Terrorism Trials Pose Dilemma For U.S.

The Obama administration wants to try captured terrorism suspects in civilian court. Although administration officials continue to criticize the use of military tribunals, they want to keep that option open for al-Qaida operatives such as Khalid Sheikh Mohammed. That would be a reversal from Attorney General Eric Holder's announcement that Mohammed would be tried in a civilian court near Ground Zero.

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It was a vice presidential face-off. Current Vice President Joe Biden sparred publicly yesterday with his predecessor Dick Cheney. The dispute was over how and where terrorism detainees should be tried. The Obama administration wants to try some of men in military commissions and others in civilian court.

And as NPRs Ari Shapiro reports, that stance has made it difficult for the White House to give a full-throated defense of either system.

ARI SHAPIRO: There are national security experts who argue that every high value detainee should be tried as an enemy combatant in a military commission. Republican Senator Lindsey Graham of South Carolina is among them.

Senator LINDSEY GRAHAM (Republican, South Carolina): Theres nothing wrong with the federal court. Its just not the right venue for these particular detainees because the enemy combatants engaged in acts of war.

SHAPIRO: Other experts argue that the Obama administration should forget about military commissions for Guantanamo detainees. Jameel Jaffer is with the ACLU.

Mr. JAMEEL JAFFER (ACLU): Terrorism is obviously a grave crime but its still a crime. The civilian courts have presided over literally hundreds of terrorism prosecutions over the last decade.

SHAPIRO: The Obama administration wants to use both models.

Vice President JOE BIDEN: A military tribunal is available. It is the less preferable way to go. But one way or another he will be held accountable.

SHAPIRO: That was Vice President Joe Biden speaking on NBCs Meet the Press, yesterday about the trial of Khalid Sheikh Mohammed. Trying to have it both ways, has put the White House in an awkward position, says retired Air Force lawyer Scott Silliman. He directs the Center for Law, Ethics and National Security at Duke.

Professor SCOTT SILLIMAN (Practice Law, Duke University; Director, Center on Law, Ethics and National Security): When the attorney general made the decision last November that we would use both trial in the federal district courts and military commissions that decision pleased no one.

SHAPIRO: Silliman says prosecutors at the Justice Department and some congressional Democrats firmly believe in criminal trials. Military prosecutors and Republicans tend to support military commissions.

Prof. SILLIMAN: So, each side believes that their respective form should be used for all of them. When you split baby, no one was happy.

SHAPIRO: One man with a first-hand appreciation of this struggle is Morris Davis, the former chief prosecutor at Guantanamo Bay. He was very critical of the Bush administrations rules for military commissions.

Mr. MORRIS DAVIS (Chief Prosecutor, Guantanamo Bay, Former): I think its dangerous crime to play both sides of defense. They need to pick aid course and treat this as a law enforcement matter or war. Theyre trying to play it both ways. Theres confusion all around.

SHAPIRO: The Bush administration also used both systems. They had mixed success as Vice President Biden pointed out yesterday.

Vice Pres. BIDEN: Under the Bush administration there were three trials in military courts. Two of those people are now walking the streets. They are free.

SHAPIRO: Thats partly because the military commissions changed dramatically over eight years. There were lawsuits and Congress became involved. Last year, President Obama asked Congress to step in once more to update the rules for military trials, giving detainees more rights. Patrick Rowan led the Justice Departments National Security Division at the end of President Bushs second term.

Mr. PATRICK ROWAN (Deputy Assistant Attorney General, National Security Division): I think the likelihood that trials would move forward more efficiently is much greater than it was years ago when the system didnt really have congressional back.

SHAPIRO: Still, Rowan is ambivalent. He says terrorist masterminds may fear radically belong in military trials. But military commissions are relatively new system. Federal courts have been around for more than 200 years.

Mr. ROWAN: So, if you take away some of the questions about what court these people belong in and you simply focus on where are we most likely to get an efficient and fair resolution in a reasonable period of time, I understand why the federal court is so attractive to attorney general.

SHAPIRO: As President Obama said on a speech last may, these are some of the most complicated questions that a democracy can face. His administration is struggling with the answers.

Ari Shapiro, NPR News, Washington.

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