Khalid Shaikh Mohammed is unlikely to go free. The onetime al Qaeda operative has confessed on multiple occasions to organizing the worst terrorist attacks in modern times. If anything, he's prone to overstating his own importance in the terrorist organization behind the plot. But the Obama administration's decision to try Mohammed and four others in civilian court has critics outraged at the possibility that KSM, as he is known, will get off scot-free.
That debate is just one aspect of a larger question that for years has been at the center of U.S. policy. What is the best way to classify and combat international terrorism? Should terrorist attacks be considered acts of war warranting a military response or as acts of criminality falling under the purview of the civilian justice system? President Obama has repeatedly said, and even campaigned on the idea, that the criminal court system is both an appropriate and sufficient venue for dealing with many terrorist suspects. The Bush administration famously christened the effort a "war on terrorism" and jailed suspects in military and CIA prisons, sometimes for years on end, without charging them with a crime. But it also tried Zacarias Moussaoui, the "20th hijacker" in the 9/11 plot, in an Alexandria, Va., federal courthouse. He was sentenced to life in prison for conspiracy. The Bush administration also successfully prosecuted "American Taliban" John Walker Lindh, "dirty bomber" Jose Padilla, and "shoe bomber" Richard Reid in civilian courts.
Since Obama took office 10 months ago, the Justice Department has been deciding which suspected terrorists will be handled by the military and which will face civilian trials, as the prison at Guantánamo Bay continues to empty at Obama's direction. It's a process that Justice officials now concede will not meet the January deadline set by the president. As for Mohammed and four other men accused of conspiring to commit the largest terrorist attack on U.S. soil, they'll leave Cuba to have their fate decided just blocks from ground zero in a courthouse in Lower Manhattan.
The decision to try them, however, has proved one of the most controversial of the Obama presidency, drawing criticism from liberals and conservatives alike. Attorney General Eric Holder was grilled at a Senate hearing last week about the shift of Mohammed from military custody to federal court. One Republican called it a "dangerous, misguided, and unnecessary" decision. Asked if he could guarantee that Mohammed would be convicted, Holder said he had told prosecutors that "failure is not an option." Holder had even less to say when asked why only some of the suspects held at Gitmo received a civilian trial and not others. Sitting in the crowd behind the nation's top lawyer, meanwhile, family members of some of those killed on 9/11 held photographs of their slain loved ones in silent opposition to the Justice Department's decision.
Whatever the outcome of the trial (a process that experts predict will last more than a year), the defendants aren't likely to find it a lenient venue. More than 300 international and domestic terrorists, like Moussaoui, are currently behind bars after federal courts convicted them of offenses that include the 1993 World Trade Center bombing and the 1998 attacks on U.S. embassies in Kenya and Tanzania. Military commissions, Holder reminded Congress, have convicted only three. "This notion that somehow we have to be fearful, that these terrorists possess some special powers that prevent us from presenting evidence against them, locking them up, and exacting swift justice, I think that has been a fundamental mistake," Obama said in an interview with CNN this month.
Politics aside, there are several potential problems with a federal prosecution. One of the most vexing is the federal rules of evidence. In normal criminal proceedings, defendants have a right to examine and challenge the evidence that is presented against them, including challenging the manner in which it was obtained and in which it has been preserved, the so-called chain of custody. That's a particular problem with international terrorism cases, where some of the evidence may have been obtained through clandestine methods or in the heat of battle, where standard evidentiary procedure does not exist. Mohammed, for instance, was arrested in Rawalpindi, Pakistan, and establishing a chain of custody for evidence may be difficult.
Another strike against civilian courts, critics contend, is the possibility that the proceedings will expose classified information to the public and, as a result, to al Qaeda. Holder and supporters counter that there is a long history of using classified materials in public trials while still protecting national security. Legal analysts note that determining which classified information is eligible for use in a trial is often the subject of lengthy legal fights, which happened during the Moussaoui trial.
Also complicating the admission of evidence at a trial in a civilian court is the fact that Mohammed was waterboarded while in U.S. custody. In 2003, he was subjected to the simulated drowning procedure, which Holder has called torture, more than 180 times during a 30-day period. Experts say that any evidence obtained as a result of such treatment would likely not surface at a trial.
The families of the victims of 9/11, like the American public, are divided over the decision to hold civilian trials. Polls show New Yorkers slightly in favor of them, by 45 percent to 41 percent, with the remaining 14 percent undecided. But critics contend that the proceedings will give Mohammed and his coconspirators a soapbox from which to spread al Qaeda's message and make a farce of the proceedings. Alice Hoagland, whose son died on Flight 93, confronted a somber attorney general last week in the crowded Senate Judiciary Committee room after his testimony amid a slew of television cameras. "I am afraid that the theatrics will take over at this point," she said.
Holder had earlier dismissed those concerns. "If Khalid Sheikh Mohammed makes the same statements he made in his military commission proceedings, I have every confidence the nation and the world will see him for the coward he is," he told senators. "I'm not scared of what Khalid Sheikh Mohammed will have to say at trial, and no one else needs to be either."
In the end, the biggest problem for Holder and the Obama administration is choosing which forum, civilian trial or military commission, is appropriate for each suspected terrorist. Holder struggled to explain to senators how the decisions were made. Glen Greenwald, a constitutional lawyer and influential blogger for Salon, argues that Holder "can't possibly defend the sanctity of jury trials . . . since he's the same person who is simultaneously denying trials to Guantánamo detainees by sending them to military commissions and even explicitly promising that some of them will be held without charges of any kind." Critics also note that the trials may be less fair than they at first appear. In July, the Pentagon's general counsel, Jeh Johnson, told senators that even if suspected terrorists are acquitted in court, the government has the authority to continue imprisoning them.
- See the members of Obama's inner circle.