By Mat Trachok, HLS 2012 Staff Writer
There has been considerable debate over the Obama Administration’s decision to try Khalid Shaikh Mohammed (KSM) in a Manhattan federal court. NSJ provides a brief overview of the recent opinion pieces on the topic.
Many, especially commentators on the political right, have been critical of the decision to try KSM in New York. For instance, in his column in the Wall Street Journal, Bret Stephens argues that KSM will turn the trial into a “circus” and use it as a platform from which to advance his ideology. Even worse, Stephens argues, KSM will likely try to put the U.S. government on trial for torture—a considerable threat, in Stephens’ opinion, considering that many New York jurors may find KSM a more credible witness than Bush Administration officials. Stephens is also concerned about the long period during which New York City will have to be on a perpetual state of high alert.
Columnist William McGurn agrees, arguing that because terrorists ignore both the laws of civil society and the laws of war, it is perverse to provide them more protection than we would provide a soldier who fought in accordance with the rules of war. He further argues that providing KSM with constitutional protections that we would not provide to an enemy combatant will give terrorists an incentive to attack civilians rather than military forces. Finally, McGurn quotes Andrew McCarthy—the Assistant United States Attorney who prosecuted Omar Abdel Rahman for the 1993 bombing of the World Trade Center—who believes that the trial will make New York City the target for more terrorist attacks, will force the government to disclose sensitive intelligence, and may lead to KSM’s acquittal.
The concerns voiced by Stephens and McGurn have been echoed by former New York Mayor Rudy Giuliani, former Alaska Governor Sarah Palin, Rep. Pete Hoekstra, R-Mich., John Yoo, among others.
In an op-ed in the New York Times, Steven Simon, a fellow at the Council on Foreign Relations, responds broadly to these concerns by pointing out that the Obama Administration’s counterterrorism team is largely the same as Bush’s in terms of personnel. Moreover, he contends, the Bush-Obama counterterrorism team generally agrees that it is best to fight terrorism through law enforcement whenever possible.
In response to concerns that KSM will be acquitted, Simon argues that an acquittal is highly unlikely. According to Simon, KSM has already confessed to the crime, and no terrorist tried in New York has ever been acquitted. Similarly, in an article in STRATFOR, Ben West and Fred Burton argue that KSM will likely not be acquitted because the staff of the U.S. Attorney’s Office for the Southern District of New York has considerable knowledge and expertise prosecuting terror cases. Finally, in an op-ed in the Washington Post, Jim Comey and Jack Goldsmith, who both served in the Bush Administration Justice Department, argue that trying terrorists in civilian courts has usually been successful. They point out that the Bush Administration used civilian courts to successfully convict dozens of terrorists, who are currently serving lifetime terms in Supermax prisons.
Some have also argued that it is unlikely that much classified evidence will be released in the course of the trial. In an editorial in The Philadelphia Inquirer, Samuel W. Buell, a former federal prosecutor, insists that prosecutors would never have pursued this case unless they were certain that there is enough unclassified evidence to convict KSM. Buell also argues that, because any intelligence used in this trial would be almost ten years old, it would be useless to terrorist organizations.
In response to concerns that KSM will use the trial as a propaganda platform, Dahlia Lithwick argues in a recent Slate article that the trial will serve as propaganda only for the United States and its legal system. Similarly, Simon argues that the trial will benefit the United States, because it will methodically present to the world the horrors of 9/11, much as the Nuremburg and Eichmann trials revealed the horrors of genocide. Moreover, Simon contends, highlighting the transparency of our judicial system will strengthen America’s reputation, at at time when al-Qaeda’s reputation is crumbling in the Muslim world.
Several writers have also argued that concerns over safety are unfounded. West and Burton point out that the U.S. Marshals Service Special Operations Group has considerable experience providing security for terror trials. Moreover, they note that the New York City Police Department has enough training and manpower to provide effective security. West and Burton, along with Comey and Goldsmith, also predict that the trial will likely not increase the risk of a terrorist attack in New York City. Indeed, it already is and will remain a primary target for terrorists for many reasons other than the upcoming trial. They also point out that none of New York’s other high-profile terrorism trials has ever resulted in a retaliatory terrorist attack. Finally, Comey and Goldsmith argue that our military, intelligence, and law enforcement communities have prevented many terrorist attacks in New York City and will continue to protect the city during the trial.
In response to claims that it would be better to try KSM in a military commission than in a civilian court, Comey and Goldsmith contend that military commissions are not as effective at trying terrorists as many believe. They insist that military commissions possess many of the same flaws as civilian trials. In addition, they contend that the military commission system’s track record since November 2001 has not been stellar: it has secured only three convictions in eight years, and the only person tried by a full commission—Osama bin Laden’s driver—received a sentence that was probably shorter than what he would have received from a federal judge.
No one characterizes trying KSM in a civilian court as a perfect solution. Even those who support the decision have voiced significant concerns about the trial. For instance, Buell argues that the government will be unable to avoid the issue of torture during the trial. He believes that KSM will almost certainly raise the defense of “outrageous government misconduct.” This defense prohibits prosecution of any defendant—no matter how guilty—who was treated by the government in a way that “shocks the conscience.” According to Buell, KSM is in a strong position to raise this defense, as he was repeatedly waterboarded. Buell asserts that the court will only be able to avoid dismissing the prosecution by eliminating the outrageous misconduct defense. When the court eliminates the defense, he continues, the case will almost certainly be appealed to the Supreme Court, which will be forced to confront and consider the government’s use of torture.
In an article in Slate, David Feige, a former public defender, argues that, although trying KSM in a civilian court is better than any alternative, it will create bad law. Feige predicts that KSM’s defense attorneys will be forced to engage in considerable legal maneuvering that will ultimately be futile. Perhaps most importantly, no judge in the country would acquit KSM. Therefore, the court will be forced to deny these defenses or strip them of any significance. As the case is appealed, he argues, such court actions will become precedents that will harm the interests of future criminal defendants.
NSJ will continue to cover the trial of KSM and other terrorists as new developments unfold.