US Terror Trial Decision Sparks Opposition, Legal Questions
Jim Malone | Washington 25 November 2009
The Obama administration's decision to try five alleged plotters of the 2001 terrorist attacks on the United States in the civilian court system has sparked angry opposition from congressional Republicans, and many questions from legal analysts.
U.S. Attorney General Eric Holder said it was his toughest decision to date - to try alleged September 11th terror mastermind Khalid Sheikh Mohammed and four others in federal court, rather than through a military commission.
"Nothing can bring back those loved ones," he said. "But they deserve the opportunity to see the alleged plotters of those attacks held accountable in open court, an opportunity that has too long been delayed."
Among the early critics was Michael Mukasey, a former federal judge who has presided at a major terrorism trial and who served as attorney general at end of the Bush administration.
"A decision that I consider to be not only be unwise, but in fact based on a refusal to face the fact that what we are involved with here is a war with people who follow a religiously-based ideology that calls on them to kill us, and to return instead to the mindset that prevailed before September 11, 2001," he said.
Mukasey and other critics, including former Vice President Dick Cheney, argue that the decision to try the 9/11 suspects in civilian court is the latest in a series of steps by the Obama administration that calls into question its commitment to fight the war on terror.
Attorney General Holder recently defended his decision in a recent hearing of the Senate Judiciary Committee.
"I have every confidence that the nation and the world will see him for the coward that he is," he added. "I'm not scared of what Khalid Sheikh Mohammed has to say at trial, and no one else needs to be afraid either."
That did not satisfy Senate Republicans like Lindsey Graham of South Carolina. He says so-called enemy combatants, foreign fighters captured on overseas battlefields, should not be granted the protections of the U.S. civilian legal system.
"Under domestic criminal law, the moment the person is in the hands of the United States government, they are entitled to be told they have a right to a lawyer and can remain silent," he explained. "And if we go down that road, we are going to make this country less safe. That is my problem with what you have done."
Republicans cite recent public opinion polls that generally show Americans would prefer to try the alleged terrorists in military commissions, where the rules of evidence favor the prosecution.
But many Democrats have rallied to Holder's defense, arguing that a federal court trial for the alleged 9/11 plotters will show the world that the United States has faith in its civilian legal institutions and the rule of law.
This is Senator Russ Feingold of Wisconsin speaking to Eric Holder during last week's Senate Judiciary Committee hearing:
"[Attorney] General, I want to commend you for your decision to try Khalid Sheikh Mohammed and other 9/11 plotters in federal court," he said. "It is about time that we bring these criminals to justice, and your decision shows the world that this country stands firmly behind its legal system and the Constitution."
Some analysts have expressed concern that holding the trial in New York City, the site of the 2001 attack on the World Trade Center, will once again make the city a prime terrorist target.
Legal experts also predict that defense counsel for Mohammed and the other defendants will raise the issue of their treatment in captivity at the U.S. Naval base at Guantanamo Bay, Cuba. Mohammed, for example, was subject to a simulated drowning technique known as water boarding 183 times.
Charles Stimson served as Deputy Assistant Defense Secretary for Detainee Affairs during the Bush administration.
He notes that Khalid Sheikh Mohammed has already boasted about his role as the mastermind of the 9/11 attacks during military commission proceedings at Guantanamo Bay.
Stimson says he worries that a civilian trial could become a circus if Mohammed tries to turn it into a propaganda event for al-Qaida.
"I have no doubt, as a former federal prosecutor, that he can and will get a fair trial in federal court," he said. "I don't think anyone disputes that. Hasn't he been offering and begging to plead guilty in his military commissions trial for a long time? Wouldn't that be sure and swift justice since the plea of guilty is the strongest form of proof known to the law?"
Some legal experts continue to raise questions about the validity of the military commissions, even though the Obama administration and Congress have taken steps to give defendants more rights in that process.
There is little doubt that a civilian trial will be a lengthy process. One former federal prosecutor involved in past terrorism cases predicts that it is likely that the 9/11 terror trial will not even begin for another two years.
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