On April 4, 2012, the Pentagon cleared the way for the trial of Khalid Sheikh Mohammed to proceed at Guantanamo Bay, Cuba. By now, the general public is aware that Mohammed and his four indicted co-conspirators were primary planners of the September Eleventh attacks that resulted in nearly three thousand civilian deaths. Prosecutors have stated their intentions to pursue the death penalty, which based on the great deal of adverse evidence, is all but a forgone conclusion. Yet, it has been a painstaking process to reach this point. The process has been plagued with legal and political turbulence because of the polarizing questions of the role of military commissions, presidential power to establish such commissions, jurisdiction of the courts, and the procedural protections afforded to defendants. Mohammed’s trial likely will lead to subsequent appeals that could delay any finality for an indeterminate number of years.
The whole Guantanamo Bay saga
is fundamentally a values question: are military commissions the proper venue
for the most important terrorism trials in a generation? Why are civilian courts inadequate? There are complex practical and
constitutional questions at stake, which depending upon the viewpoint adopted
will lead to diametrically different determinations. Let’s assume that the ultimate result for Mohammed and his
co-conspirators would be exactly the same in both venues. The question does not become what
justice is served, instead what precedent is set.
Approximately a year ago, Attorney
General Eric Holder, forcefully called out Congress for meddling in what is
inherently an executive power – the power to prosecute. Holder claimed that civilian courts have
proven to be effective in other terrorism trials and often result in longer
sentences in the case of guilty verdicts.
For example, when Salim Hamdan, Osama bin Laden’s driver, was tried
before a military commission he received a sentence of time served plus six
months imprisonment. In another
case involving an alleged terrorist being tried in civilian courts, two men
were sentenced to over ten years in federal prison for sending blankets and
backpacks to the Mujahedeen in Afghanistan.
Attorney General Holder
agreed to forego a civilian trial for Mohammed after Congress and local officials
expressed their disapproval and intent to block it. Holder and President Obama argued the limitations placed on
the Department of Justice were “unwise and unwarranted” since they were
designed to limit the options available to the President and raised possible
constitutional questions if fought.
Instead, the President and Attorney General acceded rather than forced a
constitutional showdown over Congress’s interference into prosecutorial decision-making.
Arguments against the Obama
Administration’s position tended to surround public safety, namely that it
would heighten Al Qaeda’s desire to target New York City, the location of
Khalid Sheik Mohammad’s initial trial, and it would be a logistical nightmare for
coordinating security. The more
worrisome possibility, though, was a federal judge or jury might determine that
certain evidence was obtained using torture, thus excluding its admissibility and
undermining the possibility of securing a death sentence. Other critics, such as Senator Lindsey
Graham, argued that civilian trials and the associated defendant rights, such
as Miranda warnings, limit the flexibility of intelligence analysts to
interrogate terrorist suspects with whom the United States is at war.
The views expressed by the Obama
Administration critics fail to properly consider the precedent being set. The Constitution mandates a separation
of powers among the branches of government. There is a vast difference between having a person in
military custody and interrogating them for valid military purposes, and
bringing them into the civilian court system for trial. If procedures are insufficient,
Congress can legislate appropriately.
As this case reveals though, political calculations intervened to
prevent the creation of a sensible middle ground that protects the intelligence
gathering process and prosecutorial discretion. At an emotional level, let’s face the fact that many people simply do want Mohammed to be tried in a civilian
court, which is an understandable reaction. Regardless, prosecutors should decide who, where, and how to
prosecute – not politicians in the market place for votes.