Terror Trials in New York – a Crucible for the Criminal Justice System

In a highly anticipated news conference on Friday, November 13th, Attorney General Eric Holder announced that Khalid Shaikh Mohammed – 9/11 mastermind – along with four of his co-conspirators, would be tried in a federal courtroom in Manhattan, mere blocks from Ground Zero and nearly eight years after the deaths of his some 3,000 victims. Although a recent Marist poll of native New Yorkers puts approval for the venue at 45%, with disapproval at 41%, the announcement has drawn fire from both sides of the isle, with Republican leadership accusing the President and AG Holder of playing into the hands of “liberal special interest groups” at the expense of the American people, unnecessarily placing them in harm’s way while potentially exonerating the defendants, as well as critics on the left who lament the continued use of ‘modified’ military commissions for an additional five detainees. The caucus’ more conservative members, like Senator Jim Webb (D-WV), fear the trials will invite untoward disclosure of privileged information. Despite assurances from Holder that the administration will have sufficient authority to keep state secrets classified, critics remain unconvinced.

Security concerns aside, the White House has been at pains to underscore its firm belief that a jury will return a verdict of ‘guilty’. Meanwhile, those detainees deemed too dangerous for release and too difficult for prosecution will continue to be tried before private military tribunals, in spite of the President’s January 22nd Executive Order 13492 which called for their immediate suspension. All this begs the question, why bother making a point about the efficacy of the criminal justice system if you’ve decided the trial’s outcome before it’s begun? After all, presumption of innocence is a foundational part of that system and hence, the opportunity to avail oneself of such system would seem rather the point. What’s more, if public trials are only workable on an ad hoc, when-we-feel-like-it basis doesn’t that undermine the message about their suitability as the proper forum for criminal proceedings?

In spite of its repeated efforts to turn the page on Bush-era policies, the Obama administration has continually found itself at the mercy of political pressure forcing it to curtail its plans somewhat. Even as it signals a new chapter in America’s ‘moral leadership’ abroad, the administration is finding it difficult to navigate the terrain, making some previously undesirable policy options, necessary evils in the pursuit of some presumably greater good. The two-tiered trial system announced by Holder is merely the last in a series of such decisions. It recalls the President’s speech at the National Archives in March on the administration’s revised detention and interrogation policy, where he elucidated several detainee categories, among them those individuals who required so-called ‘preventive detention’ since they are considered dangerous, but impossible to convict. This brings us back to the current debate over terror trials. Like the Bush administration, who believed that terrorists were not normal criminals and hence, should not be tried as such, the Obama administration has reluctantly continued a policy of military tribunals, faced with the hard reality that extending the right to public trial to every detainee would be politically precarious. This inconsistency of rhetoric and reality, between alleged justice and the awkward half-measures actually being implemented undermines the sincerity of this effort. Indeed, if their intention was to reinvigorate faith in the criminal justice system to dispose of criminals, they’ve done just the opposite.