New Yorkers Disagree Over Plans For Sept. 11 Trial

Guests:

Dafna Linzer, senior reporter, ProPublica

Michael Gerson, author of "Holder's trials and errors"; columnist for The Washington Post; senior research fellow, Institute for Global Engagement

Steven Simon, author of "Why we should put Jihad on Trial"; fellow at the Council on Foreign Relations and co-author of The Age of Sacred Terror and The Next Attack

Attorney General Eric Holder announced that Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the Sept. 11 terrorist attacks, will be tried in a civilian court in New York City. Some argue it will open old wounds, while others insist it will provide closure.

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REBECCA ROBERTS, host:

This is TALK OF THE NATION. I'm Rebecca Roberts, in Washington. Neal Conan is away.

Last Friday, Attorney General Eric Holder announced that Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the 9/11 terrorist attacks, will be tried in a civilian court in New York City. The federal courthouse is just blocks away from where the Twin Towers once stood.

From the moment it was announced, the decision has created controversy. Among the debatable issues are the choice of a civilian court over a military one, the location of the trial itself and Attorney General Holder's possible political motives.

Dafna Linzer, senior reporter at ProPublica, will join us to bring us up to date and explain why this decision has been so controversial. We also want to hear from you. Should Khalid Sheikh Mohammed be tried in military or civilian court, and do you think it should be in New York?

Our number here in Washington is 800-989-8255. Our email address is talk@npr.org. And you can join the conversation on our Web site. Go to npr.org and click on TALK OF THE NATION.

Later this hour, Tom Ricks' reading list for understanding Afghanistan. But first, terrorism on trial.

Dafna Linzer is a senior reporter at ProPublica, an independent, nonprofit newsroom that produces investigative journalism. She joins us from our New York bureau. Welcome to the program.

Ms. DAFNA LINZER (Senior Reporter, ProPublica): Thanks, Rebecca. It's good to be back.

ROBERTS: So what reason did Attorney General Holder give for having a civilian trial in New York?

Ms. LINZER: Well, I think he said that this would be a way to afford justice both for the victims and the families and to give the greatest sense of justice that the United States has to the alleged perpetrators of 9/11. I think they saw that this was a situation in which they were seeking the death penalty for all of the coconspirators of the 9/11 attacks, and they wanted to do that in a federal court.

ROBERTS: Well, let's explain, to begin with, what is the difference between a civil trial in a federal court and a military trial?

Ms. LINZER: I think that's really important, also because what we have now and what we didn't have before the Bush administration, really, are two different options here for prosecuting detainees who have been in Guantanamo Bay.

There was always military court marshal, but the Bush administration invented a new military commission system, which has been reformed and refined under the Obama administration and has yet to fully operate under those new rules.

What you can see in a federal court is what would be familiar to anybody who's - that has seen trials or experienced that. In a military commission, the rules are a little bit different. What can be introduced as hearsay and other evidence is not the same standard, not the same high-bar standard as you would have to meet in federal court.

ROBERTS: And by and large, does a defendant have more privileges in a civilian court?

Ms. LINZER: Absolutely, and more protections. And I think that this is an issue that's really sort of helped fuel some of the controversy that you discussed early on, in that it is not totally clear why some of the detainees are going to federal court and others are going to be tried in a military commission.

As you said, when Holder made the announcement, he also said there would be five detainees who would go before a military commission, and we don't even know where that commission will take place.

ROBERTS: And Holder hasn't explained the discrepancy?

Ms. LINZER: He hasn't. He said that, you know, that he wanted to see, you know, the five specific 9/11 conspirators in federal court. But what is not known is who else among the detainees at Guantanamo will be charged in federal court. Will any other detainees be charged in federal court? Will any other detainees be charged in military court, and on what basis? It's just simply not clear, and the administration has yet to clarify that.

ROBERTS: And what about the location? Why New York?

