Commentary: Federal court can handle 9-11 trials

Alleged al Qaida kingpin Khalid Sheik Mohammed, in detention at Guantanamo Bay, Cuba. (Photo courtesy Jarret Brachman via Miami Herald/MCT)
Alleged al Qaida kingpin Khalid Sheik Mohammed, in detention at Guantanamo Bay, Cuba. (Photo courtesy Jarret Brachman via Miami Herald/MCT) Courtesy Jarret Brachman

Reasonable, intelligent people can disagree over whether five accused 9-11 conspirators should be tried in federal courts in New York City for that day's horrendous destruction.

Khalid Sheikh Mohammed, Walid Muhammed Salih Mubarak Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali and Mustafa Ahmed Al Hawsawi could have been brought before the military commissions that have evolved from lengthy struggles over proper procedures for prosecuting suspected terrorists detained at the Guantanamo Bay prison.

But too much of the criticism against Attorney General Eric Holder's choice of civilian federal courts borders on apoplexy rather than reasonable disagreement.

Let's be clear about what a federal trial will and won't be.

It will be public.

One of the great strengths of the American criminal justice system is the public oversight that imbues proceedings with legitimacy and accountability.

The evidence is presented for all to see. Observers can determine whether the prosecution, defense, judge and jurors have acted properly. Defendants can confront their accusers and question the evidence in the light of day.

But federal trials are not televised. I generally argue that they should be. But even if they were, they wouldn't automatically devolve into circuses. Judges have substantial power to maintain order in their courtrooms. They can cut off rambling defendants, sanction disruptive outbursts, even close parts of a trial if sensitive information is presented.

In fact, Holder pointed out during a Senate Judiciary Committee hearing Wednesday that federal law lays out strict procedures for the handling of classified material, such as discussion of intelligence-gathering methods, to prevent harming national security.

And if Mohammed continues to boast of plotting 9-11 and a litany of other attacks, Holder said: "I have every confidence the nation and the world will see him for the coward that he is. I'm not scared of what Khalid Sheikh Mohammed will have to say at trial."

It will provide a better understanding of the terrorist threat and our response to it.

Almost 200 terrorists have been tried in civilian courts, and the worst among them have been convicted, including the perpetrator of the first World Trade Center bombing.

Holder said those who worry that the accused 9-11 conspirators will get off by exploiting constitutional protections haven’t seen all the evidence he reviewed in deciding that federal court would be the venue "where the government has the greatest opportunity to present the strongest case."

Holder is a former prosecutor and judge, and he could not have moved forward with a criminal prosecution against Mohammed without compelling evidence beyond whatever interrogators gleaned during repeated waterboardings. It's time for the public to know what the government has uncovered against these alleged terrorists.

Any waterboarding-induced confessions would almost certainly be excluded as coerced. If the government has engaged in other dubious practices, the American public ought to know that, too.

It will demonstrate a commitment to American values.

The 9-11 terrorists murdered almost 3,000 people, most of them Americans, on U.S. soil.

Holder called it an act of war but also a violation of federal criminal law.

Politicians who disagree with his choice of trial venue are accusing Holder and President Barack Obama of ignoring the continuing fight against terrorism, as though they’re oblivious. Worse yet is the malicious and erroneous insinuation that members of the administration would blithely let terrorists go free.

I’d argue that Holder understands exactly what’s at stake.

"We are at war, and we will use every instrument of national power — civilian, military, law enforcement, intelligence, diplomatic and others — to win," he told the Judiciary Committee. "We need not cower in the face of this enemy."

Some rules change during wartime. But fundamental values like fairness and due process can't be traded for vengeance or expedience.

Steven Simon, a fellow at the Council on Foreign Relations, wrote in The New York Times that "highlighting the transparency in our judicial process would strengthen America’s reputation."

And a group of prominent conservatives, including David Keene, chairman of the American Conservative Union, wrote that federal courts "have proven capable of trying a wide array of terrorism cases, without sacrificing either national security or fair trial standards."

If we don’t believe that our institutions are strong enough to deal with the worst of our enemies, then we have more to fear than foreign terrorists.