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Will the White House reverse its decision on civilian trials for the 9/11 terrorists?

Khalid Sheikh Mohammed

Khalid Sheikh Mohammed

The Huffington Post is reporting today:

In a potential reversal, White House advisers are close to recommending that President Barack Obama opt for military tribunals for self-professed Sept. 11 mastermind Khalid Sheik Mohammed and four of his alleged henchman, senior officials said.The review of where and how to hold a Sept. 11 trial is not over, so no recommendation is yet before the president and Obama has not made a determination of his own, officials said. The review is not likely to be finished this week.

Officials spoke Thursday on condition of anonymity because they weren’t authorized to discuss private deliberations.

Attorney General Eric Holder decided in November to transfer Mohammed and the four other accused terrorists from the prison at the U.S. naval base at Guantanamo Bay, Cuba, to New York City for civilian trials. That was initially supported by city officials, but was later opposed because of costs, security and logistical concerns.

When opposition ballooned further into Congress and an attempted Christmas airline bombing brought massive scrutiny to Obama’s terrorism policies, the administration said it would review Holder’s trial decision and consider all options for a new location.

In addition to local opposition to a trial, the administration faces pressure on its goal of closing Guantanamo on another front. Republicans in Congress have proposed barring prosecutions of terrorism defendants in federal courts or in reformed military commissions located in the United States.

Rep. Peter King, R-N.Y., has proposed legislation that would prevent the Obama administration from putting Mohammed and other terrorists on trial in any American community. Sen. Lindsey Graham, R-S.C., joined by about half the Senate’s Republicans and a few Democrats, has made a similar proposal.

Separate from the internal trial review, the White House is in still-ongoing negotiations with lawmakers over those proposals, including how to secure funding from Congress to hold terrorism trials and to close the Guantanamo prison and replace it with another facility in the United States.

The Obama administration views civilian trials for terrorists as an important demonstration of the U.S. commitment to rule of law. Officials also have cited the numerous terrorism trials already held successfully in U.S. criminal courts.

This would, I believe, be an unfortunate development. What message would such a reversal send to the rest of the world? That our criminal justice system is “too good” for these persons? It would have been better if the initial decision had been to op for military trials. But if the Administration now reverses, it makes the United States appear all the more to be seeking a forum most conducive to a conviction (even though, of course, military trials themselves will not guarantee such conviction.)

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One Comment

  • William "Chris" Yount says:

    This is such a difficult decision and I don’t think there’s a clear cut correct answer. The tribunals glorify the terrorists and make it more difficult to give the impression of an impartial trial. That said, a civilian court isn’t necessarily going to give a more fair trial than a tribunal, puts it in the cross-hairs of terrorist organizations and some question whether the courts have the capability for dealing with large numbers of these cases (I don’t know if I have the expertise to qualify or dismiss that claim).

    In the end, I believe that tribunals are the wrong way to go, but I don’t envy those that have to make the decision.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.