Prosecution of terrorism suspects prompts tough questions

Saturday, November 14, 2009

ONE FACT has largely been glossed over in the debate triggered by the Justice Department's announcement that it will prosecute some terrorism suspects in federal court: After more than six years in custody, Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will finally be brought to justice in a forum that is unquestionably legitimate in the eyes of most of the world. The move represents an important step for the victims, their families and the country.

The savagery wrought by the Sept. 11 attackers was an act of war -- a reality that the administration must not diminish. Yet choosing federal court over a military commission seems reasonable in this case. Offenses most often are prosecuted in the jurisdiction where they occurred, and federal trials long have been preferred over military courts for crimes in which the victims are largely civilian.

In addition, flaws that might hobble other federal prosecutions are unlikely to be fatal in this proceeding. For example, neither Mr. Mohammad nor his co-defendants were read Miranda warnings that instruct suspects of the right to remain silent and the right to an attorney. Such a failure could result in the suppression of incriminating statements made by the suspect. But statements made by Mr. Mohammed to U.S. law enforcement officials were already unlikely to be introduced because they were coerced through waterboarding and other abuses. The administration apparently feels comfortable that it has enough independent, untainted evidence to win conviction against all five defendants. It will surprise no one if Mr. Mohammed, who tried to plead guilty during a truncated military proceeding last year, simply admits his guilt in hopes of being executed in a quest for martyrdom.

The decision to try five other suspects in military commissions signals a recognition that federal court is not always the best, or even an appropriate, venue. The administration directed toward military commissions suspects who are believed to have carried out or plotted terrorist acts overseas against military targets. Among the five are Abd al-Rahim al-Nashiri, accused of coordinating the deadly attack on the USS Cole in 2000.

The reasonableness of the administration's approach is predicated on the assumption that all of the defendants will be convicted and sentenced to life in prison, if not death. But what if Mr. Mohammed is acquitted as a result of a technicality? Would the administration release him? The answer is no; he would probably be detained again and without any formal process. This is unacceptable. The government should have the flexibility to detain dangerous suspects who cannot be tried and those who may escape conviction in a court of law but remain a threat. But that must be done with strong protections in place, including vigorous judicial oversight. The administration and Congress have yet to grapple with the need for legislation to provide such a system.

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