Provocation of the Day: Intellectual Honesty and Terrorism Trials

Just a provocation, or, less provocatively, food for thought: The backlash against civilian terrorism trials, in response to the only-partial conviction of accused embassy-bombing conspirator Ahmed Ghailani, says a lot about the conflicting desires at play in deciding where to try such accused criminals, and hints that elements of the venue debate are a sham.

In selling the concept of civilian trials to the public, Attorney General Eric Holder sought to convince Americans of a civilian jury's ability to deliver convictions, citing previously accused terrorists who had been convicted by federal prosecutors in civilian courts.

At a congressional hearing last November, Holder pledged to win convictions against Khalid Sheikh Mohammed and the other alleged 9/11 conspirators: "Failure is not an option," he said. "These are cases that have to be won. I don't expect that we will have a contrary result."

It seems to be the main concern of those who oppose civilian trials for suspected terrorists: that civilian courtrooms will not be able to deliver convictions. Complementary fears, of course, are that a trial in the U.S. would pose a security threat (or, were it to be held in Manhattan, emotionally scar the city once again), and whether it's safe to hold convicted international terrorists in domestic supermax prisons. But the warning issued by Rep. Peter King in the wake of Ghailani's only-partial conviction--that this result, in particular, reveals a lack of wisdom in civilian trials--speaks to a fear that civilian courtrooms simply can't deliver the result King, for instance, wants.

Desire for the certainty of conviction, at its heart, is at odds with a desire for application of judicial process. The need to surely find someone guilty is not compatible with the need to apply the process of assessing guilt.

Justice and punishment are separate but overlapping concepts. One deals with how we treat those responsible for 9/11; the other deals also with how culpability is determined and agreed upon.

Complicating this essential difficulty is the fact that the man responsible for deciding where to try these accused terrorists, Holder, is simultaneously responsible for selling his decision to the public AND for securing a conviction in the end. From that conflicted role, we get a confused pairing of messages like: faith in the open American justice system, along with promises of a guilty verdict. Being responsible for a conviction, Holder can, potentially, look at the difficulties in convicting Ghailani--the why of his acquitted counts--and decide on a different process entirely. Or, he can simply look at the result.

Maybe due process and full rights should not be afforded to accused international terrorists. Military tribunals would offer a judicial process that does not afford such full rights; a looser standard of evidence would be employed.

But if a conviction is all we want--and if that is our only guiding measure, if the nuances of evidentiary standards go largely ignored, and if it is simply the failure to convict Ghailani on all counts, rather than the process-related difficulties of how federal prosecutors failed to secure it, that irks the critics of civilian trials for the accused mass-murder KSM--then we have to be able to admit that punishment, rather than an assessment of guilt, is at the end of the day what we're after.