United States Attorney General Eric Holder and The Obama Administration were presented with a choice. They could have chosen to submit Khalid Shaikh Mohammed and the four other alleged 9/11 terrorists to face prosecution either in federal court by federal prosecutors before a federal judge conducted under federal law and procedure, or in the alternative, could have had them face a trial before a military tribunal.
Either decision would have been legally justifiable.
It would have been justifiable to try them in a military tribunal because, as the grieving family members of the 9/11 victims rightly point out, Mohammed, Al Quaida and radical Islam have declared war against the United States. The 9/11 attacks were an intentional expression of a wartime agenda, and Mohammed was a key general in that war. The Americans murdered on 9/11 were innocent victims of an assault on the United States and the American way of life.
The murders, however, were also a violation of federal law, the crimes were committed here on our soil in New York City and not abroad. Mohammed, not an American citizen, is classified in international law as an “unlawful combatant,” not a prisoner of war (POW). Under the Geneva Convention of 1949, a person is a POW if they: (a) are commanded by a person responsible for his subordinates; (b) have a fixed distinctive sign recognizable at a distance; (c) carry arms openly; and (d) conduct their operations in accordance with the laws and customs of war.
Since Mohammed is clearly not a POW but a foreigner alleged to have plotted a horrific and barbaric mass murder on our soil, kidnapping Americans and murdering them with American civilian airline jets, either system of prosecution is justifiable. Neither system will provide true justice for this rogue act of barbarism. As with all horrific crimes that shock our sense of a civilized human existence, any procedures with rules and decorum will feel out of place and elevate Mohammed to a level he seemingly does not deserve.
So why do it?
A civilian trial in a United States District Court will be held to an even higher level of decorum than a military tribunal. The rules of evidence in federal court are stricter than in a military tribunal. The following evidence is allowed in military tribunals but will not be allowed in a federal civilian trial: coerced testimony, hearsay testimony, and written statements not subject to cross-examination. Federal judges and prosecutors have, since 1993, accumulated an impressive record of trying and prosecuting hundreds of suspected terrorists. They prosecuted in a federal court in New York Ramzi Yousef, the mastermind of the first World Trade Center bombing, Omar Adbel Rahman, the “blind sheik,” and a federal court in Virginia put on trial Zacarias Moussaoui, the “20th hijacker.”
At this time in history the United States needs to further repair an image tarnished during eight years of the Bush Administration. That administration and the manner it treated military prisoners gave minimal rights to the accused, allowed torture and had to be reined in a number of times by the Supreme Court, a court known to be otherwise conservative when it comes to the rights of the accused. In one such strong rebuke, Supreme Court Justice Anthony Kennedy wrote for the majority in Boumediene v. Bush, “the laws and constitution are designed to survive, and remain in force in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”
Mohammed would like nothing more than for us to summarily execute him; he craves for us to imitate his barbarism. He wants us to do that so that he and his fellow radicals can hold us up as international oppressors. The appropriate way for us to defy him is to make no apologies, to hold our heads up high and conduct the most fair, dignified proceeding possible. Not because we are weak, but because we are strong. And in acting with elevated rules of procedure and decorum, and conducting an open and public trial in a federal courtroom in New York we will demonstrate to the world, and history shall record, that we are a nation where the overriding principles are the rule of law, of fairness and a dedication to human dignity.
The memory of the victims of 9/11 deserve nothing less.