Ms. LINZER: That's a good question. You know, they could have gone to - they could have gone to Virginia. They could have gone to D.C. They could have gone to two different courts inside New York, but I think that the administration really wanted the symbolism of it. They wanted, as Holder said, to have Khalid Sheikh Mohammed on trial, you know, just steps from where the Twin Towers once stood. I think they felt that that was truly bringing him to justice for the crimes that he is charged with.

ROBERTS: You mentioned Alexandria, Virginia. That, of course, is where Zaccarias Moussoui was tried, you know, a high-profile terrorism case in civilian court. How much of a precedent is that?

Ms. LINZER: That's interesting. I think that some people in the Obama administration are already pointing to that as precedent, and I think that's a bit under challenge. I have heard people inside the Justice Department note that even under the Bush administration, you know, hundreds of people were convicted in federal courts on terrorism-related trials, and, of course, you know, Moussoui is a perfect example.

I think what's different in the Moussoui case and - compared to those who are coming from Guantanamo is that those coming from Guantanamo were picked up on the battlefield. They were arrested by soldiers, sometimes by foreign forces, by intelligence services. Some of them were held in CIA black sites for years and then transferred to Guantanamo.

So it's a little bit of a different case. I don't think there has been a case quite like this that has come before federal court. So I'm not sure that the Moussoui case - it's certainly a case of a terror suspect getting a fair trial, but it's a - he's a different suspect and a different case because he was not ever sent to Guantanamo, and he was arrested on U.S. soil.

ROBERTS: And now, of course, the other thing the location in New York brings up is the possibility of finding an unbiased jury in that jury pool. What sort of precedent are people looking to there?

Ms. LINZER: Yeah, that's an interesting question, and I have heard people wonder, you know, can you really find an unbiased jury anywhere in the United States on the events of September 11th? You know, I'm not really sure that you can.

I think that, you know, one of the things that people are really talking about in New York, too, is not just the unbiased jury pool, but also the security issues, you know, New Yorkers who go down to do jury duty in the same courthouse, and what will life be like in New York, you know, during a trial like this? And I know that Holder and Senator Schumer of New York have already said that they expect to pay back New York the massive amounts of money it will cost the city for protection and police overtime.

ROBERTS: Well, of course, the other thing about New York is that it's a jury pool that has historically been more hesitant to assign the death penalty. That's one of the reasons Moussoui was moved to Alexandria.

Ms. LINZER: Absolutely. And you saw that the administration chose not to seek the death penalty in the other case in which a detainee was sent from Guantanamo to New York a little bit earlier, who - the suspect is accused of conspiring in the attacks on the U.S. embassies in East Africa in 1998.

The administration - in fact, a former administration sought the death penalty for suspects who were convicted of the 1993 bombing of the World Trade Center and sought the death penalty and did not get it from the jury.

ROBERTS: There's also some concern that even short of getting a life-in-prison sentence instead of death penalty that a civilian jury might actually acquit. Is that on anyone's radar screen?

Ms. LINZER: You know, when you go to trial, you certainly always have that possibility, but I don't think that that's a serious possibility. And in this case, the Justice Department has made it clear that they are certainly more than willing to take that risk. I mean, they don't feel that that is a realistic possibility.

ROBERTS: Let's hear from Misaguyo(ph) in St. Louis, Missouri. Welcome to TALK OF THE NATION.

MISAGUYO (Caller): Thank you. Thank you for taking on my call. Can you hear me?

ROBERTS: Yes, we can.

MISAGUYO: Yes. First of all, I would like to - my comment is I 100 percent support the attorney general's decision to bring these people to New York because it clearly - it will demonstrate not only to ourselves but also to the rest of the world that we, as Americans, not only do we speak of these very basic principles of freedom and justice and due process, but we trust them enough that we can follow through. You know, we are not schizophrenic - on one hand, we proclaim them, but then we try these people in some dark corner.

But if this men, these terrorists are brought here and conspicuously tried, I think if nothing else, but it upholds our principles before the world.

ROBERTS: Misaguyo, thanks for your call. He brings up a point that several supporters of this decision have, that we should have the courage of our convictions and have faith in our Justice Department and not try to rig the outcome by hiding it behind an untested military tribunal.

