Open Trials Are Good For America

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Americans love to protest. Whether it’s on healthcare reform, war, or the apparent slide of the US into socialism, their zeal for waving placards is matched only by Pakistan’s love of burning effigies.

Last week several hundred people defied the rain to march on Manhattan’s federal courthouse to oppose Attorney General Eric Holder’s decision to try the man accused of masterminding the 9/11 attacks, Khalid Sheikh Mohammed, and four other alleged co-conspirators in New York.

Waving signs denouncing Holder, a group of people affected by the 9/11 attacks claimed the trial would make New York a terrorist target and give the likes of Mohammed a platform to spread his propaganda. Actor Brian Dennehy mounted the podium to question the need for a trial, saying that the accused terrorists should be hauled before a military commission at Guantanamo Bay.

It’s a view that has gained traction in the US and dominated debate on the issue. President Barack Obama’s self-appointed critic-in-chief, Dick Cheney, last month labelled Holder’s decision a "big mistake".

Last week he went further. In an interview with political news website Politico, Cheney claimed the trial would give Mohammed a platform to promote his ideology, in turn emboldening al Qaeda.

In doing so, he joined prominent individuals such as former New York mayor Rudy Giuliani and the influential New York Times columnist, David Brooks in rubbishing the need for a civilian trial. Giuliani has even suggested the US could be exposed to greater danger of terrorist attacks.

David Beamer, the father of one of the victims of United Airlines Flight 93, wrote in the Wall Street Journal of a lack of confidence in the Obama administration over its decision.

Beamer argued the trial would help America’s enemies keep their cause in the headlines, stimulate recruiting and inflict another round of pain on the US. "Our enemies must be thrilled," he wrote.

The decision to send Mohammed to New York for trial certainly raises challenging questions.

As lawyer Philippe Sands writes, any evidence obtained by torture such as water-boarding is inadmissible. Mohammed was water-boarded 183 times while incarcerated at Guantanamo Bay. Understandably, there is some concern over whether he will be acquitted because of tainted evidence. There are also doubts as to whether jurors will be able to stop their emotions from influencing their decisions.

But rather than trying to allay these concerns, the Obama administration has been its own worst enemy. In the face of such criticism, Holder has resorted to glib responses such as, "We need not cower in the face of this enemy" and "our resolve is firm and our people are ready" when questioned about his decision. Meanwhile Obama has prejudged the outcome by saying Mohammed would be convicted and executed — a claim unlikely to win doubters over because it is something that cannot be guaranteed in advance of a fair trial.

If it wants to gain support for its cause, the administration need only look back to the trial of Zacarias Moussaoui, who was convicted of conspiracy to commit a terrorist act. Prior to Moussaoui’s trial, Barry Pollack criminal defence attorney with major law firm Nixon Peabody, raised concerns similar to those being uttered now. "In this environment, of course, it’s going to be very tough to find an impartial jury … and a jury will probably be very receptive to any evidence at all," Pollack said at the time.

Yet the jury critically assessed the evidence presented during proceedings, rejecting the death penalty because it was unconvinced by some of the prosecution’s arguments. And as Moussaoui said in an affidavit following his conviction: "I had thought I would be sentenced to death based on the emotions and anger toward me for the deaths on September 11. But after reviewing the jury verdict and reading how the jurors set aside their emotions and disgust for me and focused on the law and the evidence … I now see that it is possible that I can receive a fair trial even with Americans as jurors."

Besides the value of that precedent, the administration can point to the fact that there is a lot more evidence available to the prosecution beyond anything Mohammed may have said while being water-boarded.

As the BBC reported following his capture: "The agents took away cassettes, a computer hard drive and discs, as well as a cell phone and documents." The report went on: "They believe they could find names, locations and other clues to al Qaeda cells in the United States and around the world."

That’s damning stuff. Prosecutors may not even need to rely on what the accused terrorist told interrogators at Guantanamo Bay. Furthermore, the burden of proof is not so onerous to make a successful prosecution difficult. In the respected journal Foreign Affairs, the executive director of Human Rights Watch, Kenneth Roth, wrote "To convict someone of conspiracy to commit terrorism takes very little: proof of a criminal agreement between two or more people and a single step, no matter how innocuous, to advance the plot."

For these reasons, trying Mohammed before a civilian court rather than a commission is also in the best interests of the US, domestically and abroad. During its two-term tenure, the Bush administration alienated allies and flouted international law through the use of secret renditions, torture and military commissions, all in the name of the "war on terror".

Those captured were never dealt with under the Geneva Conventions, which stipulate how prisoners of war must be treated. As well as banning torture, the Conventions state that prisoners must receive a fair trial in a constitutionally recognised court affording judicial guarantees.

As Article 84 of the Convention states, "In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognised, and, in particular, the procedure of which does not afford the accused the rights and means of defence."

Although Bush’s attorney general Alberto Gonzalez referred to the Conventions as "quaint", America’s judicial system wasn’t so dismissive. In 2006, ruling on the Hamdan v Rumsfeld case, the Supreme Court found that the military commissions breached the Conventions. That ruling followed others in 2004 in the cases of Rasul v Bush and Hamdi v Rumsfeld which stated that detainees had a right to a fair trial and could not be held indefinitely.

As such, sending Mohammed to Manhattan would mark a symbolic break from Bush-era policies. It would restore US credibility by showing it is willing to meet its legal obligations and apply to itself the same standards that it demands of others.

As well, shunning military commissions and indefinite detention will help efforts to combat terrorism. Contrary to the criticisms made by Holder’s opponents, civilian trials are an asset rather than a liability when it comes to protecting the US from further attack. As human rights lawyer Geoffrey Robertson notes, groups like al Qaeda use the illegal internment and torture of Muslims at the hands of the US to add to their ranks. "Their object is to provoke responses so repressive that they will encourage recruits and supporters who would never otherwise help their cause," Robertson writes of terrorists’ methods in his book Crimes Against Humanity.

And as past terrorism trials such as those of Timothy McVeigh, Moussaoui and Jose Padilla demonstrate, it is doubtful Mohammed’s trial will provoke a violent reaction from America’s enemies. McVeigh’s trial did not lead to a spate of reprisals. Colorado is no less safe while Padilla completes his 17-year prison term and Virginia is doing fine after Moussaoui’s prosecution.

While it is true that Mohammed may try to mount his soapbox, one must question just how effective any claims of repression will be if made during a fair and impartial hearing.

Of course, there are alternatives to civilian courts for dealing with accused terrorists. As Robertson notes again in his book, the US could consider setting up an international tribunal such as the one established by the US, the UK and Libya to deal with the Lockerbie bombings. As Robertson writes, that type of tribunal could be adapted so American federal judges sit in a neutral location but apply the law of New York. Another option Robertson suggests is establishing a UN tribunal in the Hague similar to those set up to deal with Yugoslavia and Rwanda. But while this may be politically expedient, removing the need to send the likes of Mohammed to America, it doesn’t make sense to expend the time and effort, and both of these options pay no dividend in demonstrating the strength and fairness of the US civilian judicial system, as the Moussaoui case did.

Another advantage of running the civilian trial is that if Mohammed is put away by a regular US court, dealing with other alleged terrorists currently held at Guantanamo Bay will become a lot easier.

New Matilda

New Matilda is independent journalism at its finest. The site has been publishing intelligent coverage of Australian and international politics, media and culture since 2004.

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