In the annals of poor political judgment, the Obama administration’s decision to try 9⁄11 mastermind Khaled Sheikh Mohammed and four other Guantanamo Bay-based terrorist detainees in a New York City federal court may yet rank as a blunder without peer in American history.
The administration’s announced motive is to prove that civilian courts can be trusted to dispense justice to America’s deadliest enemies. But in affording al-Qaeda alumnus Mohammed and his jihadist cohorts the constitutional privileges reserved for common criminals, the administration may have put America on trial and potentially endangered the country to score a political point against its predecessor.
Of Mohammed’s guilt there can be no doubt. By his own account, he had a hand in 31 terrorist plots, chief among them the attacks that killed nearly 3,000 Americans a short distance from Mohammed’s expected trial site in southern Manhattan. In March 2007, the onetime al-Qaeda number three confessed that he helped Osama bin Laden organize, plan, and execute the 9⁄11 attacks. “I was responsible for the 9⁄11 operation, from A to Z,” Mohammed recounted.
Other highlights of Mohammed’s terrorist handiwork include planning the 1993 World Trade Center attack; the murder of Wall Street Journal reporter Daniel Pearl, whom Mohammed boasted of personally beheading; the 2002 Bali nightclub bombings; planning attacks in Thailand, the Philippines and Israel; and planning a series of “second wave” terrorist attacks to be carried out in the aftermath of 9⁄11 on the Library Tower in Los Angeles, the Sears Tower in Chicago, the Empire State Building in New York, as well as targets in Washington State. As Mohammed once put the obvious in his broken English, “For sure, I’m American enemies.”
Less certain is that the self-declared enemy of the United States will be held to account for his crimes. Some of the most incriminating evidence against Mohammed was obtained after he was subjected to waterboarding by the CIA. But that evidence will be inadmissible in a civilian trial. Moreover, defense lawyers will almost certainly attempt get the charges against Mohammed and his co-defendants dismissed on the grounds that they were “tortured,” however dubious that may be as a description of an interrogation technique conducted under conditions carefully monitored to avoid inflicting lasting physical injury.
Prosecutors would not be powerless against that strategy. Already, there are reports that a “clean team” of interrogators was called in to collect evidence on Mohammed that did not rely on under-duress confessions. Nevertheless, it remains the case that the trial could devolve into a referendum on American detention policies under the Bush administration rather than the mass murderers at its center.
There are other obstacles to the conviction that Attorney General Eric Holder has already promised. Because the trial is set to take place in the shadow of the World Trade Center, defense attorneys are likely to move for a change of venue. After all, they could claim, isn’t a fair trial impossible in a city still scarred by the 9⁄11 attacks? Even if it fails, the motion and other stalling tactics could drag on the trial for years.
No matter the outcome of the trial, the mere fact that it will be taking in a civilian court will be a victory of sorts of Mohammed. After being sequestered in Guantanamo Bay, he will be presented with a prominent soapbox to inveigh against America. That is precisely what happened with Zacarias Moussaoui, the so-called “20th hijacker,” who turned his trial, which began in 2002, into a shameful four-year spectacle. Railing against America at every turn, Moussaoui made a mockery of the legal proceedings, variously attempting to represent himself, to plead guilty, and to discredit the entire process. Now Mohammed will be able to repeat Moussaoui’s feat. “I am looking to be a martyr for a long time,” Mohammed has said. Having failed to achieve the desired result on the battlefield, he will get his chance in the courtroom.
The public nature of the trial is also likely to handicap American efforts against international Islamic terrorism. The transparency demanded by a criminal court will provide watching terrorists with a window into the state of American counterintelligence. The 1995 trial of the first World Trade Center bombing plotters, which Holder has cited as a model for trying Mohammed and others, actually offers a grim precedent. During the prosecution, Osama bin Laden learned that he had been named as a “co-conspirator” in the 1993 bombing. Time would pass before the United States officially placed bin Laden on its enemies list, but the trial had tipped him off about U.S. suspicions long before then.
The charade that the trial will likely become could have been avoided. Mohammed has already pleaded guilty in a military court at Guantanamo, where the system of military commissions, relying on a looser standard of evidence – there is no expectation that detainees must be read their Miranda rights and some classified evidence is admitted – is the ideal venue to adjudicate such cases. Military commissions provide detainees with due process without releasing classified intelligence and compromising counterterrorism efforts. Presumably, this is why the Obama administration has decided to keep the military commissions in place for other Guantanamo residents. Abandoning them in the case of Mohammed et al. is a major and thoroughly gratuitous gamble.
The lessons of the World Trade Center bombing are once again instructive. In his legal memoir Willful Blindness, Andrew McCarthy, a former federal prosecutor who led the government’s case against bombing architect Sheik Omar Abdel Rahman, points out that one of the mistakes the prosecution made was allowing bombing conspirator Ahmed Abdel Sattar to go free. Judging the evidence too weak for a conviction in a civilian court, McCarthy declined to prosecute Sattar. Thus spared, Sattar spent the next decade aiding and abetting the jailed Sheik Rahman as he directed his terrorist followers in Egypt. He was not apprehended until 2005. Will the Mohammed trial produce a new Ahmed Abdel Sattar?
Attorney General Holder seems confident that it will not. According to Holder, there is sufficient admissible evidence to convict the terrorists on trial and secure the death penalty. For the sake of American national security and, even more, for the families still grieving over loved ones lost in the worst ever attack on American soil, he had better be right.