Hedging on civilian trials

During a week in which the aerial photos of the World Trade Center towers collapse were released as a fresh reminder of the hole punched into New York City, Eric Holder may be signaling he's thinking about a military tribunal for Khalid Shaikh Mohammed rather than a civilian trial. Adam Serwer is not happy.

The fight against al-Qaeda is different from other conflicts in that it takes place on at least two fronts, one physical, and one abstract. The U.S., its military, intelligence and law enforcement agencies are fighting the kinetic aspect of that conflict, but fundamentally the point of terrorism isn't to kill, it's to terrorize. It's to intimidate a society into betraying its own ideals, to force Americans to live their lives under the terrorists influence, and to bankrupt the U.S. through endless military conflicts abroad. Terrorists don't win by killing, they win by the subsequent reaction to the theatrical manner in which they choose to kill. By transitioning the KSM trial out of the civilian justice system the Obama administration will have handed al-Qaeda a significant victory.

The Post says that the president is going to "insert himself into the debate" here. I'm not sure if that means he intends to shore up Holder's original decision or provide political cover for a venue change. But it's clear the White House is calling the shots, and if they push to try the alleged 9/11 conspirators by military commission out of political expedience it will shatter any notion that Holder is an independent attorney general.

It shouldn't come as much of a surprise to the Democrats that they're losing this fight--the message is completely muddled. The administration can't argue that the military commissions are a perfectly good venue for trying terrorists and then say the civilian courts are better without acknowledging the reality that the commissions are shaky, stilted towards the prosecution, and perceived internationally as illegitimate. Had they simply not revived them in the first place, they'd have a much clearer argument. As it stands, they're in a similar position to where the Bush administration was on torture, rhetorically clinging to an ideal they have no intention of upholding.

And while back off on a civilian trial may seem to the Obama administration as the most politically expedient way forward, former FBI agent Ali H. Soufan writes in the Times today, it's not likely to be the most effective way to put KSM behind bars for a very long time.

Of the three terrorists tried under military commissions since 9/11, two are now free. David Hicks, an Australian who joined Al Qaeda, was sent back to his native country after a plea bargain. Salim Hamdan, Osama bin Laden’s former driver and confidante, is a free man in Yemen after all but a few months of his five-and-a-half-year sentence were wiped out by time spent in custody. (The third terrorist, Ali Hamza al-Bahlul, a former Qaeda propaganda chief, was sentenced to life in prison.)

In contrast, almost 200 terrorists have been convicted in federal courts since 9/11. These include not only high-profile terrorists like Zacharias Moussaoui, who was convicted of conspiracy to kill United States citizens as part of the 9/11 attacks, but also many people much lower on the Qaeda pecking order than Mr. Hamdan.

The federal court system has proved well equipped to handle these trials. It has been the venue for international terrorism cases since President Ronald Reagan authorized them in the 1980s, and for other terrorist cases long before that. Prosecutors have at their disposal numerous statutes with clear sentencing guidelines. Providing material support, for example, can result in a 15-year sentence or even the death penalty if Americans are killed.

Military commissions, however, are new to lawyers. Military prosecutors are among the most intelligent and committed professionals I have ever known, but they faced great difficulties as they operated within an uncharted system, the legality of which has been challenged all the way to the Supreme Court three times.

It’s also worth noting that, since 9/11, there have been only two terrorists apprehended under military law on United States soil: Jose Padilla, the American accused of plotting to set off a “dirty bomb,” and Ali Saleh al-Marri, a Qaeda operative accused of being a sleeper agent. After several years, both were transferred to the federal system and are now serving time. If anything, holding them in military detention might have hindered our ability to gain their cooperation, as they gave no new significant information during that period.

Nonetheless, attacks on the abilities of the federal justice system have intensified ever since Mr. Abdulmutallab was arrested in Detroit on Dec. 25 and charged with federal crimes. Critics claim that he should have been held under the laws of war and not read his Miranda rights.

Whether suspects cooperate depends on the skill of the interrogator and the mindset of the suspects — not whether they’ve been told they can remain silent. When legally required, I’ve read some top Qaeda terrorists their rights and they’ve still provided valuable intelligence. Now we’ve learned that “despite” being read his Miranda rights, Mr. Abdulmutallab is cooperating with his F.B.I. interrogators. This should have been no surprise.

Leaving aside the self-evident hypocrisy and anti-constitutional ranting of Congressional Republicans (why do they hate America?), the complaints from Bloomberg and others in New York -- that a trial would disrupt the city and the lives of those who live there -- just doesn't rest on any evidence. They've been holding high-profile terrorism cases there for years.