The first great terrorist trial of the twentieth century will take place in the shadow of the World Trade Center. The Obama administration has announced that Khalid Shaikh Mohammed, the self-confessed mastermind of the 9/11 mass murders, will be subjected to an ordinary criminal trial in the federal court of New York. He will almost certainly be charged with the mass murder of nearly 3,000 individuals, and he could possibly face trial for the murder of Wall Street Journal reporter, Daniel Pearl, who he claims to have beheaded in Pakistan. The form of the indictment is not yet clear — whether it will be a conspiracy or RICO charge or whether it will include special terrorist counts as well. Whatever the form, the substance of the charge will be that Mohammed and his co-defendants murdered more people than anyone ever facing justice in an American court.
Despite the fact that Mohammed has confessed to virtually everything, his trial will face daunting challenges, unless he decides to plead guilty as he tried to do last year when he sent a note to a military judge at Guantanamo. If he changes his mind and decides to fight the charges, he will have some powerful legal weapons at his disposal.
First and foremost is the reality that he was subjected to torture, both physical and psychological. He was waterboarded, which clearly amounts to torture under the law. It was also reported that when he was arrested, his young children were apprehended as well. If this is true, his lawyers will surely insist that the circumstances surrounding the detention of his children, particularly whether they were used as bargaining chips against him, must be fully developed and exposed. Although his confessions followed the administration of torture, prosecutors will argue that he eventually made an independent decision to confess. Indeed, they have already laid the foundation for this argument by establishing a so-called “clean team” of interrogators whose job it was to develop evidence that did not rely on his tainted confessions. Whether this tactic will work remains to be seen.
The Bush administration had defended the use of waterboarding as a legitimate, if extreme, technique for eliciting valuable intelligence information. It is doubtful that the Obama administration will try to defend that tactic or will try to argue that evidence adduced as a result of waterboarding should be admissible in a criminal case. The bottom line is that current prosecutors will probably have to prove the case against Mohammed without relying on any statements that resulted from torture or any evidence that is the fruit of unconstitutional interrogations.
Another daunting obstacle that will be faced by prosecutors will likely be the common defense tactic called “graymail.” Under this variation on blackmail, the defense attorneys demand that the government turn over sensitive and classified intelligence information deemed necessary to the defense. If they refuse to do so, the defense then moves for dismissal of the indictment. Federal judges are sensitive to the potential abuse of this tactic and will insist that the material that is sought must be relevant to the defense. But if it is relevant, the tactic can be extremely effective.
The defense may also move for a change of venue, insisting that no one accused of blowing up the World Trade Center can receive a fair trial in its shadow. I recall arguing a case in the federal courthouse shortly after the terrible events of 9/11 and still being able to smell the smoldering remnants of that catastrophic event that no New Yorker will ever forget. If a change of venue is not granted, it will be very difficult to find enough jurors with open minds to assure that what President Obama promised — “the most exacting demands of justice” — can actually be delivered.
Finally, there is the issue of the death penalty. Many New Yorkers oppose the death penalty, though even most of those would agree that if there were ever a case in which it was warranted, it would be for the deliberate murder of nearly 3,000 people. If the government seeks the death penalty, they would be entitled to what is called a “death-qualified jury.” Such a jury consists only of citizens who would be willing to impose the death penalty. This requirement would make it even more difficult to sit a jury within a reasonable period of time.
In the end, I believe the Obama administration has done the right thing by placing our trust in the American criminal justice system. I wish they had also decided to try Abd al-Rahim al-Nashiri in a civilian court, rather than before a military commission. Al-Nashiri is accused of planning the attack on the Navy destroyer Cole in a Yemen port. The cases are a bit different because al-Nashiri is charged with a military-type attack on a military target outside of the United States, whereas Mohammed is charged with an attack on a civilian target in the United States. Nonetheless, only civilian courts can assure “the most exacting demands of justice.”
In this case, the United States will be on trial as surely as Mohammed and al-Nashiri will be on trial. Much is at stake but the Obama administration’s decision to trust our civilian courts is a good first step.