When Terrorists Go to Trial

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The announcement that Khaleid Shaikh Mohammed and other terrorists affiliated with al-Qaeda will be tried in New York City civilian court drew immediate controversy. This initiative has long been promised by President Obama, and is a sharp departure from Bush-era practices of trying terror suspects in military tribunals or forgoing trials altogether. The trial promises to be a major test for the civilian legal system, raising concerns that state secrets could be exposed during the trial. Supporters nevertheless contend it is a crucial step for the rule of law. What does it mean when the 9/11 "mastermind" goes to court?

  • Easier To Try Financiers  Marcy Wheeler suggests that a civilian trial would make it easier to charge non-combatants who lend "material support" to terrorists, even if we can't prove those people knew exactly what they were financing. Civilian trials of terrorist would "give wide leeway to prosecutors to charge those for whom intent to commit terrorism may not be easy to prove." Wheeler cites legal precedent that "material support charges were not a violation of the law of war," which means such financiers would be much tougher to charge in a military tribunal.
  • Other Countries Try Terrorists  Glenn Greenwald notes that many countries publicly try terrorists. "People in capitals all over the world have hosted trials of high-level terrorist suspects using their normal justice system. They didn't allow fear to drive them to build island-prisons or create special commissions to depart from their rules of justice." He points to terrorist trials in Spain, Britain, Indonesia, India and Israel. "It's only America's Right that is too scared of the Terrorists -- or which exploits the fears of their followers -- to insist that no regular trials can be held and that 'the safety and security of the American people' mean that we cannot even have them in our country to give them trials." He says of critics of an open trial, "Some are scared themselves; some are both scared and eager to exploit fear to justify tyrannical policies; and some are being largely exploitative. Whatever the true motives of each, fear is a driving fuel of their political movement."
  • Risks Releasing State Secrets  John Yoo, whose work in the Bush-era Department of Justice helped clear the way for waterboarding and wiretapping, sums up in the Wall Street Journal concerns that an open trial could compromise state secrets. "Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about." He concludes, "military commissions could guarantee a fair trial while protecting national security secrets from excessive exposure"
  • 'Restoring Moral High Ground'  CNN's Paul Cruickshank argues, as do many supporters of open trials, that they would improve troubled image abroad. He focuses on the possibility of a trial of Obama bin Laden, which would likely be even riskier than Mohammed's impending trial. "While the forthcoming trial of Khalid Sheikh Mohammed and several figures allegedly involved in plotting the 9/11 attacks in New York will be helpful, nothing would help more than if Osama bin Laden were captured, afforded full due process and put on trial. It would be nothing short of a watershed moment, doing much to restore the public's confidence in American institutions and the rule of law after years of being told that they were too quaint for the challenges of a new era. And it would go a long way, too, in restoring the moral high ground for the United States in the court of global opinion."
  • Criminals Not Warriors  Matthew Yglesias advocates for treating terrorists as criminals, not soldiers, by trying them in civilian court. "In political terms, the right likes the war idea because it involves taking terrorism more “seriously.” But in doing so, you partake of way too much of the terrorists’ narrative about themselves. It’s their conceit, after all, that blowing up a bomb in a train station and killing a few hundred random commuters is an act of war," he writes. "A lot of people in the world are interested in glory, and willing to take serious risks with their lives for its sake. Insofar as possible, we want to drain anti-American violence of the aura of glory. And that means by-and-large treating its perpetrators like criminals."

This article is from the archive of our partner The Wire.