The Mohammed Trial: Obama's Two Speeches

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When President Barack Obama hears from his advisers again on the Khalid Sheikh Mohammed venue question, he is reportedly going to be confronted with an option that represents a complete surrender to the country's dark forces of fear, ignorance and vengeance. His counselors, like the amoral back-room boys in Mr. Smith Goes to Washington, are evidently poised to recommend that the administration now abandon its noble and dignified plan to try KSM in a federal civilian court and to move him back into military tribunal mode, a mode, few seem to remember, which has been virtually a complete failure since September 11, 2001.

There are now two paths ahead for Obama. One is politically expedient and to some extent popular. The other is right and to some degree risky. One would display an abdication of leadership in the face of political bullying and ignorance. The other would display the sort of far-sighted leadership Americans always say they want but never really do. Here, below, in 500 words or less, are the two speeches he could give to choose his path. Which one would you rather hear?

Here's the first speech:

My fellow citizens. After much internal discussion and public debate, I have decided after all to order the Justice Department to prosecute Khalid Sheikh Mohammed in federal civilian court, where hundreds of terrorists, before and after the terror attacks upon America, have been safely and successfully tried, convicted and sentenced. I believe this course of action is legally justified, morally correct, and pyschologically necessary for the country. We are not a nation that flees in fear of fair, open trials. We are not a nation that has to cheat to gain justice for the worst among us. There will be other military commisison trials for terror suspects. But not for Mohammed. Not now. 

Like it or not, he is the highest-ranking Al Qaeda member we have captured in the eight-and-one-half years since the Twin Towers fell. Like it or not has become a symbol of our war on terrorism. And like it or not, he presents us with a unique opportunity to show the world how different we are from the men who flew in to kill us that day. They killed innocents without warning. We will judge them -- by our own people and in our courts of law--  in the same way as we have other mass murderers since the country was founded. They seek to use our systems against us. We will show them that our judicial system, and our recognizable rule of law, is more powerful than any terror training manual or battleplan or grainy speech from a hidden leader.

I do not fear Khalid Sheikh Mohammed. And neither should you. He is not a monster. He is not super human. He is just a man. A man we captured over seven years ago. He has not been properly tried because of the very tribunal system back into which our critics now want to throw him. This makes no sense to me. The legal confusion over the commissions is as real as is the proven track record of our federal courts to get convictions in these sorts of cases. As real as the likelihood that it will be faster to try Mohammed in federal court than through those tribunals. If we have first tried Mohammed in federal court after we were done interrogating him, he'd already be tried and, I believe, convicted. Ask John Walker Lindh and Richard Reid and Zacarious Moussaoui and Jose Padilla and dozens and dozens of other lesser suspects how well they did in our civilian courts.

Backing away now from bringing Mohammed to justice in our federal courts sends the wrong message. To my fellow citizens it says that my administration has not learned its lessons from the Bush White House when it comes to politicizing the law or choosing the cheap and easy and convenient path of least resistance. It says that partisanship, and not logic, still control the contours of our evolving rule of law. It says that the mob rules even where professionals tread; that we have leadership in Washington which cynically encourages and distills fear and loathing rather than easing it. This is precisely the rank atmosphere I came to Washington to try to change.

I know that a civilian trial asks a lot of you as citizens. There are costs involved. Financial ones. Emotional ones. Practical ones. I am asking you tonight to bear this burden, to stay strong to our values as a nation, to be brave in the face of fear of future attacks, and to have faith that what is the hardest about this case is what makes this decision as right as it is. The federal government will pay for the vast majority of the trial. We will continue to ring our cities with protection against terrorism. We will not tolerate or permit a show trial. We will do what we have done often, before and after 9/11, and that is to try accused men in our courts of law, where they are judged by our citizens and citizen-judges. We do this not because we are weak. We do this because we are strong.

Now here is the second speech:

My fellow citizens. Last November, Attorney General Eric Holder announced that Khalid Sheikh Mohammed, one of the plotters of the September 11th attack upon America, would be tried in federal civilian court in New York City. Although we had secured the consent of the City's mayor and other public officials, the reaction to our announcement spawned furious anger from a great many Americans, including a great many living and working within the City of New York. Tonight, we tell those people that we have heard their call, that we have listened to their impassioned pleas.

Tonight we announce that Mohammed and other terror suspects will not be tried in civilian courts. Instead, we rededicate ourselves to fixing what has been broken since before it began -- the military tribunals that are at the heart of the debate over terror law. In November 2001, in the immediate wake of the worst crime in American history, my predecessor authorized the use of military commissions to process and prosecute terror suspects who could not easily be tried within our regular justice system. It was a good idea. It still is. There is room in our rule of law for parallel lines of justice when it comes to men who typically are part-suspect, part-terrorist and part-warrior. To think otherwise is simply too narrow a choice.

The idea was good. The implementation of it was awful. All of us in federal government for the past 10 years deserve a measure of blame for the failure to create workable tribunals at Guantanamo Bay, Cuba or anywhere else. Bush-era lawyers and military officials came up with trial rules that were far too onerous. The Congress failed or refuse to fix these problems, instead choosing over and over again to butt heads with the Justices of the Supreme Court, who all too often failed or refused to issue clear guidance about what those rules should be. I'm afraid to say that my legal advisors, and their Congressional counterparts, have not done much better since January 2009.

All that ends with this decision. By so publicly turning away from federal trials for these terror suspects, by so evidently disrespecting the judges and federal prosecutors who have consistently delivered us safe and successful terror law convictions, we dedicate ourselves now to a ferocious re-commissioning of the military commissions. We will make them fairer than they were before. We will make them quicker than they were before. We will answer the questions posed by judges and justices and civil libertarians in a more productive and satisfactory way. We do not need these commissions to be Kangaroo courts -- we are far better than that as a people -- and going forward they no longer will be.

In exchange for this concession to the Congress and our critics out of government, I demand something in return. No more unhinged partisanship on terror law. No more shameless pandering to the fear and anger of the mob. No more lazy obstruction in the creation of the tribunal rules or dogged stubborness in the face of all those Supreme Court decisions telling us what we were doing wrong. We have been "doing wrong" by the suspects and tribunals both since 9/11. We have thus been doing wrong to all of you as well. If Mohammed is a symbol to dark forces in the world it's high time we became a brighter and clearer symbol for the simple justice we seek against him and his alleged confederates.  

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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