Op-Ed: 9/11 Military Trial Better Than None At All
NEAL CONAN, host:
And now, the Opinion Page. The Obama administration recently reversed its plan to try Khalid Sheikh Mohammed and others charged with the 9/11 plot in federal court in New York. Attorney General Eric Holder announced that since opposition in Congress made that impossible, the professed 9/11 mastermind will face trial before a military commission at Guantanamo Bay.
The decision angered many who question the constitutionality, the fairness and the wisdom of offshore military trials for terror suspects. In The Washington Post, Karen J. Greenberg, who's long advocated for civilian trials, argued that even a flawed trial is better than no trial at all.
What do you think: Is a trial by military tribunal better than legal limbo? 800-989-8255. Email: firstname.lastname@example.org. You can also join the conversation on our website. That's at npr.org, click on TALK OF THE NATION.
Karen Greenberg is executive director of the Center for Law and Security at New York's University's Law of School(ph) and joins us from our bureau in New York. And thanks so much for coming in.
Ms. KAREN GREENBERG (Executive Director, Center on Law and Security, New York University): Thanks for having me.
CONAN: And you argue some trial is better than no trial, but is no trial really the only alternative?
Ms. GREENBERG: Well, it's possible that no trial would be an alternative. It might be not the only alternative, but it's the alternative as long as he is at Guantanamo. And far preferable to detention without trial, particularly for the mastermind of 9/11 and his co-conspirators, his alleged co-conspirators, seems to me that we should have a trial and we should, instead of protesting it, at this point, work to make it the most transparent and recognizable trial we could have.
CONAN: Well, why not - why accept the decision by the attorney general? Why not say, wait a minute, we still need to have a civilian trial in federal court on U.S. territory?
Ms. GREENBERG: Because we tried that and we failed, and I think at this point we have to recognize the failure. This has been a many-year battle, not just a battle since November of 2009, when Attorney General Holder announced his decision to bring KSM 9/11 trial to federal court in Manhattan. I think it's very important that he be tried.
Khalid Sheikh Mohammed is not just a second in command. He is somebody who has been tied to attacks against the United States since the early '90s. And he's an important person to bring up on charges and to try. It's been more than 10 years since the crimes of which he is originally indicted, and it's time to bring him to trial. It was time a long time ago.
CONAN: But some will say there's a difference between a trial and a show trial, that this is going to be a railroad job. He's just going to be, you know, guilty, bonk, and go away.
Ms. GREENBERG: Well, you know, it's hard - it's interesting that you say that at Guantanamo. I am not a fan of using Guantanamo for trials. The reason is there hasn't been a military commission system of any efficacy. Of nearly 800 detainees, six have been convicted in 10 years. Is that really a record we want to stand by? I think that this military commissions system, which is established under the new Military Commissions Act of 2009, is untried and untested.
And I think what those of us like myself should do right now is pressure the office of military commissions and the government to make these trials as transparent as possible, to back away from some of the exceptions that have been allowed under the Military Commissions Act, primarily the use of hearsay, which is different than what would be allowed in federal courts, and to try to use these trials, if you want them as a show trial, for what can be done in a way that's closest to Article III courts.
I mean, maybe that it's just a pragmatic opinion, but I think at some point you have to get pragmatic and not just be wrapped up in the ideological veneer.
CONAN: Are the rules of evidence the same? Is there any trust in your part that it's going to be a fair trial?
Ms. GREENBERG: I guess, what I want to say is that I don't want to not trust it out of hand. You know, if you're a defense attorney - think about this from the point of view of the defense attorney. If you're a defense attorney and you are facing - and you have a client who is facing trial on terrorism charges, even a lower level than KSM, which anybody that we have in custody would be at a much lower level, your chances of getting him a good defense in federal court are good, but your chances of getting him an acquittal are extremely poor. And that is the way the system works.
So to say that the military commissions system is going to be more railroading than the federal courts is really - that's not really what it's about. It's not just about the end result. And we haven't seen the process. So I would say let's work on working with the attorneys and working with the military commission and who's going to sit on it to try to pressure them to do the right thing.
CONAN: In what way do the procedures differ? Obviously, there's a tribunal of judges, not a jury.
