Trying Khalid Sheik Mohammed and the other accused 9/11 plotters in civilian courts would be a true man-caused disaster with national security, propaganda and public safety dimensions.
Aliens charged and tried in U.S. civilian courts receive enlarged protections, which could lead to the disclosure of valuable intelligence about our counterterrorism tactics, sources and methods. Civilian defendants have Brady Rights, which means that the prosecution must disclose evidence it has which is material to either guilt or punishment, including classified information.
Civilian defendants also have the right to represent themselves. But the statute designed to protect classified information, the Classified Information Procedures Act, does not address the situation in which a defendant exercises that right. Normally, defense counsel with security clearances participate in a pre-trial CIPA hearing, in which the court determines what can be revealed without compromising security.
The terrorist who represents himself can never participate in such a hearing, so the stage is set for post-trial objections. Only one of the defendants needs to represent himself to trigger this unworkable scenario.
Proponents of civilian trials would leave it to prosecutors and judges to craft safeguards in individual cases. But even the best prosecutors cannot think of everything, and judges cannot fully control what happens in real time in open court. They are by necessity operating on the brink of tragic error. By using civilian courts, we are giving away information and taking risks that we should not.
Next, a civilian trial would give Khalid Sheik Mohammed a grand stage to broadcast anti-American propaganda that will inspire and embolden current and future generations of terrorists.
The suggestion that using civilian trials would serve as a symbol of the strength of our justice system is misplaced. Reality is more important than symbolism, and in reality, it is a no-win situation. The defendants already have been pre-judged by President Barack Obama and Attorney General Eric Holder, who has said that "failure is not an option."
Yet in the real world, failure is always possible. If the prosecutors lose, the U.S. will hold the defendants indefinitely as alien unprivileged enemy belligerents. Imagine how that would be presented in other countries.
If the prosecution succeeds, recall that past successes did nothing to impress Khalid Sheik Mohammed or bin Laden.
The very notion that we can apply moral suasion to people who behead their captives and broadcast it on the Internet is not serious.
Finally, a civilian trial will be a flash point for attacks where it is held, creating a public safety nightmare and imposing enormous unnecessary economic burdens. That is why the trial should be held at a remote, secure military base. Guantanamo would be ideal.
The tragedy is that this disaster would be self-inflicted, because there is no need to hold a civilian trial. In their current form, military commissions have been approved by the new Congress and the courts, and will be used by the administration for other accused terrorists.
Something can be done. A bipartisan group of six senators has proposed legislation to deny funding for a civilian trial. Alternatively, Congress controls the jurisdiction of the district courts, and could strip them of jurisdiction over these defendants in a one-sentence act.
If the Obama administration does not reverse course, Congress should force its hand.
First published in the Albany Times Union newspaper: Thursday, March 18, 2010