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Debate: Trying terrorist suspects in civilian courts

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Should 9/11 suspects be tried in NY courts, as ordered by US AG Eric Holder?

Background and context

In November of 2009, US Attorney General Eric Holder ordered the trial of 9/11 mastermind Khalid Sheikh Mohammed and four others in a federal criminal court in Manhattan, New York. These civilian courts are an alternative choice to trying terror suspects in military tribunals at Guantanamo Bay, Cuba.
The decision sparked substantial debate in the United States and around the world. The main questions framing the debate include: Can the conviction of the 9/11 terrorists be ensured in civilian courts, where there exists a risk of acquittal? Do civilian courts better uphold the rule of law, or are military tribunals consistent with US Constitutional law, rights, and values? How do civilian courts compare to military tribunals in terms of efficacy and the rule of law? Have civilian courts been more or less succesful than military tribunals in trying and convicting terror suspects? Have they been faster? Is trying terrorists in NYC courts fair to the victims of the attack and the city's inhabitants? Is trying terror suspects in NYC safe? Will it incite attacks at or near the trial? Will it turn into a circus of protesters and radicals vying for attention? Will protests and counter-protests surround the trial? Will the trial jeaparize intelligence sources? Will the terror suspects use the trial as a platform to spread their ideologies? Will the trials be a propaganda win or loss in general for the US and West versus terrorists and their radical ideologies? Overall, was the decision to try the 9/11 terror suspects in NYC a good one?

Contents

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Conviction: Can civilian trials ensure conviction of the 9/11 terrorists?

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Pro

  • If somehow acquitted, terrorists would still be detained. Eric Holder said at a November Congressional hearing on his decision to try terrorists in NYC: "We would continue to hold them under the laws of war. We believe we have the authority to do that."[1]


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Con

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Law: Is trying terrorists in courts consistent with the law?

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Pro

  • Terror subjects are due a fair trial in civilian courts. Rudy Giuliani told reporters about the 2006 civilian trial of "20th hijacker": "I was in awe of our system. It does demonstrate that we can give people a fair trial, that we are exactly what we say we are. We are a nation of law. ... I think he's going to be a symbol of American justice."[2]
  • Civilian trials avoid using evidence from coercive interrogations. Stuart Taylor. "No Need To Fear A Manhattan Terrorist Trial." National Journal. November 21, 2009: "Brutal interrogations. Holder and his team plan to prevent the 9/11 prosecution from morphing into a trial of the CIA for torture, Newsweek has reported, by avoiding or minimizing reliance on admissions derived (or arguably derived) from coercive interrogations. These admissions may include Mohammed's statements during a 2007 Guantanamo hearing that he personally beheaded Wall Street Journal reporter Daniel Pearl and "was responsible for the 9/11 operation, from A to Z."
  • Nothing mild about civil punishments for terrorists. US Attorney General Eric Holder said in a November 2009 Congressional hearing defending his decision to try 9/11 terrorists in NYC: "There is nothing common about the treatment the alleged 9/11 conspirators will receive. In fact, I expect to direct prosecutors to seek the ultimate and most uncommon penalty for these heinous crimes."[3]


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Con

  • Terrorists should not be treated as common criminals. Terrorists are a certain kind of villan. They attempt to kill massive numbers of civilians in a war against civilization and society. They are not like common criminals, so should not be treated as such, with rights in a civilian trial.
  • Civilian trials show more concern for terrorists than public. Former New York Mayor Rudy Giuliani commented that he felt the decision to try terror suspects in New York: "seems to be an overconcern with the rights of terrorists and a lack of concern for the rights of the public."[4]


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Vs. tribunals: Are courts better than tribunals for trying terrorists?

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Pro

  • Military tribunals do not fully uphold the rule of law. Stuart Taylor. "No Need To Fear A Manhattan Terrorist Trial." National Journal. November 21, 2009: "Trying the 9/11 defendants before military commissions, on the other hand, would be widely (if unfairly) denounced as designed to ensure convictions regardless of the evidence. A decision to continue holding the suspects without trial -- after eight years of presidential vows to put them on trial -- would be a damning admission that America is simply not up to the task of bringing war criminals to justice."
  • There is little difference between civilian courts and military tribunals. Margaret Carlson. "Big Apple Justice Fits Man Accused of 9/11." Bloomberg. Nov 19, 2009: "there is no longer much difference between a military and civilian trial. After the U.S. Supreme Court weighed in on the shortcomings of George W. Bush’s tribunals, Congress and the Obama administration granted more rights to the accused." Therefore, trying terrorists in civilian courts is little different, and not more risky.


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Con

  • Military tribunals make trying terrorists in court unnecessary. Dan McLaughlin. "Why Terrorists Don't Deserve A Court Date." CBS. November 18, 2009: "The trials are wholly unnecessary; the Administration is holding some enemy combatants without trial and trying others through the military commission system, thus conceding that it has alternatives. As a result, any risks, expenses or other downsides of the trials are being undertaken solely for the purpose of empty symbolism."
  • Tribunals for terrorists is consistent with US Constitution John C. Eastman. "Military tribunals are perfectly constitutional." Ashbrook Center. November 2001: "The Fifth Amendment requires indictment by a grand jury, but specifically excepted from that requirement are "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." In other words, the men and women serving in our own military forces are not entitled to the benefits of trial in civilian courts, nor are civilians serving in the militia when they have been called into service. It would be odd indeed to read the Fifth Amendment as affording greater access to civilian courts to non-uniformed soldiers of terrorism waging war on the United States than it provides to our own soldiers and civilians."
  • A military tribunal would have been faster in case of KSM. Charles Krauthammer. "Travesty in New York." Real Clear Politics. November 20, 2009: "Alternatively, Holder tried to make the case that he chose a civilian New York trial as a more likely venue for securing a conviction. An absurdity: By the time Obama came to office, KSM was ready to go before a military commission, plead guilty and be executed. It's Obama who blocked a process that would have yielded the swiftest and most certain justice."
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Safety: Is trying terrorists in New York safe?