Ms. GREENBERG: There will be at least five judges. If there is a death penalty, there will be, I believe, 12 judges. The evidentiary standards will include an allowance of hearsay, which as you know is not allowed in federal court. And that is a big bone of contention, rightfully so, for defense attorneys who work within the federal system. And there will be a number of other, you know, minor points.
I do not think - and if you read the Military Commissions Act and the analysis of it, that evidence produced under torture will be allowed, which, of course, came up in a recent federal trial of a Guantanamo detainee here in Manhattan. So I think that there's enough leeway that the evidentiary standards can be kept closer to the federal system than some might suspect with the exception that the hearsay allowances could be problematic, unless the judge, presiding judge decides that that will not be the case.
CONAN: And when you talk about these different rules, you talked about torture. Khalid Sheikh Mohammed is one person we do know who was waterboarded, I think, 41 times.
Ms. GREENBERG: Many times. And he - and we do know he was waterboarded. And the question has always been, you know, what evidence can be introduced into court that will not come from anything that he confessed under torture, which waterboarding, in many opinion including mine, is.
I think the understanding about Khalid Sheikh Mohammed is that there is a tremendous amount of evidence, a lot of it procured in this country. A lot of it not necessarily direct testimony from him, but it has to do with emails and just a lot of evidence, data and facts that they've accumulated here.
And there's an assumption that Khalid Sheikh Mohammad will be tried rather cleanly in that regard. I think this is, in fact, what led to Eric Holder's, you know, overreaching statement when he announced that Khalid Sheikh Mohammed would come to federal court. He said that he was, you know, pretty positive about a conviction. And the pushback on that statement from, you know, the top officer of the law in land was rather intense.
CONAN: Let's get some calls in on the conversation. Our guest on the Opinion Page this week, Karen Greenberg, executive director of The Center on Law and Security at NYU School of Law and author of the book "The Least Worst Place: Guantanamo's First 100 Days." 800-989-8255. Email us: talk@npr. And we'll start with Collin(ph). Collin is with us from San Francisco.
COLLIN (Caller): Good morning. Isn't this really just hairsplitting? You mentioned the statements by Attorney General Holder that he was confident that he would get a conviction. I mean, there's no question, really, is there, that whether it had been a civilian trial or by commission that a guilty verdict was preordained. Isn't the only question whether Khalid Sheikh Mohammed is a threat to his life in detention or is executed by the U.S. government?
Ms. GREENBERG: I would say that the word preordained is probably the one that's at issue. If there is a fair trial, the likelihood is that he will be convicted. The strong likelihood is that he will be convicted. That doesn't mean we shouldn't have a trial. And I think you're right. The big issue here is going to be as it was in the Moussaoui case at the very beginning of the war on terror whether or not the death penalty will be pursued.
CONAN: Thanks very much for the call, Collin.
There is also the question of the process of the trial. This is not going to be inexpensive. Some people are concerned: Will evidence be presented at the trial, which will change our perception of what happened at 9/11? And will the trial provide an opportunity for Khalid Sheikh Mohammed to have a world stage to announce and talk about his ideology?
Ms. GREENBERG: Well, I think those are two extremely different things, and I think you can expect both of them at the trial. The first is what - the place that Khalid Sheikh Mohammed holds in American history and in the history of the war on terror. It's something that Americans don't really understand, in part because he's seen as the operational head of the 9/11 attack. But as I said before, Khalid Sheikh Mohammed's history and his intentions towards the United States to do harm from the early '90s on, from the first World Trade Center on, have been pronounced, have not always been under the purview of Osama bin Laden, and it's something the country should know about. And we'll feel a sense of justice once this trial takes place.
The issue of KSM's using the trial to grandstand is something that I frankly don't understand why Americans are so afraid of this. I guess -I mean, there are enough calls on the Internet and elsewhere for violence. There is enough disrespect and hateful things said about and to the United States. I think if anything, he may look to be less of a compelling figure to those who might turn themselves to violence in the name of jihad. So I'm less skeptical and less concerned about that.
I think people should know who this man is. And we may get less of that at Guantanamo, and I think it's one of the things that we should push for - to know as much about what goes on there as we could possibly know. And those kinds of determinations about access of the press, access of the public, et cetera, have not yet been made.
CONAN: There's a link to Karen Greenberg's piece, "Even at Guantanamo, a 9/11 trial can serve justice," on our website. Go to npr.org, click on TALK OF THE NATION.
