Trying Question

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.

Perhaps what critics are truly worried about is Mohammed’s defense trying to put the focus on American interrogation tactics. Some of those methods are indeed embarrassing, and graphic descriptions of torture could inflame those who despise us. But those people were going to despise us anyway. The war on terror is as much a war for hearts and minds as it is a war of military might, and there are millions of people around the world who haven’t chosen sides. What deserves exposure is America’s system of openness and freedom—imperfect, to be sure, but vastly superior to Al Qaeda’s perversion of Islam. Denying the facts of a dark period in American history strengthens our enemies.

National-security secrets could be disclosed.
David Kelley is no weak-kneed liberal. When the first plane hit the World Trade Center, Kelley went from his desk in the U.S. Attorney’s office to immediately begin the investigation. He saw the second plane hit and was buried in debris when the first tower collapsed. Kelley led the investigation into the bombing of the U.S.S. Cole, and in 1997 he won the conviction of Ramzi Yousef, one of the planners of the first bombing of the World Trade Center (and Mohammed’s nephew). Kelley had to sort through similar questions about how sensitive information could be used against Yousef. “There are a lot of people out there screaming and hollering about this, and they should be quiet,” Kelley says. “They haven’t evaluated what evidence Holder has, or what the prosecution is going to use in the trial. So none of us know what we’re talking about. What I do know is that there are procedures in place to protect classified information. And I am by no means callous about this—we do need to be careful—but who’s fooling who here? Al Qaeda already knows a lot of this stuff that’s going to come out in court.”

Khalid Sheikh Mohammed could win.
It wouldn’t be a real trial unless that chance existed. But you need to believe that Holder is an idiot and is bringing the case to court without a mountain of damning, untainted evidence; or that the judicial system is so twisted and corrupt, as some right-wingers argue, that it actually wants Mohammed to win; or that a jury of twelve rational New Yorkers can’t possibly be found in order to believe Mohammed has any significant hope of being acquitted. “From what the A.G. has told me, they aren’t going to use any information from interrogations,” one terrorism expert says. “And nobody tortured KSM to brag about his role when he talked to Al Jazeera.”

As a senior FBI agent, Pat D’Amuro chased the Cole bombers; D’Amuro learned more about Mohammed as the head of the Bureau’s New York office. He had the foresight, in 2001, to understand what the CIA’s push for “enhanced interrogation” tactics would mean, and he argued, successfully, to keep FBI agents out of the dirty work. He now runs Giuliani Security & Safety and believes a federal trial is a mistake. “If the endgame all along was trying people in the federal-court system, then fine,” D’Amuro says. “But now you’ve bastardized the system and you’re going to go back and bring it full circle? The tribunals were made legal, why not use them? You’re taking a risk that’s not necessary.” But does D’Amuro believe there’s enough non-torture evidence to convict Mohammed? “Yes,” he says. “But it’s up to a jury to convict.”

Living with the remote chance of acquittal means we live in a country that honors the standards that set us apart from other societies. For seven years, our public-policy reaction to 9/11 was driven by hysteria and fear—some of it manipulated, of course, to achieve political ends. Obama won the presidency a year ago for many reasons, but one of them was his vow to operate national-security policy according to the fundamental principles of American values, and according to reason instead of emotion. We don’t disappear people in this country, and we aren’t scared of giving an evil man his day in court. Especially in New York.

E-mail: Chris_Smith@nymag.com.

Trying Question