In the two weeks since Attorney General Eric Holder's announcement regarding civilian trials for Khalid Sheikh Mohammed (KSM) and his four co-conspirators, critics have latched on to some common myths about the utility of civilian courts versus military commissions. Four of those misstatements have not gone away and need to be addressed.
1) Civilian court trials return us to a pre-9/11 mindset. Rudy Giuliani was one of the first to perpetrate this misleading slogan. The problem with this claim is that civilian court trials of terrorists never went away. In fact, they increased dramatically after 9/11. A study from the Center on Law and Security shows 693 defendants with identified terrorist ties were prosecuted in the United States from September 2001 through September 2008. 81 of those defendants were affiliated with al Qaeda. The Bush administration certainly did not advocate a "return to the pre-9/11 mindset" yet it vigorously pursued terrorists around the globe and even brought some of them back to the United States for trial in civilian courts.
2) Civilian trials will create an unacceptable security risk to New York. Former Bush administration official John Bolton continued to give legs to this overstatement in an interview last Friday. He conveniently overlooked the fact that New York City hosted 23 of those 81 al Qaeda defendants prosecuted in the United States since 9/11 and none those cases sparked another terrorist attack. New York City has consistently been the target of terrorist plots since 9/11 regardless of our policies (remember Denver's own Najibullah Zazi). Whether al Qaeda terrorists are tried in New York City has little to do with al Qaeda's desire to attack it again. Courthouse security is always a legitimate concern, but anyone familiar with al Qaeda's tactics knows they are more likely to attack soft civilian targets than a heavily guarded building. Terrorists would gain the same propaganda effect by attacking a shopping mall or nightclub -- and they could just as easily do that during a military commission trial.
3) The government will be forced to turn over classified intelligence during the trials. Some GOP Senators, former Bush administration officials, and 1993 World Trade Center bombing prosecutor Andrew McCarthy expressed this belief almost immediately after Holder's announcement. None of them, however, mentioned the Classified Information Procedures Act (CIPA) and its function in mediating what information gets released. CIPA has been law since 1980 and played a role in numerous civilian national security prosecutions. CIPA allows a judge to conduct a review of classified information outside the presence of the defense after the government raises an objection. The judge may then decide against disclosure or allow redacted disclosure based on a balancing test. Military commission rules call for the same kind of procedure.
4) Civilian trials will be a long, drawn out process. Attorney and 830 KHOW talk show host Craig Silverman expressed that concern on this site about a week ago. On its face his view is valid because criminal cases rarely move quickly. But the critics do not address how military commissions could be any different. KSM's lawyers would work just as hard to slow down a military commission trial and they would have even more material to use. Military commission rules have little precedent and offer judges no guidance on procedure, evidence and substantive law. Indeed, the entire constitutionality of the commissions could take years to adjudicate. If military commissions provide sufficient due process, as their advocates claim, there will be plenty of room for challenges throughout the proceedings.
Some of the criticism of Holder's decision comes from individuals who would only support detaining terrorists indefinitely at Guantanamo Bay. For the rest, eliminating the lazy catchphrases and examining the facts should make the debate more fruitful. Civilian trials are one weapon among many we can use against terrorists. Their potential effectiveness should not be a victim of ideological spin.