Ms. LINZER: Absolutely. And that's an issue. And I think that, you know, in some respects, you know, you really do see a division here - even among the families, and certainly politically - about whether or not this is the best course of action. But that is absolutely the way the administration is portraying it.

ROBERTS: Well, the political aspects is something that's been interesting to watch because it has fallen along party lines in a way that might not have been expected, with more Republicans criticizing the decision both about the civilian court and the New York location and more Democrats supporting it. What do you think is going on there?

Ms. LINZER: Oh, I think there's a couple issues. I think a lot of this is a fight from the previous administration. I think that the Republicans are very eager to hold onto and strengthen the idea and the legitimacy of military commissions, which the Bush administration began. And I think also that there is - you know, there is a concern in the mind of maybe not necessarily all Republicans, but certainly a lot of conservatives, as well, that going ahead with a trial like this in federal court is really asking for a trial of some of the Bush administration's most controversial policies, such as waterboarding.

Remember, Khalid Sheikh Mohammed was one of the detainees in CIA custody for several years who was waterboarded 183 times. Now, Attorney General Holder has said that waterboarding is torture, and the president seems to agree with that. So there - I think there's a fear that putting him on trial and allowing that waterboarding history and the history of the CIA sites and his detention, that what it will really do is facilitate a discussion in the trial of the Bush administration's policies.

ROBERTS: You're there in New York. What is your sense of whether this controversy is just getting started or whether the sort of worst of it will blow over, and then the drama of the actual trial begins?

Ms. LINZER: I think that's such a good question. You know, we did see this sort of early flare-up in Washington this week, and I think that the White House was pretty happy that the president was out of town while this was all going on.

You know, if a trial takes -you know, if it takes as much as two years to get this trial going, I think, you know, the mood will shift, you know, possibly several times. I think the families, you know, the feelings of the families will change, the feelings of the city will change, you know, possibly several times over. But I do think that it could come back quite dramatically if we do see a trial in the next two years, and I also think it could be interesting, you know, what the politics of it are then.

Remember, if it takes place in 2012, well, that's an election year, and we could see a whole different dynamic to a trial going forward then.

ROBERTS: Dafna Linzer is a senior reporter at ProPublica. Thank you so much.

Ms. LINZER: Thank you.

ROBERTS: Dafna Linzer joined us from our bureau in New York. We're talking about the decision to give 9/11 mastermind Khalid Sheikh Mohammed a civilian trial in a court in New York. Your calls when we return. 800-989-8255 is the number. You can also send us email. The address is talk@npr.org. I'm Rebecca Roberts. This is TALK OF THE NATION from NPR News.

(Soundbite of music)

ROBERTS: This is TALK OF THE NATION. I'm Rebecca Roberts in Washington. Neal Conan is visiting member station WGCU in Florida.

Attorney General Eric Holder testified before the Senate Judiciary Committee yesterday and told them we need not cower in the face of this enemy. Our institutions are strong. Our infrastructure is ready. Our resolve is firm, and our people are ready.

He was responding to questions about his decision to move the trial of Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the 9/11 terrorist attacks, from a military court to a civilian court in New York City.

In a few minutes, we'll hear points of view this: Michael Gerson, senior research fellow at the Institute for Global Engagement and former speechwriter for President George W. Bush will join us, as will Steven Simon, a fellow at the Council on Foreign Relations. And as always, we want to hear from you. 800-989-8255 is the number.

We want to know: Should Khalid Sheikh Mohammed be tried in military or civilian court, and do you think it should be in New York? You can also send us email, talk@npr.org, and you can join the conversation at our Web site. Go to npr.org and click on TALK OF THE NATION.

We turn now to Michael Gerson. He's a senior research fellow at the Institute for Global Engagement and a columnist for the Washington Post. His most recent column is "Holder's Trials and Errors." He joins us here in Studio 3A. Welcome to the program.

Mr. MICHAEL GERSON (Columnist, Washington Post; Senior Research Fellow, Institute for Global Engagement): Thanks so much.

ROBERTS: Why do you think it's a good idea to try Mohammed in civilian court?

