Monday, November 23, 2009

Why the New York Terror Trials Are a Bad Idea

Attorney-General Holder recently announced plans to move the trials of several Guantanamo detainees, among them Khalid Sheikh Mohammed, to New York City. The plan has drawn opposition from both sides of the political spectrum and is a bad idea for several reasons.

Most obviously, the show trial is a bad idea because it is unnecessary. The detainees have already admitted guilt. KSM in particular has repeatedly confessed his role in planning the 9/11 attacks and has indicated his desire to be executed so that he can become a martyr [1 ]. As radio talk show host and author Michael Medved put it, “Normally I don’t agree with giving in to the demands of terrorists, but when they demand to be executed, that is one demand that we should give in to” [2].

The detainees were set to receive fair trials from military tribunal. A military trial would have saved the government millions of dollars. A criminal trial in the civilian justice system will be expensive, especially in light of the runaway spending habits the Obama Administration has already exhibited. A civilian trial will mean that the government must pay for civilian lawyers, court costs, and security in expensive New York City. A military trial could have been conducted on a secure military base with military lawyers at minimal cost.

Security is also a concern. It will be very difficult to provide security for the courthouse and for all the people involved in the trials. Securing the area will likely involve a huge disruption of buildings and streets surrounding the courthouse as well. In an era when one terror plot after another is being discovered – or carried out – a huge, well publicized trial will provide a tempting target for both homegrown radicals and international terrorists.

A show trial will necessarily be covered in-depth by the media. This media coverage will grant the defendents a golden opportunity to espouse their radical anti-American views and claim abuse at the hands of the United States. Likely defense strategies will involve claims of torture and attacks on US foreign policy. The defendents have already announced their plans to plead not guilty in order to justify their actions as a reasonable response to American actions abroad [3]. This publicity can do nothing but harm the United States and will likely serve to radicalize more Muslims and inspire them to carry on the jihad. Justice does not require that the US give terrorists a media soapbox from which to address the world.

There is also a question of jurisdiction. These detainees are not US citizens, they were not arrested in the United States, and their crimes were not committed in the United States. Most of the detainees were captured in Afghanistan. KSM was captured in Pakistan. None of the detainees were directly involved in the 9/11 terror attacks or any other attacks on US soil. Instead, they planned and supported attacks on the US and other countries from bases in other countries.

As noncitizens, the detainees are not entitled to the protections of the US Constitution. As illegal combatants who were not members of an organized national army, they are entitled to only limited protection under the Geneva Convention. To move military prisoners from a war into the civilian criminal justice system is unprecedented. In World War II, prison camps in the continental United States housed German and Italian prisoners-of-war. These POWs were not granted habeas corpus and were not allowed to challenge their detention in US courts.

Additionally, since these prisoners of the War on Terror were captured by the military, the standard of proof of guilt is different that what is required for arrest by a civilian police officer. For example, a defense attorney might object because soldiers never advised the detainees of their Miranda rights. It may also be difficult for a prosecutor to show enough evidence to a jury to assure a conviction without compromising intelligence sources. Rules are very different for soldiers and police officers because they serve different roles.

Along the same lines, if US soldiers are required to abide by civilian standards in order to protect prosecution in future cases, the result will be more dead soldiers and more terror attacks. Applying peacetime civilian standards to soldiers in combat will mean that more terrorists go free. If more terrorists remain on the loose, it means that they will be free to attack US soldiers abroad or civilian targets here at home. It might also mean that US forces are less likely to take prisoners in the future if it becomes apparent that lawyers are intent on forcing the release of terrorists based on legal technicalities.

In some cases, civilian criminal courts are an appropriate venue for trying terrorists. For example, when a terrorist is a US citizen he has a constitutional right to a trial by jury. Likewise, a foreign terrorist who is apprehended within the US by civilian authorities can correctly processed in the civilian criminal justice system. However, it is gross mistake to place foreign terrorists and guerillas, captured abroad, into a criminal justice system better suited to dealing with common murderers and burglars.

Attorney-General Holder and President Obama’s plan for show trials in New York City is a bad idea on many levels. It will be expensive, dangerous and embarassing to the United States. It will waste millions of dollars in a time when our national treasury is already depleted. It will attract terrorists to the cameras like moths to a flame. It will provide a means for the terrorists on trial to broadcast their views to the world and recruit more disaffected Muslims. Finally, it is legally questionable and completely unnecessary. It grants unprecedented rights to illegal combatants and sets a frightening precedent for how the US will handle terrorist trials in the future. Such decisions by President Obama and the members of his administration cannot help but have a negative affect on the prosecution of the War on Terror and consequently make us all less safe.

November 23, 2009
Enroute to White Plains NY
2. As heard on the Michael Medved radio show. Available on podcast at
3. “Lawyer: 9/11 Suspects Won’t Deny Roles,” USA Today, November 23, 2009.

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