Terror Trials Could Be Held in Civilian Courts

The decision to try Khalid Sheikh Mohammed, who has claimed he was the mastermind of the 9/11 terrorist attacks, and four others in a civilian federal court in New York City, has provoked an emotional and, in some instances, quite partisan response. Just because objections are emotional or partisan, however, does not mean they are invalid. So it might be worth exploring some of the objections.

Some have said that it is inappropriate to try alleged terrorists or war criminals in a civilian court, that military commissions are more appropriate. Unfortunately, the legal situation is not so clear-cut. The wars in Iraq and Afghanistan have certainly been waged like wars, but Congress never did declare war, it simply authorized the use of force. The United States is not at war with another state or government but, insofar as a "war on terror" is an appropriate metaphor, with an elusive band of conspirators.

Civilian courts have been used in previous wars when they were capable of functioning normally, even for enemy combatants. Since 9/11, under both the Bush and Obama administrations, a combination of law enforcement, intelligence and military methods have been used where each was deemed appropriate. KSM was not captured on a battlefield but by Pakistani police working with Americans.

Legally speaking, either military commissions or civilian courts would seem to be appropriate. Those who favor using civilian courts argue that it emphasizes our confidence in our judicial system and our respect for the rule of law.

Others say this is not especially important, or that the risks outweigh the benefits.

Some have argued that since the prosecution in civilian trials has to turn over relevant information to the defense, U.S. secrets and intelligence methods will be compromised and could end up in the hands of active terrorists. There is something to this, but federal courts have adopted procedures for handling classified information — indeed, the law setting up military commissions for "war on terror" trials was largely based on existing practices in federal courts.

The kind of information active terrorists would be most interested in would be current, rather than 10-year-old information.

Some have argued that KSM will use the courtroom as a soapbox to spout his jihadist ideology. This is a concern, but it would hardly be unprecedented for a defendant to say hateful things. The trials will not be televised live, however, and most judges are capable of controlling irrelevant outbursts in their courtrooms.

Some have expressed a fear that KSM and his cohorts will be acquitted. Given that he has already confessed — indeed bragged — that he was the 9/11 mastermind without being waterboarded, and that the trials will be held in New York, this seems unlikely.

On balance, then, although reasonable people can disagree, trying some of the alleged terrorists in a civilian court doesn't seem out of line, and has the advantage — acknowledging potential for problems — of reinforcing our traditions of openness and commitment to the rule of law.

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