There are many arguments floating around, including the one I touched on earlier this week, against trying 9/11 suspects in New York. Let’s examine them.
1) It signals the end of the War on Terror.
As John Yoo writes in the Wall Street Journal, the decision “is in effect a declaration that this nation is no longer at war.” As Steven Simon writes in the New York Times, though, this is a straw man argument. Simon notes:
In truth, the White House’s counterterrorism team is composed largely of the same professionals who battled terrorists under President George W. Bush. They are generally in sync with the White House’s insistence on a strategy that uses law enforcement where appropriate and military force in places, like Afghanistan, where conspirators can’t be arrested by federal agents driving Fords.
Contrary to Yoo’s assertion, the Obama Administration’s approach is a “law enforcement/military force” hybrid. Yoo, after asserting that this track indicates that the U.S. is no longer at war, actually admits that the approach is a hybrid, and then criticizes it for being so, bringing us to the next, more legitimate criticism…
2) The hybrid approach makes no sense.
The Department of Justice has crafted a protocol outlining how legal venues for particular cases will be determined. Some will be tried by civilian courts, some by military commissions. As Yoo writes of the this hybrid approach:
Stranger yet, the Obama administration declared last week that it would use these military commissions to try five other al Qaeda operatives held at Guantanamo Bay, including Abu Rahim al-Nashiri, the alleged planner of the 2000 bombing of the USS Cole in Yemen. It should make no difference that this second group attacked a military target overseas. If anything, the deliberate attack on purely civilian targets in New York City represents the greater war crime.
However, from a strategic standpoint, this second criticism is only relevant if a third criticism holds water…
3) Maybe terrorists will be set free.
If criminal prosecutions allow terrorists to more easily avoid prosecution, then Yoo’s above criticism is valid. The system would actually encourage terrorists to plan and execute attacks on U.S. civilians on U.S. soil rather than on military targets overseas, for they could more easily avoid prosecution for attacks on civilians. But is this true? Yoo claims yes, asserting:
For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots.
Actually, the Moussaoui trial disproves Yoo’s case. Also, as Steven Simon writes, there is “a zero acquittal rate for trying terrorists in New York” so far, and as for Khalid Sheikh Mohamed specifically, KSM has already confessed to his crime. James J. Benjamin Jr. adds on the New York Times‘ Room for Debate blog:
I recently co-authored a study of the experience of federal courts in adjudicating terrorism cases. The data we collected shows that federal-court terrorism prosecutions have generally yielded just, reliable outcomes that have not undermined our national security.
The list of convictions includes not only the trial of Omar Abdel Rahman in 1995, but also of Ramzi Yousef, Zacarias Moussaoui, Jose Padilla, John Walker Lindh and Richard Reid, to name just a few. Not all cases have been perfect, but the outcomes, by and large, have been accepted around the world and have consigned the convicted terrorists to spend many decades or the rest of their lives in the obscurity of federal prison.
In the years since 9/11 the Justice Department has brought 119 federal court terrorism cases against 289 defendants, with a conviction rate of 91.1 percent. Although it would be naive to suggest that the 9/11 prosecutions will be simple or straightforward, there is good reason to believe that dedicated federal judges, working with prosecutors and defense counsels, can address and overcome the challenges that these prosecutions are certain to present.
The editors of the National Review counter this assertion by noting the “paltry number of cases (less than three dozen, mostly against low-level terrorists, over an eight-year period, despite numerous attacks)” in the 1990’s. The National Review argument implies that legal obstacles shielded suspects from a wider scope of prosecutions but offers no evidentiary support.
4) Terrorists don’t deserve rights.
For some this is a purely moral stance. The crimes that terrorists commit are so heinous that the perpetrators forfeit their rights. As Tommy Crocker of Opinio Juris writes:
This thought appears in a statement attributed to Sen Lindsey Graham, who sought (and failed) to have Congress forbid federal court trials of 9/11 suspects. He claimed that “terrorists don’t deserve the same constitutional rights as U.S. citizens.” Why not? Any person we seek to punish criminally for heinous acts against U.S. persons, places, or interests “deserves” the protections afforded by a society dedicated to the rule of law. Since Sen. Graham advocates the use of Military Commissions, he is not claiming that terrorists don’t deserve any legal protections—just not robust constitutional ones. If this is correct, then for me it is an entirely new claim that does not depend on issues of military necessity, territoriality, trial pragmatics, or national security. It depends on a judgment that persons accused of terrorism deserve something less than robust criminal procedure protections.
