Earlier this month The Washington Post reported that President Obama's advisers "are nearing a recommendation that Khalid Sheikh Mohammed, the self-proclaimed mastermind of the 9/11 attacks, be prosecuted in a military tribunal."
A decision to hold the trial of Khalid Sheikh Mohammed (KSM) in military courts deviates from the administration's professed commitment to prosecuting terrorists in civilian court. If Obama approves the use of a military tribunal, it would be a concession to Republicans, and part of a larger strategy to secure their congressional votes for funding the closure of the Guantanamo Bay detention center.
Attorney General Eric Holder's statement last November that the Khalid Sheikh Mohammed trial be held in New York City criminal courts incited a firestorm of opposition. Critics opposed the high security risks and the high price tag attached to a KSM trial in a lower Manhattan courthouse.
The Attorney General's announcement, later withdrawn, reignited the ongoing debate over where and under what set of rules our government should prosecute terrorists captured since the September 11th attacks.
Some believe that our nation's criminal courts have proven themselves capable of handling terrorism prosecutions without sacrificing our national security or our commitment to a fair trial and due process for all.
Others claim that military courts should be used to adjudge terrorist acts committed in the international phase of an armed conflict. They cite the government's need during times of war to dispense justice to terrorists swiftly and in a way that protects our country's intelligence and intelligence gathering.
Military commissions have less strict guidelines than federal courts. They have relaxed evidentiary standards and usually have a panel of military officers in lieu of juries. Because defendants are afforded fewer rights, military courts give the military and executive branch maximum flexibility to swiftly adjudicate enemy combatants who violate the laws of war.
In civilian courts, the government has less flexibility and must work harder to convict terrorists. Despite this, federal prosecution has become a powerful tool for putting terrorists behind bars.
A Human Rights Watch report released in 2009 identifies 119 terrorism cases that have been filed in civilian courts since September 11, 2001, with 289 defendants charged in those cases. Of the defendants whose cases were resolved as of June 2009, 91% percent of them were convicted of at least one count of terrorism.
The report concludes, "the federal court system generally leads to just, reliable results and does not cause serious security breaches or other problems that threaten the nation's security."
Critics, however, often portray federal court trials of terrorists as dense obstacle courses, with numerous opportunities for guilty defendants to game the system and escape responsibility for their crimes. They argue that the discovery process and the public presentation of evidence in civilian court can leak sensitive intelligence. Terrorist defense counsels have learned to exploit this. By pushing for discovery of sensitive intelligence information, terrorist defense counsels aim to raise the intelligence cost of prosecuting a case to a point where the government drops the case -- a practice known as "graymail."
But obstacles like these are not insurmountable. Faced with graymail, federal prosecutors can utilize the Classified Information Procedures Act (CIPA), whereby prosecutors can seek the court's permission to withhold particularly sensitive information.
In some ways the process of litigating a criminal case handicaps intelligence collection. In other ways it strengthens the overall system of counterterrorism by promoting cohesion between different arms of government to collect intelligence. Prior to the 9/11 attacks, the CIA and its sister agencies collected intelligence to foil terrorist plots, while criminal investigators and federal prosecutors put the terrorists away. Intelligence operations and prosecution were related, but operationally separate. Since 9/11, the government's use of civilian courts spurred the integration of law enforcement efforts with intelligence gathering operations.
As demonstrated by the 91% conviction rate, and the fact that our country has not suffered another attack, the criminal justice system adapts to handle terrorism prosecutions without compromising our intelligence gathering or our adversarial process.
Some observers see advantages for using the civilian courts beyond the high conviction rate. Nadine Strossen, former President of the American Civil Liberties Union, claims that because military commissions violate our nation's core principle of the right to a fair trial they increase the threat to our nation's security. "When our own country violates our core principles," Strossen observes, "we bolster our enemies' recruiting efforts."
General Charles Krulak, Commander of the U.S. Marine Corps, and Joseph Hoar, former Commander-in-Chief of U.S. Central Command, echo the importance of our nation's moral image in the world: "This war [on terror] will be won or lost not on the battlefield but in the minds of potential supporters who have not yet thrown in their lot with the enemy."
When democratic nations go to war, they grapple with the competing interests of public safety and liberty. Richard Allen Posner, a judge and professor at the University of Chicago Law School, argues in his book Law, Pragmatism, and Democracy that during times of war all that can be asked of legislative and judicial officials is that they try to balance the competing interests of public safety and liberty "without a thumb on the scale or a desire to shift the balance for extraneous reasons."
Despite his confidence in the civilian court system, Obama's thumb is being pressed by partisan and pragmatic demands. Extraneous reasons might shift the scale towards public safety -- and away from liberty -- if Khalid Sheikh Mohammed is tried in a military court.
President Obama once urged Americans to reject the "false choice between security and our ideals." His sentiment implies that you can have both security and ideals; that civilian courts, which give civil liberties to unlawful enemies, can and have proven to serve our nation's security interests.