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Attorney General Eric Holder addressed a congressional committee today regarding his decision to bring Khalid Sheikh Mohammed to Manhattan for trial in the Federal Court for the Southern District of New York. Mohammed is the alleged mastermind of the September 11, 2001 attack on New York City and Washington DC which resulted in the deaths of over 2700 innocent Americans, the vast majority of whom were civilians. The concern this presents to us as American citizens, and the reason I chose this topic to write about today, is the potential it has for blurring the lines between civil and military law and the potential erosion of the rights Americans have when charged with a crime. The 9/11 attacks were an act of war, and as such should be dealt with differently than a domestic crime. Historically these cases have been handled by military tribunals as at the Nuremberg Trials after World War II. These proceedings are designed to punish enemies of the United States for violating the laws of war while engaged in hostilities. Tribunals are conducted in a manner that protects the intelligence assets and methods used to defeat our enemies. For example, in the trial of Zacarias Moussaui, the "20th hijacker" on 9/11, the prosecution was obliged to turn over to Moussaoui's attorney's a list of over one-hundred co-conspirators, some of whom had aided the government in the investigation, or were current sources of anti-terrorism intelligence. That list was later found in the possession of Al-Qaeda operatives, compromising those sources and endangering their lives. Obviously a domestic criminal trial differs in many ways. The accused is presumed innocent and is entitled to certain safeguards. The accused is also entitled to the disclosure of evidence that the prosecution intends to use against them at the trial. They have the right to counsel and the right to remain silent. We have established safeguards under the fourth and fifth amendments to protect citizens from police misconduct, including coerced confessions and self incriminating statements.
If we put Mohammed on trial in a Federal Criminal court, how do we deal with the fact that he was never advised of his Miranda rights? That he was arrested in Rawalpindi Pakistan by a foreign police agency without a United States warrant being issued? How can we use any of his statements against him when they were obtained through enhanced interrogation techniques? The real question becomes, if these rights and requirements are not enforced in this trial, then how can we expect them to continue to be enforced in domestic criminal cases? This is a poorly reasoned decision that will result in either a "kangaroo court" conviction of Mohammed through flouting the procedural safeguards or a precedent that will erode the protections afforded defendants in domestic criminal trials. If they can use Mohammed's coerced confession against him, why can't they do the same to any of us? Military tribunals are established for exactly this circumstance, they are the appropriate vehicle to adjudicate our wartime enemies.
There is too much at risk putting him on trial as a common criminal and I believe it is a mistake that will haunt us in the years to come.
