9/11 trial could become a parable of right and wrong

Before worldwide audience, both prosecution, defense to seek control of narrative

Washington Post Staff Writer
Sunday, November 15, 2009

NEW YORK -- If it happens, the trial of Khalid Sheik Mohammed will make for riveting drama amid the dry routines of procedure in federal court. Of all the many risks in the contest, the greatest may be the drama itself.

In the narrowest of legal terms, the case against Mohammed -- self-proclaimed author of the Sept. 11, 2001, attacks -- and four co-defendants is about particulars of fact and law: deliberation and intent, deed and consequence, guilt and innocence. Attorney General Eric H. Holder Jr. said on PBS's "NewsHour" that "this is not a show trial," but both sides hope to use the case to define Sept. 11 as a parable of right and wrong.

Prosecution and defense will fight for control of a narrative that is sure to reach hundreds of millions of people. The verdicts drawn across the world may inspire or dismay potential allies, provoke or deter action, and in the end advance or impede the starkly opposing interests of the United States and its radical Islamist foes.

Part of the Obama administration's message is a symbolic break with the most controversial policies of President George W. Bush. Where Bush used the U.S. military prison at Guantanamo Bay, Cuba, as a fortress against domestic and international law, President Obama is bringing the Sept. 11 defendants into independent constitutional courts.

But Friday's announcement that the cases of Mohammed and four other accused Sept. 11 plotters would be tried in civilian court brought no broad departure from Bush's legal bequest. Holder and Obama have only gradually shifted course from "never" to "hardly ever" in granting Guantanamo Bay detainees access to what the attorney general described as a 200-year-old tradition of "faithful adherence to the rule of law" in the judicial branch.

Bush allowed more than 800 terrorism indictments to be handed up by federal grand juries, resisting constitutional protections only for those he declared to be "unlawful enemy combatants." The current administration has granted such rights to six of the 241 detainees who were at Guantanamo Bay when Obama took office, and senior government lawyers have said there is next to no prospect of bringing more than 20 more to trial in any tribunal, civilian or military.

Obama is acknowledging explicitly, as Bush never did, that some defendants will enjoy more legal protection than others, that their rights in military commissions will be inferior to those enjoyed by the few who reach federal court.

Though the anniversary went unmarked, Holder's news conference Friday came eight years to the day after Bush issued the foundational order on Nov. 13, 2001, for military commissions and unlimited detention without charge. In many respects, including the presumption that the president is the decider, that order lives on under Obama. Administration officials acknowledge in interviews that considerations of security and politics will bar the great majority of Guantanamo Bay detainees from any courtroom. Scores will be confined until a third country agrees to accept them, and perhaps two dozen more are expected to be held indefinitely without charge.

For all that, according to Georgetown University law professor David Cole, Mohammed's civilian trial marks "a sea change, and an extremely important one, because it's absolutely critical that whatever sentence is imposed . . . be seen around the world as legitimate and not fixed, and the military commissions have been so fraught with difficulties that the presumption in world opinion is that they are going to be unfair."

As political theater, the Sept. 11 trial is far more elemental than a dispute about the distinctions between Obama and Bush.

For a domestic audience, the case enables the government at last to hold someone responsible for the catastrophe. Prosecutors will tell a story of innocence and evil, of indiscriminate mass murder that struck down foreigners as well as Americans, Muslims as well as adherents of other faiths. Mohammed's conviction would offer an antidote to the narrative of weakness that left the world's last superpower helpless to find and punish the ultimate perpetrator of the crime, al-Qaeda leader Osama bin Laden.

Mohammed will not be allowed the satisfaction of seeing the devastation he wrought -- the concrete flatland at Ground Zero. FBI agents and U.S. marshals will fly him in the dark of night to a military terminal at Westchester County Airport, and by helicopter from there to Lower Manhattan. But he will end up in a courtroom, as Holder noted, "just blocks away from where the twin towers once stood."

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