At Gitmo, Back to the Future for Khalid Sheik Mohammed

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The 9/11 mastermind is back on trial. This time, a conviction seems far more certain.

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At Guantanamo Bay, Cuba the Obama Administration recently re-charged the man behind the 9/11 terror attacks. Image via Wikimedia Commons

The United States Tuesday formally re-charged Khalid Sheik Mohammed in military tribunal proceedings at the Pentagon's terror-law prison at Guantanamo Bay, Cuba. The man behind the terror attacks of September 11, 2001, and the man who more recently has come to symbolize America's divisive commitment to keeping the notorious prison open, will once again face murder, conspiracy, and other terror-related charges. So will four of his alleged confederates.

If military officials make it through to trial this time, it is virtually certain that Mohammed will be convicted. Even if Mohammed's words ultimately are not used against him, even if the coming trial is thus not dominated by talk of torture, the federal government has piles of other evidence linking Mohammed to 9/11, the largest single criminal act in American history: more than enough to prevail at trial. And that assumes that the defendant is going to contest the primary charges against him. I wouldn't assume that in this case. Not at all.

Only four months before the 10th anniversary of the attacks, and more than eight years after Mohammed was captured in Pakistan, the Obama Administration is finally adjudicating a tribunal case against him because: 1) it has no other choice now that Congress and local politicians have blocked a federal civilian trial for him and 2) its lawyers believe that the convictions these military tribunals will generate stand a decent chance of being endorsed on review by the federal courts. Got to go through it to get through it, right?  

Part of the reason for White House optimism toward this round of tribunals is substantive; the new military commission rules are generally more fair to the terror suspects, providing them with broader due process rights, which means they are more likely to pass constitutional muster on appellate review. No, they are not flawless; the civil libertarians are right about that. But the new procedures--which make it more difficult for prosecutors to use hearsay evidence against the men and which preclude the use of testimony obtained through torture--certainly stand a better chance of succeeding than did the Bush-era rules which the United States Supreme Court rejected in 2006 in the Hamdan decision

But part of the Administration's latest tribunal gamble is metaphysical as well; the federal courts, and especially the Supreme Court, will be loathe to set the tribunal system back another five years or more with an adverse ruling. Both the political and legal conditions may be ripe, in other words, to finally get these detainees processed and prosecuted after so many stops and starts. Can't you imagine President Barack Obama telling Pentagon officials that he wants Mohammed convicted before September 11, 2011? I sure could.

In the meantime, it might be useful to remember what happened the last time Mohammed and his co-defendants began to embark upon the tribunal process. Let's go back exactly three years, to early June 2008, and their memorable arraignment at Gitmo. By all accounts, it was a zoo. Here's how Newsweek magazine covered it at the time:

A defiant Khalid Sheikh Mohammed chanted holy verses in Arabic, railed against President George W. Bush for his "crusader" wars and declared his wish to become a "martyr" during a raucous military tribunal hearing convened today to begin the process of trying him as the mastermind of the September 11 terror attacks.

"It's an inquisition, not a trial!" proclaimed Mohammed in a tense, tightly guarded courtroom. "We under five years were under torture. We don't have rights to anything. After all this torturing, they transfer us to inquisitionland in Guantánamo."

Here's how Time magazine covered it:

Polite, and addressing the judge with confidence in clear, slightly broken English, Mohammed persisted in speaking to fellow prisoners and made clear he plans to follow "God's law." At the close of the morning session, he was asked to approve a drawing of him rendered by a sketch artist. "Look at my FBI photo. Fix the nose. Then bring it back to me," he reportedly answered.

And I compared the Mohammed arraignment to the Al Qaeda defense tactics I had seen covering the federal trial of 9/11 conspirator Zacarias Moussaoui. Here's what I wrote three years ago on the topic:

Moussaoui did it first-for nearly four years from 2002 to 2006. And if he were able to read the papers today (he isn't, such is his state of life confinement at the Supermax facility in Florence, Colo.) I suspect he'd be delighted and not a little satisfied to discover that the fellow who "fired" him from the 9/11 plot, Khalid Sheikh Mohammed, nevertheless employed Moussaoui's own terror-trial tactics. The former told the judge he was ready to die. So did the latter. The former mocked prosecutors. So did the latter. The former trashed America. So did the latter.

So we have all that to look forward to in the coming weeks and months. The first Mohammed arraignment never resulted in a trial, much less a conviction, because Obama Administration officials scrapped the tribunal procedures in place at the time. My money is on a completely different result this time; different, that is, except for the shtick we're likely to see and hear from the men in the dock.


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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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