Mr. GERSON: I actually don't think it's a good idea to try Mohammed in civilian court. I think it raises all sorts of prosecutorial challenges that really are unprecedented. I think it exposes New York to an increased risk of attack. I think it applies a criminal model to a war and actually confuses some very, very important issues, and I think the Obama administration understands the sensitivities here.

I mean, they attempted to bury the announcement on a Friday, and it didn't work. This is going to be a big issue for a long time.

ROBERTS: In that introduction, I quoted the attorney general talking about being confident in our institutions. In your article in the Post, you say it's a marginal public relations advantage. Why is it only marginal?

Mr. GERSON: Well, it's only marginal because we've already had, for example, the president, who seems to have endorsed the decision of his attorney general, say in an interview yesterday that - assuming that the defendant is going to get the death penalty.

The immediate reaction of the administration and many of his defenders was to say wink, wink, nudge, nudge, we're not really committed to the rule of law. We're committed to the appearance of the rule of law.

We know that we want a fair trial, but we want a certain hanging. And you know, if they don't do that, Americans will see this as an insanely ideological decision. And so, you know, they're downplaying the fact that they're now giving this defendant the rights of every single American when it comes to a federal court, and it's going to create huge problems.

ROBERTS: We are also joined on the line by Steven Simon. He's a fellow at the Council on Foreign Relations and coauthor of "The Age of Sacred Terror and the Next Attack." He has an op-ed called "Why We Should Put Jihad On Trial," and he is joining us from his office here in Washington, D.C. Welcome to you.

Mr. STEVEN SIMON (Fellow, Council on Foreign Relations; Coauthor, "The Age of Sacred Terror and The Next Attack"): Hi.

ROBERTS: So you support the civilian trial in New York City. Why?

Mr. SIMON: Well, for a couple of reasons, I guess. First is that Khalid Sheikh Mohammed is a criminal, and it's in the U.S. interest to portray him as a criminal, which is precisely the way in which he prefers not to be portrayed, which is why he had demanded, absurdly, to be tried by a military commission.

He wants to portray himself to his own people and the world as a warrior captured on the field of battle, fighting bravely as a soldier against enemy armies. And that's exactly the impression he wants to convey through a trial and a military commission.

ROBERTS: Well, wouldn't�

Mr. SIMON: It's not in our interest to let him do that.

ROBERTS: Wouldn't a civilian trial give him that soap box even more so?

Mr. SIMON: I don't see how that would be the case, because it's not a military trial. And he would be tried not as a soldier, but as a criminal, but as a murderer.

In any case, as a practical matter, it's not clear what kind of a soap box he actually gets. Perhaps it's not generally known, but there are no TV cameras in these courtrooms, and the kings of these domains are the judges, and the judge is highly unlikely to let Sheikh - Khalid Sheikh Mohammed engage in unconfined oratory. That's just highly unlikely to happen. So I don't see that soap box. I do see a propaganda victory, but in my view, it's a U.S. victory. It's not an al-Qaida victory.

ROBERTS: Michael Gerson?

Mr. GERSON: Defendants in criminal cases in American courts get the ability to speak on their own behalf. It would be unconstitutional otherwise. And they gain great discovery rights on sensitive intelligence information, as we found in 1993 in the trial of the Blind Sheikh for the first World Trade Center bombing, where the prosecutor in that case has since argued very strongly that information was revealed that was useful to al-Qaida.

The reality here, the background of this is that Khalid Sheikh Mohammed, in the original plans for 9/11, he was to be on the only plane that landed. He was going to kill all the males aboard, and then he wanted to make a speech, a dramatic speech that would allow him to explain his philosophy. And now he will get that chance.

ROBERTS: Let's hear from Spencer in Oakland, California. Spencer, welcome to TALK OF THE NATION.

SPENCER: Hi, there. Thanks for taking my call.

ROBERTS: Sure.

