The Underwear Bomber Goes to Trial

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His courtroom antics prove we shouldn't be afraid of public trials for al-Qaeda defendants: the more people see of this suspect, the less scary he becomes

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Umar Farouk Abdulmutuab / Getty

In Detroit on Tuesday jury selection begins in federal district court in the case styled United States v. Abdulmutallab. You probably know the criminal defendant better by his international nickname, the "Underwear Bomber," a mocking yet evocative sobriquet that Umar Farouk Abdulmutallab picked up nearly two years ago when he was apprehended aboard a Detroit-bound Northwest Airlines plane trying to set off an explosive device he had concealed in his pants

As a matter of law and fact the Abdulmutallab case is about as one-sided as a criminal case can be. Alleged co-conspirator Anwar al-Awlaki may be dead and gone, but there are all the people on the plane who witnessed what the defendant did on December 25, 2009. Also, prosecutors will show jurors, on videotape, a controlled demonstration of the explosive device-- ka-BOOM!-- the defendant was said to be trying to detonate from his seat. And Abdulmutallab reportedly upon arrest was only too happy to announce his devotion to al-Qaeda, which our dutiful law enforcement officials were only too happy to transcribe.

The defense? In US v. Abdulmutallab, the defendant is representing himself, like Zacarias Moussaoui did during his sentencing trial in Virginia and like Khalid Sheik Mohammed did when he went (briefly) on trial at Guantanamo Bay, Cuba. It's an al-Qaeda thing, evidently, to preclude your infidel lawyer from standing up for you in court. (It is evidently not an al-Qaeda thing to preclude your "stand-by" lawyer to file smart briefs in court. Abdulmutallab may make an opening statement next week in his own behalf. But his infidel lawyers-- on court-appointed stand-by to ensure the legitimacy of the trial-- have honorably protected his interests in pretrial motions).  

They say that any defendant who hires himself as attorney has a fool for a client. Perhaps that explains why Abdulmutallab has acted so often like such a jackass during pre-trial proceedings. He's reportedly sat in court with his feet on the defense table, shouting "Osama lives" on more than one occasion. And he's refused to stand up in court for the entrance each session of U.S. District Judge Nancy Edmunds, a well-respected appointee of the first President Bush, who surely will earn her modest salary this month shepherding the 24-year-old Nigerian defendant through to verdict.

Judge Edmunds has a tough path to navigate. She has to allow Abdulmutallab to speak out on his own behalf without allowing him to do what he's desperate to do; turn the trial into a zoo. Moussaoui tried to do the same thing during his 2006 sentencing trial but U.S. District Judge Leonie M. Brinkema schooled him with a blend of judicial power and motherly firmness. I bet you a steak dinner that Judge Edmunds already has been in touch with Judge Brinkema about how to handle an unwieldy al-Qaeda defendant during a jury trial. The two judges are part of an exclusive club, after all.

And I bet you that Judge Edmunds will be able to control Abdulmutallab for the course of the trial. He's got the same balancing act that she does, when you think about it. If he goes too far in disrespecting the court or the country, he runs the risk of being kicked out of his own trial. It's an extraordinary remedy but trial judges have been known to relegate criminal defendants to a cell where they can view the proceedings via closed circuit. If that happens to Abdulmutallab, he'll lose his audience and his voice. And, let's face it, that's all he has right now.

Like my ol' pal Kenneth Starr just wrote in the Times, it is a crying shame that there are no television cameras in federal courts. If there were cameras in US v. Abdulmutalallab, the cynics on Capitol Hill who don't trust American judges and juries to handle terror cases would learn the most important unlearned lesson in terror law since the Twin Towers fell: the more people see of these al-Qaeda suspects the less scary they become. The more the spotlight shines upon them, the less monster-like they appear. Moussaoui was a joke by the end of his trial. If Abdulmutallab doesn't sit up straight and behave he'll be a joke, too.

If the American people (and every member of Congress) were to watch able to watch the coming Abdulmutallab proceedings, or just pay close attention to them from afar, it is quite likely the debate over civilian trials for terrorists would change forever. Here's a suspect who was given a Miranda warning and yet the sun did not fall from the sky!. Here's a terror suspect who wasn't treated like an "enemy combatant"-- and he's still almost certainly going to spend the rest of his life at the Supermax prison facility in Florence, Colorado!

Critics of civilian trials for suspected terrorists-- men like Sens. John McCain and Lindsay Graham-- are afraid that public trials for men like Abdulmutallab will become marketing tools for al-Qaeda. History tells us, however, that the opposite is true. Richard Reid, the shoebomber, was schooled in Boston by Chief U.S. District Judge William Young. Moussaoui was tamed by Judge Brinkema. Jose Padilla's jury in Miami barely had time for a cup of coffee before it convicted him.  

Who are we kidding? This young man, Abdulmutallab, who couldn't light his underwear on fire when his life depended upon it, is not the next Marx or Lenin or Mao or Bin Laden. He's not going to be a recruiting poster for a reeling al-Qaeda network. If he were able and willing to succeed in this task, his feet wouldn't already have been on the defense table and his shirt would always be buttoned in court. In-court insolence toward the American justice system is neither new nor effective. And yet it's all Abdulmutallab has mustered so far.

The smartest thing America could do for its public relations efforts in the Arab world would be to televise this guy's trial. It would make Abdulmutallab look more like a criminal than a soldier; more like a young punk than a learned tribune of some hoary oath. If only we could figure out a way to do an instant poll in the Middle East for the moment after Abdulmutallab screams out "Osama lives" or "al-Awlaki is alive" in court. We shouldn't be afraid of public trials for men like this; we should be proud of such moments. We should seek them out. They make us look bigger and the defendants look smaller.

Maybe Abdulmutallab's style of trial work-- part Perry Mason, part your sullen teenage kid-- will put to rest the silly notion that al-Qaeda defendants have some preternatural strength to hypnotize jurors and the youth of the Arab world. Perhaps this coming trial will prove to the country that it is making an avoidable mistake by not allowing the Obama Administration to treat al-Qaeda defendants like other suspected criminals. Perhaps not. If a trial occurs away from television, does anyone see or hear it?

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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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