Speaking of national security issues that seemed to have dropped off of the public’s radar screen, this headline beckons the reader to an article in The Atlantic, written by Andrew Cohen and posted over the weekend:
Why not try Khalid Sheikh Mohammed by video? A noted terror trial judge has a bright idea on how to safely and efficiently prosecute Khalid Sheikh Mohammed. Is Washington ready to listen?
The answer to that second question is a resounding, if unfortunate, “no.” I once backed a civilian trial for Mohammed and his co-conspirators - essentially the proposal that Cohen describes in his piece. The new idea, he says, is to have a jury sit in the Southern District of New York. An otherwise ordinary federal trial would then be held at Guantanamo, which the jury would observe via video feed. Thus the civilian justice system comes to the 9/11 accused, and not the other way around.
Opposition to this approach would be almost as rabid and entrenched as opposition was to the earlier attempt to prosecute the 9/11 defendants in lower Manhattan. Because of the issue’s severe politics, it probably would not even matter that the proposal is serious, or that it was put forward by a seasoned district court judge – Judge William G. Young, who presided over the Richard Reid case and, according to Dan Klaidman’s book, impressed President Obama with his remarks during Reid’s sentencing.
Pause to review the recent history: Congress twice has affirmed the propriety of military trials, the second time with the Obama Administration’s support in 2009. In 2010, Democrats and Republicans voted to prevent stateside trials for Guantanamo detainees. Legislators doubled down on that policy more recently, and in doing so, went so far as to state explicitly that Khalid Sheikh Mohammed must not be brought to the United States. Was this purely a product of NIMBYism? That is, despite the de facto prohibition on domestic civilian trials, are we nevertheless likely to see implementation of Judge Young's proposal at Guantanamo?
A lot of conservatives would reject the idea out of hand. Many of them resist civilian terrorism trials as a matter of principle – one being that, in their view, federal procedures are exceedingly “generous” to “undeserving” terrorism defendants. Another well-worn justification is that “terrorism is a military problem, not a criminal problem,” and that military tribunals are the presumptively correct response. There’s also the fact that the 9/11 case will be Guantanamo’s most consequential prosecution, and thus deliver a verdict on the re-tooled commission system. For those reasons, I reckon many conservatives would never accept a civilian 9/11 trial - whether held in the Southern District or at Guantanamo’s Expeditionary Legal Complex. Their opposition, in other words, is based on more than just geography.
Of course, overcoming that opposition would mean actually pushing Judge Young’s proposal. Some Democrats in Congress and the White House might consider a civilian, remote-jury trial approach– but again, judging by the recent past, they probably would not go to bat for it, either. Klaidman recounts how some Democrats, including Chief-of-Staff Rahm Emanuel, were ready to permit the 9/11 defendants’ military trial to go forward, in exchange for concessions from Republicans in other policy areas. That swap didn’t happen, thanks to a highly vocal Democratic faction lead by Attorney General Eric Holder. As Klaidman recounts, this group tried mightily to arrange a civilian prosecution - first in lower Manhattan, and later, as deteriorating local politics foreclosed that option, in the Catskills. But, as Klaidman further explains and devoted Lawfarers know well, Holder’s bid ultimately was unsuccessful.
With this as the political context, I find it hard to envision a second Obama term, in which a) the Attorney General (Holder or someone else) courageously revives the federal prosecution project for KSM et al, b) a solid Democratic majority rallies behind that proposal, and c) Republicans do not get in the way.
So yeah, a federal trial at GTMO, but with the jury tuning in from Manhattan? It is a good enough idea, but for better or worse it is practically stillborn. In all, the proposal and the article (and Klaidman’s reporting) remind us just how utterly over the trial debate seems to be – as far as the 9/11 case goes, anyway. Can anyone really imagine a third arraignment hearing actually happening? As Austin Powers said once, that train has sailed.