SPENCER: Yeah, you know, I'm not against the civilian trial in general, but I think having it in New York kind of ends up making this almost a witch-trial type of scenario where I think, you know, just constant protests on either side may come to pass, and I'd - you know, I might even say having it in Upstate New York, like in Albany, or if you want to keep it kind of within the state. But I think having it in New York City kind of is going to create a very heated kind of situation that may, you know, may lead to other attacks - it may not, but may lead to, you know, infighting within our own country.

ROBERTS: Spencer, thanks for your call. Steven Simon, what do you think about that possibility, a civilian court, but using the Timothy McVeigh precedent, moving it out of New York City?

Mr. SIMON: Well, you know, the attack took place in New York City, and, you know, maybe I'm just an idealist, but I see a poetic justice in having the trial where this great tragedy was inflicted on New Yorkers and, more broadly, the American people.

I think the symbolism is very powerful. I do agree that it will impose costs on New York City, you know, from traffic problems to the need to maintain increased security around the courthouse. But I personally favor a trial in New York City. But, you know, I agree with the caller in that it's not - for me, it wouldn't be a make-or-break issue. For me, the key thing is a civilian trial, not the venue.

ROBERTS: We've got an email echoing that from Avery in Boulder, Colorado, who says: Of course these people belong on trial in New York City. They're not soldiers. They're common criminals. They do not belong in a military court.

In usual circumstances, a criminal is always tried in the state where he committed the crime. The people of New York deserve to try this case within their own jurisdiction. Michael Gerson?

Mr. GERSON: Well, the reality here is that you're setting up a very, very odd incentive structure. You're setting up a precedent by which if you attack American soldiers, say the U.S.S. Cole, in a foreign land, you get a military tribunal. If you come to the United States and kill men, women and children in New York City or at the Pentagon, you get a federal trial in New York with all of the media accoutrements. This, to me, is a very perverse set of incentives in this circumstance. In fact, I think it's deeply irresponsible.

ROBERTS: We also have an email from Niles in Richmond, California. And Steven Simon, this brings up something you do in your op-ed. He says: After World War II, Winston Churchill said the Nazi leadership of Germany should be summarily shot. Instead, the Allies conceived the Nuremberg trials, which educated the world about the evils of Hitler without glorifying it. The upcoming civilian trials in New York can be seen as the same opportunity to show the world about the wrongness of the terrorist tactic of targeting civilians that's happened on 9/11.

Mr. SIMON: Oh, yeah. That's what I wrote yesterday in the Times. I think that's a very powerful point, which is why, you know, the media attention to this works in the U.S. favor, not in the favor of the enemy. I think, you know, this is not unlike Nuremberg but it's also not unlike the 1961 trial in Jerusalem of Adolf Eichmann, which really underscored for the world of both the banality of the evil that engineered the Holocaust as a practical matter and the tremendous human cost, because victims were actually shown in the media. And viewers could relate to them on in a sense a personal level. And I think that's very important, especially for the broader Muslim audience that will be paying close attention to this trial.

There's already a lot of evidence that Muslims around the world are beginning to see that killing innocent civilians is not the right away to defend even the most legitimate Muslim interests. And I think this trial, which will showcase the horrors inflicted on New York City, on 3,000 innocent people, will reinforce those growing views. And that can't but help us in the future.

Mr. GERSON: I think that represents a very deep misunderstanding of al-Qaida, which is a organization that's organized throughout the world right now, unlike the Nazi Party, for example, in the aftermath of World War II. Almost every homeland security expert I talked to in preparing my column said that this would be useful to al-Qaida for propaganda, recruitment and fundraising.

I realize that America and much of the world would be repulsed by this, but that doesn't make the prospect less useful for radical-seeking heroes and martyrs. As 9/11 showed, it only takes a few. The reality here is that al-Qaida, given their methods in attacks across the world, loves to send - use violence to send dramatic public messages. It likes to mark events and anniversaries with violent events. And I think this clearly, by any standard, exposes New Yorkers to greater risk.

ROBERTS: Let's hear from Steve in Henderson, Kentucky. Steve, welcome to TALK OF THE NATION.