However, as John Dehn of Opinio Juris writes, this might be irrelevant:
Public enemies of the United States have never been afforded the protections of the Bill of Rights. This is not based on their nationality or territorial location. A close reading of Supreme Court precedent clarifies that the political branches exercise war powers in a manner exclusive from the Bill of Rights (except with regard to U.S. domestic populations – where the relationship is less clear). Properly read and placed in context, neither Boumediene nor Milligan conflict with this. Quirin and Yamashita (and many, many other cases) support it. All are completely reconcilable under a proper analysis of relevant precedent, in my humble opinion.
As Andy McCarthy of the National Review notes, the Department of Justice protocol for venue selection suggests that in fact there would be significant differences between the two trial types, one difference being evidentiary standards. Still, from a national security standpoint, these arguments only matter if by going the civilian court route, we risk setting terrorists free. Thus, as the past conviction rate for terrorist cases indicates, this argument might also be irrelevant. The Department of Justice protocol also indicates that the government will not pursue civilian trials unless it is convinced that the trials will result in convictions.
5) Valuable intelligence will become public.
This is the crux of Yoo’s argument. Civilian trials will be “an intelligence bonanza for Al Qaeda,” he writes, for defendants will be granted the right to demand all information being used against them. Yoo writes:
This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the “blind Sheikh”), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.
In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.
Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.
Steven Simon counters:
Our prosecutors are certain that there is enough unclassified evidence to make their case. Moreover, the most prized intelligence is recent, specific and actionable. Al Qaeda today is most concerned with discovering when and where the next drone missile attack will take place in Pakistan, information not likely to be disclosed during a trial about a conspiracy hatched more than a decade ago.
And James J. Benjamin Jr. adds:
The record of the Rahman case indicates that the government did not seek to protect the co-conspirator list through a protective order or through the Classified Information Procedures Act. In fact, in our study, we found no examples of serious security breaches in cases where the act was invoked.
If there were an intractable problem with classified information in terrorism cases, one would expect to have stronger examples than one from almost 15 years ago where, based on the public record, the government did not seek a court order restricting the information.
Still, Andy McCarthy worries about the Classified Information Procedures Act (CIPA):
CIPA does not shield all classified information from the terrorists — just the classified information the judge decides is neither discoverable under the rules nor relevant to the trial. If it is discoverable and/or relevant, the defense gets it.
Nevertheless, the points made by Simon and Benjamin indicate that the reality will be far from the “intelligence bonanza” of which Yoo warns.
6) Terrorists will use their civilian trials as soap boxes.
This argument is getting a lot of play but is also probably the argument that is most overstated. Steven Simon notes that there will be no television cameras allowed at these trials. Also, in addition to allowing defendants to espouse radical Islamist ideology, the trials will “remind us both of the narrow viciousness of the terrorists’ cause and of the enduring strength of our own values.” Senator Feingold argues that the trials will show “the world that this country stands firmly behind its legal system and the Constitution.” In contrast, Morris Davis writes in the Wall Street Journal that the Obama administration’s hybrid solution will be perceived as a “double standard” that won’t “play well in Peoria” and “won’t play well in Peshawar or Palembang either.” He argues, “We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them.”
Overall, the arguments against civilian trials are relatively weak. Morris Davis’ claims will most likely be proven incorrect. The hybrid system will have a positive propaganda effect. The Obama administration will shield classified and/or sensitive information from public exposure. The Department of Justice protocol will prevent risky cases from making it to civilian courts. And in fact, this last point reveals the propagandistic nature of this decision. The hybrid approach will allow the U.S. to proclaim its adherence to the rule of law while actually only allowing selected cases into the sphere of criminal prosecution.