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A terrorism trial's myths

By Andrew Cohen
Saturday, November 14, 2009

It's official. Sooner rather than later, Khalid Sheik Mohammed, an al-Qaeda leader who by all accounts spearheaded planning for the Sept. 11, 2001, terrorist attacks, will stand trial in a federal civilian court near the scene of the crime.

A Mohammed trial for Sept. 11 crimes -- the case might actually be styled United States v. Mohammed -- could be one of the biggest legal landmarks in American history. It's not surprising that bringing one of the "faces of terror" to within blocks of Ground Zero would generate a lot of fear, trepidation and political hysteria. So let's try to separate sizzle from steak. Here are six myths about Mohammed and his trial that ought to be destroyed:

-- One: Mohammed's lawyers are going to rely on the fact that he was waterboarded to get his case dismissed. Fact: Ain't gonna happen. Depending on who is running the show (Mohammed wanted to represent himself at his military tribunal at Guantanamo Bay), it's likely that the government's post-capture treatment of Mohammed will be a factor in the trial. But it won't determine the outcome, especially if the government does not seek to introduce any of Mohammed's post-torture statements to jurors. The fact that the feds are bringing him to New York to stand trial indicates that they have plenty of other evidence that they can use to get their conviction.

-- Two: Mohammed's judge won't be able to find an impartial jury. Fact: Media saturation has made jury selection in America a perversion of what it once was. Judges and lawyers no longer even pretend that they are seating jurors who don't have preconceived notions about a case. All they ask of jurors is that they be able to set aside their pre-judgments and fairly evaluate the evidence shown at trial. Under this low standard, Mohammed will get a jury, and, after he's convicted, the jury's verdict almost certainly will be upheld on appeal if the defense challenges its fairness.

-- Three: Trying Mohammed in New York will significantly raise the risk of another terrorist attack there. Fact: No one can determine how big that increased risk would be. But New York has long been able to safely host trials of terrorism suspects -- including the trial that followed the 1993 attack on the World Trade Center -- and its security systems are among the world's finest. I have seen, during the Zacarias Moussaoui trial in 2006, just how intense security can be in terrorism cases. It's awe-inspiring.

-- Four: The transfer of Mohammed to a federal civilian court is a concession of defeat by the government and a soft-on-terror approach to suspects. Fact: The Bush administration tried to prosecute these people in military tribunals but wasn't able to come up with a set of rules that were deemed constitutional. As a result, six years after Mohammed was apprehended, he still hasn't been convicted. A civilian trial is the best chance of ensuring conviction and sentencing. I don't consider that a defeat. I consider it progress. We are one step closer to the end of this guy's story. Remember, too, that the Republican senators who are crying loudest now about this civilian trial were the ones who precluded the use of military tribunals by insisting that they be constitutionally unfair to defendants.

-- Five: Mohammed will be acquitted on some technicality endorsed by a federal judge. Fact: After eight years of reporting on terrorism law, I am not aware of any judge, anywhere, who is eager to pervert the law to give Mohammed a break. The idea that the federal courts are soft on terrorism is unfair to the hundreds of jurists who have repeatedly endorsed government policy on terrorism, both before and after the 2001 attacks. Capital murder suspects get off on "technicalities" (read: constitutional rights) far less often than you see in prime time. And even if Mohammed is somehow acquitted, which isn't going to happen, the feds will then immediately pick him up and put him back in the military brig.

-- Six: Mohammed will turn his trial into political theater. Fact: Yes, he will try. But he will mostly fail. There are many rules in place to ensure that Mohammed behaves in court. There is upside here, too. It seems likely, given Mohammed's in-court conduct at Guantanamo Bay, that he will proudly declare in front of judge and jury his allegiance to al-Qaeda and his involvement in the Sept. 11 attacks. If this occurs, it will make it easier for jurors to convict him and for the appellate courts to endorse his sentence.

The writer is chief legal analyst for CBS News.

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