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Trying Question

Why putting Khalid Sheikh Mohammed on trial downtown is the right thing for the U.S.—and the city. (And if Rudy were still U.S. prosecutor, he’d agree.)

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Illustration by Jack Unruh  

The decision by U.S. Attorney General Eric Holder to send Khalid Sheikh Mohammed, the self-proclaimed mastermind of the September 11 terrorist attacks, and four of his co-conspirators to trial in federal criminal court in New York, rather than before a military commission in Guantánamo Bay, is loaded with complex legal, ethical, and security issues. For anyone who lost a loved one on 9/11, or was downtown that day, the prospect of a public trial also comes with a painful emotional layer. It isn’t an easy call.

But so far Holder’s boss, President Barack Obama, has done a lousy job justifying why he made the right decision. Granted, Obama has been a little busy—he was in Tokyo to begin an eight-day Asian trip when Holder made the announcement. Maybe leaving the attorney general out there by himself to explain the reasoning is supposed to make the decision look apolitical. Mostly, however, the lack of salesmanship has allowed enraged critics to dominate the discussion. With two years, at least, until the start of an actual trial, we’ll be hearing a lot more of the arguments against holding a criminal proceeding ten blocks from ground zero, with Rudy Giuliani as the most prominent anti-trial advocate. (A digression: Would U.S. Attorney Rudy have turned down the case? Not likely.) Here’s how Obama and his allies can rebut the critics’ main points—not in the interest of winning the political argument, but to address legitimate worries and buttress the importance of the rule of law.

Trying the case in federal court, especially in Manhattan, will be expensive.
True. Fortifying Foley Square for six months to a year will indeed be costly. Last week, Senator Chuck Schumer got Holder to agree to push for federal reimbursement. But plenty of things are expensive—like running the prison at Guantánamo, which costs roughly $118 million a year. Our judicial system doesn’t bring only the cheap trials to court.

It will increase the danger to the city.
Perhaps. Maybe Al Qaeda will try to make a murderous statement timed to the trial. But it has a history of launching attacks when institutions let their guard down, not when security forces are at their highest-alert levels. More likely, some freelance lunatic will be drawn to the spotlight, and any violent threat is to be taken seriously. Yet the city is, unfortunately, a constant, highly attractive target right now—and Mike Bloomberg, Ray Kelly, and the Feds have done a heroic job thwarting terrorism since 2001. No one is perfect, but even Giuliani admits he trusts the NYPD to protect the city during any trial.

Obama is trying to score political points.
Possibly, but the politically easier (and cynical) move would have been allowing Mohammed to remain in military custody. The president wouldn’t have risked antagonizing the centrist voters that Democrats need. Sure, it’s a political decision—in the sense that it’s consistent with what Obama said he’d do when running for president. And Congress has repeatedly passed laws making terrorism a federal crime.

These guys are war criminals. Their cases belong in front of military commissions.
To me, the most difficult question to resolve definitively. Clearly Al Qaeda is an organized entity with an avowed agenda to destroy the U.S. and establish a primitive theocracy to dominate the world. And there is a long, bloody record of its assaults. Yet for all its potency, and the grandiosity of its aims, Al Qaeda is closer to a gang of thugs than an army. Giuliani talks frequently about not giving Mohammed what he wants by bringing him to New York for trial; well, why allow the members of Al Qaeda to define themselves as “soldiers” simply because they’ve decided to declare war on us? New York lawyer Andy Patel would seem to be an unlikely booster of the American military; Patel was one of the defense lawyers for accused “dirty bomber” Jose Padilla who forced the Bush administration to drop the designation of Padilla as an enemy combatant. Padilla was instead convicted, by a federal jury, of aiding terrorists. “I had a lot of exposure to the military on that case, and they make you proud to be an American,” Patel says. “Do we really want to equate the 9/11 defendants with the American military? To be a soldier is an extraordinary thing, and we need to respect that. If we let others make the claim that they’re fighting for a noble cause and aren’t just a bunch of yahoos running around, we’re granting them extraordinary power.”

Mohammed will make a mockery of the trial and use it as a propaganda platform.
Go ahead, let him try. As a practical matter, federal judges don’t generally allow speechifying and tantrums. But if Mohammed wants to advertise Al Qaeda’s views, they will be exposed for the tangle of dead-end oppression and hatred of modernity that they really are.


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