Why Not Try Khalid Sheikh Mohammed by Video?

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A noted terror trial judge has a bright idea on how to safely and efficiently prosecute Khalid Sheikh Mohammed. Is Washington ready to listen?

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Reuters

As long as President Obama is listening, Daniel Klaidman is writing, and Washington seems interested, U.S. District Judge William G. Young reckons it's as good a time as any to pitch an idea he's been tinkering with for a few years. It's a bold suggestion, designed to solve one of the most difficult problems raised by the war on terror, and to work it would require leaps of faith and policy that seem far beyond the cognitive ability of the current crop of public officials. But surely it's worth the conversation. Nearly 11 years after 9/11, perhaps its time to listen carefully to a serious judge with a practical plan.

A 1985 appointee of President Ronald Reagan, Judge Young, as you will see below, already has earned himself a measure of immortality in the world of terror law. And now he's back with an earnest pitch: Why not prosecute Khalid Sheikh Mohammed and other terror suspects in federal civilian court at the American prison at Guantanamo Bay, Cuba? If Mohammed can't be brought to the federal courts, how about bringing more of the federal courts to Mohammed? Judge Young believes that foreign terror suspects may safely, efficiently and constitutionally be tried in an Article III civilian court without ever leaving Gitmo. Here are the broad contours of his plan:

Why don't we try him by video conference? He will stay in Guantanamo, a criminal jury will be empaneled in the normal way, in an appropriate way, all crimes save for impeachment should be tried by jury. Trial takes place in Gitmo. Witnesses must go to Gitmo. Judge must go to Gitmo. Our video conference hookup is sophisticated. Jury could see him and every witness but KSM could not see jurors. When all the evidence is over, the lawyers would come back to New York and give closing arguments. KSM could see the final arguments.

Judge Young concedes that a federal criminal trial has never before been done by video conference. But he says he is unaware of any insurmountable "constitutional infirmities" that would preclude it. The technology already is in place (last year, for example, a group of Yemenis at Gitmo were allowed to video conference with their families). No offense to the military officials who are currently presiding over the commissions, Judge Young adds, it's just that federal trial judges in New York, Boston, Washington, and elsewhere have centuries of combined experience controlling their courtrooms in terror cases.

THE PRESIDENT

Why does Judge Young's opinion matter more than the average federal trial judge?  Klaidman tells us. His latest set piece, Kill or Capture: The War on Terror and the Soul of the Obama Presidency, starts off with a bang. It is January 2010, and President Obama and his top advisors are in the White House Situation Room trying to decide how to react to the stab in the back just administered to them by New York Mayor Michael Bloomberg. Originally supportive of a federal civilian trial for 9/11 mastermind Khalid Sheik Mohammed, Bloomberg by now has changed course and opposes a big terror trial in the city, a venue that has safely, for centuries, hosted hundreds of such terror trials.

As the meeting degenerates into what Klaidman calls "squabbling," the president picks up from the table in front of him a copy of a federal judge's remarkable speech made in open court in Boston in early 2003. It is the now-legendary smackdown given to Richard Reid, the so-called "shoebomber," who in December 2001 had tried to detonate a bomb aboard American Airlines Flight 63 from Paris to Miami. The courtroom orator, U.S. District Judge William Young, a Reagan appointee with a long history of outspoken, trenchant opinions, was responding to a pro-Al Qaeda outburst made by Reid following his guilty plea.

Here is the full text of the January 30, 2003 speech -- then and now one of the most eloquent statement of American values uttered by a public official since September 11, 2001. To his credit, Klaidman reproduces the entire speech as well. And why not? After reading Judge Young's speech aloud to his audience, the president reportedly asked: "Why can't I give that speech?" before quickly and wordlessly leaving the Situation Room. Why not, indeed. Thirty months after the president asked his rhetorical question, the case for federal civilian trials for terror suspects somehow has lost political ground.

THE SPEECH

THE COURT: Mr. Richard C. Reid, hearken now to the sentence the Court imposes upon you. On Counts 1, 5 and 6 the Court sentences you to life in prison in the custody of the United States Attorney General. On Counts 2, 3, 4, and 7, the Court sentences you to 20 years in prison on each count, the sentence on each count to run consecutive one with the other. That's 80 years. On Count 8 the Court sentences you to the mandatory 30 years consecutive to the 80 years just imposed. The Court imposes upon you on each of the eight counts a fine of $250,000 for the aggregate fine of $2 million.

The Court accepts the government's recommendation with respect to restitution and orders restitution in the amount of $298.17 to Andre Bousquet and $5,784 to American Airlines. The Court imposes upon you the $800 special assessment. The Court imposes upon you five years supervised release simply because the law requires it. But the life sentences are real life sentences so I need not go any further. This is the sentence that is provided for by our statutes. It is a fair and just sentence. It is a righteous sentence. Let me explain this to you.

We are not afraid of any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before. There is all too much war talk here. And I say that to everyone with the utmost respect. Here in this court where we deal with individuals as individuals, and care for individuals as individuals, as human beings we reach out for justice.

You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature. Whether is it the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist. And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice.

So war talk is way out of line in this court. You're a big fellow. But you're not that big. You're no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders. In a very real sense Trooper Santiago had it right when first you were taken off that plane and [placed] into custody, and you wondered where the press and ... TV crews were, and [he] said, "you're no big deal." You're no big deal.

What your counsel, what your able counsel and what the equally able United States Attorneys have grappled with, and what I have as honestly as I know how tried to grapple with, is why you did something so horrific. What was it that led you here to this courtroom today? I have listened respectfully to what you have to say. And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty and admit you are guilty of doing.

And I have an answer for you. It may not satisfy you. But as I search this entire record it comes as close to understanding as I know. It seems to me you hate the one thing that to us is most precious.

You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not to believe as we individually choose. Here, in this society, the very winds carry freedom. They carry it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are here in this beautiful courtroom. So that everyone can see, truly see that justice is administered fairly, individually, and discretely.

It is for freedom's sake that your lawyers are striving so vigorously on your behalf and have filed appeals, [and] will go on in their ... representation of you before other judges. We care about it. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties. Make no mistake, though. It is yet true that we will bear any burden, pay any price, to preserve our freedoms.

Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow it will be forgotten. But this, however, will long endure. Here, in this courtroom, and courtrooms all across America, the American people will gather to see that justice, individual justice, justice, not war, individual justice is in fact being done.

The very president of the United States through his officers will have to come into courtrooms and lay out evidence on which specific matters can be judged, and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice. See that flag, Mr. Reid? That's the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will. Custody, Mr. Officer. Stand him down.

THE JUDGE

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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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