Bring Sheik Mohammed's trial to D.C.

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By Thomas Penfield Jackson
Friday, February 26, 2010

For reasons I have some difficulty appreciating, the city of New York has rejected Attorney General Eric Holder's plan to try Khalid Sheik Mohammed in Manhattan. True, the trial will be expensive, but much of the cost will be borne by the federal government, not the city hosting the trial. And true, the trial would once again make New York an enticing target for a terrorist attack, but New York is always an appealing target for attack.

For that matter, so is Washington -- but I submit that the U.S. District Court for the District of Columbia is the most appropriate alternative forum for this trial. KSM's crimes were committed against the entire nation, and it is fitting that the nation's capital should host his trial.

The attorney general should reject the suggestion that Mohammed be tried by a military commission at Guantanamo Bay or anywhere else. His crimes were civil, not military. Mohammed owed no allegiance to any flag, nor did he wear the uniform of any country. He answered to no code of military honor or of the law of war. His targets and victims were innocent civilians who had never sought to harm him. His weapons were four stolen commercial civilian aircraft. He was not captured on a battlefield; he was hunted down like any common felon, hiding in disguise among civilians in a city far removed from military activity.

The U.S. District Court in Washington has 15 able and experienced trial judges available for the case. I am sure my former colleagues on the court would not appreciate the extra work the KSM trial would require, but they have all become intimately familiar in recent years with the problems of the administration of justice in the age of terrorism. Moreover, most of them have tried high-profile, protracted and complex criminal cases, some of them capital cases. They have distinguished themselves and their court and are a credit to the image of American justice. It is no disparagement of the military officers who might constitute a military commission assigned to try KSM to say that they have neither comparable experience nor stature in the eyes of the world.

The Justice Department has been rumored to be concerned with an alleged reluctance of D.C. juries to impose the death penalty, but no prosecution should ever be undertaken for the primary purpose of putting the defendant to death. The goal is a fair trial. Obtain the conviction, and the penalty will take care of itself. (In KSM's case, it could never be less than life in a maximum-security prison without parole.)

My experience with D.C. juries was generally favorable. Jurors were attentive, carefully followed my instructions on the law and returned verdicts in numerous cases consistent with voluminous and complicated evidence. A highly competent panel of prosecutors has reportedly told the attorney general that it is convinced it has sufficient admissible, credible and untainted evidence to convict KSM of the criminal conspiracy behind the Sept. 11, 2001, attacks and most of its substantive criminal acts. There is virtually no possibility of an acquittal or even a hung jury.

A public trial in a civilian federal criminal court would demonstrate to the world, once again, that the United States, applying its well-respected standards for fairness, can convict terrorists as the common criminals they are. There is no more appropriate forum than the D.C. federal district court.

The writer served for 22 years as a judge in the U.S. District Court for the District of Columbia before retiring from the bench in 2004.


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