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American Justice on Trial | The Nation

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American Justice on Trial

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Attorney General Eric Holder's decision to try Khalid Shaikh Mohammed and four alleged co-conspirators for the terrorist attacks of 9/11 in a civilian criminal court has prompted widespread derision from the right. They argue that 9/11 was an act of war carried out by enemy combatants, not civilians, and war crimes must be tried in military courts, not civilian courts; that a civilian trial will provide an unparalleled propaganda platform to Al Qaeda; that the civilian rules of evidence are too demanding for prosecuting the enemy; that a public trial risks disclosing military secrets; and that the trial will make New York City a prime target for Al Qaeda supporters.

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David Cole
David Cole
David Cole (@DavidColeGtown), The Nation's legal affairs correspondent, is the author, most recently, of The Torture...

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The critics are right that trying high-level Al Qaeda members will be an extraordinary challenge. Some of those challenges will be more difficult in a civilian criminal court. But trying KSM anywhere will prove extremely difficult. And it is the actions of the Bush administration that have in large measure forced the Obama administration to try KSM in civilian criminal court.

The 9/11 attacks were an act of war and a heinous crime; the two are not mutually exclusive. The UN and NATO recognized the US right to respond militarily in self-defense. But the perpetrators of 9/11 were criminals, not warriors--they targeted and killed 3,000 innocents. Both acts of terrorism and war crimes (of which targeting civilians is the pre-eminent example) can be tried in civilian federal courts. Indeed, the War Crimes Act provides jurisdiction in civilian courts for just such crimes.

There is undoubtedly a risk that a trial in civilian court could provide a platform for KSM and could disclose military secrets; but so, too, would a military trial. In either setting, the United States would need to conduct as much of the proceeding as possible in public and allow KSM to present a defense--otherwise, the verdict would be widely dismissed as illegitimate. And in both settings, procedures exist to close portions of the trial to the public when necessary to preserve national security. There will be many hard judgment calls--but they would not have been any easier to make in a military courtroom.

The rules of evidence in regular military courts-martial are not in any significant measure less demanding than in civilian courts. While ad hoc military commissions do provide greater leeway--for example, by allowing hearsay--putting someone to death based on hearsay would raise serious constitutional questions in either venue. In any event, convicting KSM, who has openly and eagerly admitted his role in the attacks, should not require hearsay.

A trial at Guantánamo would unquestionably have been more secure. But it is the Bush administration that foreclosed that option. By dismissing the rule of law and the Geneva Conventions as an inconvenient obstacle, exploiting what it thought was a "law-free zone" and subjecting detainees to inhumane treatment and torture, the Bush administration made Guantánamo the best propaganda Al Qaeda could ever have hoped for. Injustice and Guantánamo have become synonymous the world over. If we are to try the 9/11 perpetrators without handing Al Qaeda another propaganda victory, the trial must be fair beyond question. After the taint that the Bush administration's tactics have created, the only place to achieve that is a civilian criminal court.

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