And you're listening to TALK OF THE NATION from NPR News.
Let's go next to Randy(ph), Randy with us from Elkhart, Indiana.
RANDY (Caller): Hi. Congress has virtually ruled out a - the possibility of a trial in the country. But I think that even with the military tribunal, there's a good chance he'll walk due to not being permitted a lawyer, Geneva conventions, things like that. So Congress has, kind of, put itself in a bad position on this one, too.
CONAN: Is that a real possibility, Karen Greenberg?
Ms. GREENBERG: I don't know. I think that's interesting to think that that might happen and that this whole no preemptive strike of Congress's might fall flat.
CONAN: And just to remind people, Congress passed a law saying the Justice Department could not spend any money to transport people from Guantanamo Bay to the mainland United States for a trial.
Ms. GREENBERG: Right. And how much effort and how much interest will be put by the defense and by the international community on the issue of torture remains to be seen. And what impact that would have on the case remains to be seen.
The precedent that was established in federal court in the Guantanamo trial of Ahmed Ghailani here earlier this year and late last fall, that precedent is not going to work at Guantanamo because the judge, Judge Lewis Kaplan, made a distinction between everything that happened prior to him coming to the United States, and that what happened when he came to the United States.
Now they could define Guantanamo as the, you know, they could be the CIA on one side and then everything on the other side of that would be -have, you know, not be allowed in the trial because it would be deemed irrelevant to this particular trial. But they're going to have to get through that hurdle and make their own decisions about it.
CONAN: And even if Khalid Sheikh Mohammed or his - one of his co-defendants should be found not guilty by the military court, could he walk?
Ms. GREENBERG: According to the Obama administration, they have been very firm about this from the beginning. And their opinion, they reserve the right to something that they have termed presidential post-acquittal detention, which would mean that, you know, even if acquitted, they can hold certain individuals. They have not said this to my knowledge specifically about Khalid Sheikh Mohammed. It was said even in federal court about the detainee I just referred to, Ahmed Ghailani.
To my mind, if you're going to have a trial, and when you have a trial, there is even remotely a possibility of acquittal in any trial, even of mass murderers, the possibility of detention afterwards is - still violates the basic premises of American jurisprudence that it's hard to absorb that. But I'm - but I think we should let this play itself out and make that decision if president needs to make it, let's make it then.
But to think that far ahead in such a disturbing way is just - I think we have to take everything here one step at a time with the idea, at least for me, that indefinite detention is really a line you do not want to cross as a democratic country.
CONAN: One last call. Let's go to Tim, Tim with us from Buffalo.
TIM (Caller): Hi. I think a big mistake was made in doing this militarily because it seems to me that before - in a civilian court, these people could be seen as international criminals. Now, it's almost like they're being glorified as warriors. So much worse at the present because there's this, sort of, hysterical paranoia, no, they must not set foot on our soil, like this is Hannibal Lecter. This is some superhuman that none of our security measures could possibly handle. And we're going from sort of legitimizing them as warriors to mythologizing them. And how does this play across the world and sort of, you know, the battle for hearts and minds?
I realize - I agree with your guest that the die is cast on this one. We have to do the best we can on it. But there are a lot more people in Guantanamo, and I would really rather see these people treated as international criminals.
CONAN: And I don't mean to cut you off, Tim. I just want to give Karen Greenberg a short chance to respond.
Ms. GREENBERG: You're raising a lot of points. One of them is something that we haven't ever really talked about, which is another kind of international court to try defendants in the war on terror.
And, I mean, the second thing is I agree with you wholeheartedly that we have over-exaggerated who these individuals are. They are extremely dangerous, violent, harmful criminals. And to think that they have powers beyond that of other extraordinarily harmful human beings who are alleged to have carried out certain attacks is not doing ourselves a service.
CONAN: Karen Greenberg, thanks very much for your time.
Ms. GREENBERG: Thank you.
CONAN: Karen Greenberg directs the Center on Law and Security at the New York University Law School. There's a link to her op-ed at our website. Go to npr.org, click on TALK OF THE NATION.
Tomorrow, why many African-Americans are leaving Northern cities and putting down roots below the Mason-Dixon Line. We'll also mark the 150th anniversary of the opening shots at Fort Sumter.
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