April 8, 2011

It’s official. Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will be tried by a military commission at Guantanamo Bay.

He will not be tried in Manhattan in the shadow of the World Trade Center. He will not be tried before the vast majority of the victims’ families. Nor will he be tried in any federal court. Instead, he will be tried offshore in a military commission process established in 2009 and yet to be tested. It is likely that he will be convicted of conspiring to plan and commit the attacks of 9/11 and that, he, along with his four co-defendants, the other 9/11 detainees at Guantanamo, will be given life sentences, if not the death penalty.

For those of us who have fought vociferously for the use of the federal court system to try terrorism suspects, the Obama administration’s decision is, on its surface, a defeat. The numbers make it clear: Since the Sept. 11 attacks, 174 individuals have been convicted of jihadi-related terrorism in federal court, an 87 percent conviction rate, according to the most recent figures from the NYU Center on Law and Security terrorist trial report card.

From the early 1990s on, the courts have learned how to handle the challenges of terrorism cases, from classified or tainted evidence to the relevance of al-Qaeda’s strategic and tactical goals. The abandonment of the hard-earned professionalism of the judges, prosecutors and defense attorneys is a loss.

But it is not a defeat for justice itself. It is time to give up our long-standing protest and consider the good that can come from these trials — even if they are held at Guantanamo, and even if they are conducted by the military.

In prosecuting Mohammed, we will be trying the individual without whom there presumably would have been no 9/11 attack; the fact that he is secondary to Osama bin Laden in al-Qaeda’s hierarchy does not reduce his guilt. In a sense, he is the Eichmann of the attack, and his trial is no less important than was that of Hitler’s operational director.

Trying Mohammed and his co-conspirators for a crime that took place 10 years ago can only be seen as a positive. It is unfair that the country has waited this long to bring to justice anyone directly linked to 9/11. If part of the purpose of trials is to bring closure to the open wounds that result from wrongdoing, then the trial matters more than the venue, the jurisdiction or even the system itself.

The country’s need for some sort of closure around the Sept. 11 attacks was illustrated in part by the fear of having this trial in Manhattan. Although it is likely that few victims’ families will now be able to watch the proceedings in person, they will know what is happening, and they will be able to achieve some sense of justice and begin to heal.

There is a further benefit. The details of the 9/11 conspiracy remain a mystery to much of the American public. The trial will turn mystery into fact.

At present, we know generally about bin Laden, al-Qaeda’s determination to harm the United States and the failures of U.S. intelligence. But we don’t know details about these five men and their step-by-step intersection with the attacks — details that were outlined in the criminal indictment that was unsealed in New York this past week. The indictment lists the sequence of activities that made up the attacks and highlights the criminality of the conspiracy. Presumably, those facts will be central to the evidence presented at trial at Guantanamo.

The 9/11 attacks were a carefully conceived and coldheartedly implemented plot of immense destruction. They were not the work of men with superhuman powers, as al-Qaeda terrorists are often portrayed. Better knowledge of the story will not diminish the magnitude of the harm, but it will probably diminish the powerful mystique that so often surrounds al-Qaeda. Reducing the organization to flesh-and-blood figures, to individuals rather than a vast and dangerous specter, will be hugely significant in teaching the country that, although al-Qaeda is an enemy that arguably perpetrated the worst crime in American history, it is not invincible.

Admittedly, there are numerous pitfalls that threaten the military commission system. These trials will differ from those in the federal system in several ways. They will rely on a panel of at least five military judges, and the evidentiary standards will not be the same as those in federal court, though it is unlikely that evidence attained by torture will be allowed. There will be broader allowances for hearsay, and access for families to view the proceedings will be more limited.

In addition, there are worries — which would come with any trial — about giving a platform to Mohammed and his ideological pronouncements. Even the possibility of the death penalty is problematic, as he has expressed a desire to be martyred. In addition, the judges must able to keep the defendants and the courtroom under control, and the track record of trials at Guantanamo has fallen well below standards for evidence, legal tactics and courtroom decorum.

The fact is that this trial is going to take place. It’s not ideal. I would have preferred to see the case in the civilian courts. But a military trial is far preferable to the perpetual limbo of indefinite detention without trial — the very definition of Guantanamo.

The trial of Mohammed and his co-conspirators will signify a step forward in the nation’s ability to counter terrorism in a rational fashion. Rather than assume that the proceedings will fall below the standards of federal courts, let’s expect wise judgment in place of retributive justice. Let’s look for an enlightened use of the leeway provided by the Military Commissions Act. Let’s hope that, despite the unique limitations and allowances of that law, the presiding judge will keep this trial as close to the federal standards as possible.

These proceedings, nearly 10 years in the making, are likely to set the precedent for how this country tries terrorism suspects. Although it is outside the federal justice system, this trial could begin to restore the nation’s confidence in its ability to administer justice to even the most vile criminals — a confidence that may one day return trials for detainees in the war on terror to the nation’s long-tested federal courts system.

Karen J. Greenberg, executive director of the Center on Law and Security at the New York University School of Law, is the author of “The Least Worst Place: Guantanamo’s First 100 Days.”

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