STEVE (Caller): Hi. Thanks for taking my call. You know, distasteful as it is that the terrorists would use the public stage or the - you know, to make their points, I think it's equally distasteful for someone to have used our court system for a similar show. At the end of the day, this is the trial of a man and he - regardless of anybody's political view - is entitled to his day in court, and it should be no more than that.

So for the prosecutor to be guilty of grandstanding by picking the most emotionally charged sight that he can for the trial is just as perverse as a terrorist attempting to draw attention to their cause or their movement by picking an emotionally charged date for a terrible event. So we should take the high road here. We should try this man and give him his day in court as -without grandstanding, without trying to use the stage to make a political statement, because our political statement should be that our system without any additional help works.

ROBERTS: Steve, thanks for your call. Michael Gerson, why do you think so much of the controversy around this decision is centered on Eric Holder and his role as attorney general? Why is he the lightning rod here?

Mr. GERSON: Well, he is a lighting rod that's created his own lightning. The reality is that America, from Abraham Lincoln to Franklin Roosevelt to others, has generally dealt with enemy combatants in a different way, not by sending them to the U.S., you know, court system.

You know, it would be equally absurd to have taken the authors of Pearl Harbor, who committed an act on American territory and tried them in the San Francisco circuit. This is a - you know, it makes no sense at all, and that raises all sorts of prosecutorial challenges. Because when federal prosecutors, who I've talked on this issue, pull together their case, they do it knowing the rules of evidence. When Khalid Sheikh Mohammed and the other conspirators were captured on the battlefield, this was a battlefield circumstance where the people doing those investigations did not know the eventual context in which this case would have to be made. It's a terrible abuse.

ROBERTS: You're listening to TALK OF THE NATION from NPR News. We have an email from Les in Estero, Florida, who says: How dare we play games with these terrorists. A military court-martial is the cheapest, quickest way to give final disposition to these terrorists. Billions will be spent in New York. We the U.S.A. don't have the money for this. Please stop spending money that we don't have. Steven Simon?

Mr. SIMON: Well, I don't think the U.S. is going to broke right now, that this trial is going to bankrupt the country. So I guess I'm not all that sympathetic to that point. But, you know, more importantly, we do try terrorists in civilian courts and we've done it for a long time and we've done it to some important terrorists, like Zaccarias Moussoui, the Blind Sheikh, Ramzi Yousef, who was the first attacker who tried to take down the World Trade Center in 1993.

And you know, doing this trial in Guantanamo isn't a great idea if - if you take seriously the notion that the United States is engaged in as much a struggle for hearts and minds in the Muslim world as it is in a day-to-day twilight battle against terrorist operatives distributed in, you know, many places around the world. And you know, if the hearts and minds battle is important, then the way to fight that is to show that the United States does provide fair trials, and to do it openly and not to do it in a place like Guantanamo that has acquired, rightly or wrongly, a very, very negative image throughout the world and that has damaged America's reputation over the past, well, you know, eight years now.

ROBERTS: Michael Gerson?

Mr. GERSON: Well, all of the cases that were mentioned were investigated under the assumption that they would be in federal court, not with people taken from a battlefield where that was not the assumption, so there's no concern for the, you know, the proper chain of evidence. Of course there's�

ROBERTS: Now, to be fair, the Justice Department says they think they have plenty of evidence without bringing up questionable testimony that might have been gathered under questionable evidentiary rules.

Mr. GERSON: I guess we'll see. You know, Eric Holder said yesterday that failure is not an option. Failure is always an option in these cases where there are procedural issues that relate to people with exactly the same rights as American citizens, you know, before the court.

ROBERTS: Michael Gerson is a senior research fellow at the Institute for Global Engagement and a columnist for the Washington Post. His most recent column is "Holder's Trials and Errors." He joined us here in the D.C. studio. Thank you so much.

Mr. GERSON: Thank you.

ROBERTS: And Steven Simon, fellow at the Council on Foreign Relations and co-author of "The Age of Sacred Terror." His op-ed, "Why We Should Put Jihad on Trial," appeared in The New York Times. He joined us from his office here in Washington. Thank you.

Mr. SIMON: Thank you.

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