Trying Terrorists in Civilian Courtrooms

by Ronald Rychlak - December 2, 2009

Reprinted with permission.

Attorney General Eric Holder recently announced the Obama administration's decision to try the self-confessed 9/11 mastermind, Khalid Sheikh Mohammed (KSM), and his four alleged co-conspirators in a civilian New York criminal court. Purportedly, this is being done to demonstrate to the world that the American judicial system is just, and that the United States will treat anyone, even our worst enemies, fairly. Douglas Muzzio, a professor of public affairs at Baruch College in New York, explained: "If this is a clash of cultures, a clash of civilizations, whatever it is, the hallmark of our system is our legal system, so let's show the world what we are all about."

Critics of the New York trials suggest that the Obama administration really wants to try the Bush administration and its harsh treatment of terror suspects. One purpose sounds high-minded; the other seems purely political. There's probably some truth to each explanation. Neither of them, however, justifies the planned trials.

Trials are about deciding guilt and innocence, not sending a message or resolving difficult social issues. When President Obama came to office, KSM was ready to go before a military commission, plead guilty, and be executed. Now, Scott Fenstermaker, the lawyer for accused terrorist Ali Abd al-Aziz Ali, said the men would not deny their role in the 2001 attacks but "would explain what happened and why they did it." In other words, they will try to show why the attack on the United States was justified.

In giving KSM a civilian trial in the heart of Manhattan, the administration is giving him the ultimate soapbox from which to proclaim the glory of jihad and the criminality of America. We can expect KSM to portray himself as a hero and martyr who has endured torture and injustice at the hands of the U.S. government in service to Islam. Need we be reminded that Hitler propelled himself to national prominence in Germany when he was tried for the failed Beer Hall Putsch?

The trial will certainly have the world's attention. Consider, however, all of the issues that it will involve:

1. The president already said that the defendants will be convicted. Attorney General Holder said essentially the same thing when he was questioned by the Senate Judiciary Committee. Does this taint the trial? More importantly, if the administration undermines the presumption of innocence, what message does that send to the world? Isn't the demonstration of fairness the "legitimate" reason for holding this trial in the first place?

2. If the defendants are convicted and given the death sentence, would it enhance their standing among radical Islamists? If they are acquitted, will we just let them go? Probably not. The Obama administration has continued the policy of indefinitely detaining, without charge, individuals it deems too dangerous to be set free. Wouldn't the same apply to these men, even if they were acquitted?

3. If a fair jury could be found anywhere in the United States, it would not be in New York. Holder said a careful examination of each prospective juror by the trial judge would ensure a fair trial, but no defense lawyer worth his or her salt would let this issue go (if, that is, the trial is truly about guilt and innocence instead of sending a message).

4. The jury will have to be sequestered; that is an enormous imposition on the jurors and the court system.

5. The jurors' identities will have to be protected lest they face intimidation or retaliation.

6. The judge will be at risk for the rest of his or her life. So will the prosecutors and possibly the defense attorneys, too.

7. Security in and around the courtroom will be a nightmare.

8. One can debate what level of force may legitimately be used in military interrogations, but by criminal-court standards, KSM was absolutely manhandled. None of his out-of-court statements will be admissible.

9. It is unlikely that much other evidence was obtained in compliance with the fourth amendment. As such, most of it should be excluded.

10. If KSM effectively uses his platform, the trial might end up encouraging more acts of terrorism. It may also teach terrorists worldwide about our counter-terrorism techniques. That actually happened during the civilian trial of the 1993 World Trade Center bombers.

There are other issues as well. On the same day that Holder announced KSM's trial in New York, the administration designated five other Guantánamo detainees to stand trial before military commissions. Where is the consistency?

Christians and all people of good will are right to be concerned about our legal system, the way we treat prisoners, and how we wage war. The place to debate such issues, however, is in the political arena, not in a courtroom. Using the legal process to send messages about political decisions corrupts the legal process and denies the parties (on both sides) a fair trial even more surely than would a military tribunal. The attorneys for KSM and the other defendants have recognized this. They have no compunction about using the trial to make a political statement, because they know that the U.S. government is doing that very same thing.

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).