinton’s behest — is not a man who improvises on his own.

Written By

Jeremy Rabkin is a professor of law at George Mason University in Arlington, Virginia.

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