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Pro

  • Terrorists should be met with the weapon of the law. New York Mayor Rudy Giuliani praised the trial of the 1993 bombing of the World Trade Center, saying, "New Yorkers won’t meet violence with violence, but with a far greater weapon -- the law."[6]


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Con

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Intelligence: Can a civilian court adequately protect intelligence?

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Pro

  • 9/11 suspects can be convicted without classified evidence. Steven Simon. "Why We Should Put Jihad on Trial." New York Times. November 17th, 2009: "John Yoo, a former Bush administration lawyer, argues that the trial would be an “intelligence bonanza” for our enemies. Also unlikely. Our prosecutors are certain that there is enough unclassified evidence to make their case. Moreover, the most prized intelligence is recent, specific and actionable. Al Qaeda today is most concerned with discovering when and where the next drone missile attack will take place in Pakistan, information not likely to be disclosed during a trial about a conspiracy hatched more than a decade ago."
  • Intelligence surrounding 9/11 terrorists is not valuable anymore. While there is a remote chance that civilian courts would expose some intelligence, it would only be exposing 8-year-old intelligence, which is very unlikely to be useful to terrorists.
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Con

  • Trying terrorists risks releasing intelligence, costing lives Charles Krauthammer. "Travesty in New York." Real Clear Politics. November 20, 2009: "Civilian courts with broad rights of cross-examination and discovery give terrorists access to crucial information about intelligence sources and methods. [...] That's precisely what happened during the civilian New York trial of the 1993 World Trade Center bombers. The prosecution was forced to turn over to the defense a list of two hundred unindicted co-conspirators, including the name Osama bin Laden. 'Within ten days, a copy of that list reached bin Laden in Khartoum,' wrote former Attorney General Michael Mukasey, the presiding judge at that trial, 'letting him know that his connection to that case had been discovered.'"
"Trying Sept. 11 mastermind in civilian court is dangerous." The Detroit News Editorial. November 19, 2009: "Andrew McCarthy, the former assistant U.S. attorney who tried the "Blind Sheik" Omar Abdel Rahman for his role in the 1993 bombing of the World Trade Center, [...] told the Wall Street Journal that he supported the idea of trying Rahman in a civilian court at first, but discovered the problem of a criminal defendant's access to all kinds of government information. McCarthy has observed that intelligence information went from the World Trade Center defendants to Osama Bin Laden within days."


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Grand-standing: Can trials avoid grand-standing by terrorists?

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Pro

  • Courtroom rants of terrorists only expose them as hateful fools Attorney General Eric Holder said in Congressional hearings in November of 2009 on his decision to try 9/11 terrorists in New York civilian courts: "I’m not scared of what Khalid Sheikh Mohammed has to say at trial, and no one else needs to be afraid either.[...] I have every confidence that the nation and the world will see him for the coward that he is."[7]
  • There will be no TV cameras in trials of terror suspects. Steven Simon. "Why We Should Put Jihad on Trial." New York Times. November 17th, 2009: "Which brings us to the idea that allowing Mr. Mohammed to take the stand will give him a soapbox. The truth is, if the trial provides a propaganda platform for anybody, it will be for our side. [...] First, federal courts do not permit TV cameras in the courtroom, so the opportunity for “real time” jihadist propagandizing won’t exist."


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Con

  • Trying terrorists in US offers stage for grand-standing Charles Krauthammer. "Travesty in New York." Real Clear Politics. November 20th, 2009: "For late-19th-century anarchists, terrorism was the "propaganda of the deed." And the most successful propaganda-by-deed in history was 9/11 -- not just the most destructive, but the most spectacular and telegenic. [...] And now its self-proclaimed architect, Khalid Sheik Mohammed, has been given by the Obama administration a civilian trial in New York. Just as the memory fades, 9/11 has been granted a second life -- and KSM, a second act: "9/11, The Director's Cut," narration by KSM. [...] September 11, 2001 had to speak for itself. A decade later, the deed will be given voice. KSM has gratuitously been presented with the greatest propaganda platform imaginable -- a civilian trial in the media capital of the world -- from which to proclaim the glory of jihad and the criminality of infidel America."
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Propaganda: Is terrorists trials a propaganda win or loss?

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Pro


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Con

  • Terrorist trial in US will give appearance of US weakness. Cal Thomas. "Trying terrorists in New York is dangerous." The Wichita Eagle. November 18, 2009: "It also will serve as a recruiting video for future terrorists, because it will demonstrate what, to them, is weakness. A strong nation would have tried these men in the military tribunals Congress authorized for that purpose. A weak nation imputes rights to noncitizens who want to do away with the very rights we are now going to afford them."
  • Trying terrorists in US courts will not help US achieve anything. Cal Thomas. "Trying terrorists in New York is dangerous." The Wichita Eagle. November 18, 2009: "What do we hope to accomplish by trying these mass murderers on U.S. soil? Will it produce more troops from our NATO allies to finish the job in Afghanistan? Not likely. When the world sees how good and fair we are, will it love America more and will terrorists decide to kill us less? Only in the world of make-believe inhabited by American Civil Liberties Union lawyers."


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Mixed approach: Is a mix of civilian trials and military tribunals justified?

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Economics: What are the economic pros and cons?

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Pro

  • Trying and imprisoning terrorists can create needed US jobs. Margaret Carlson. "Big Apple Justice Fits Man Accused of 9/11." Bloomberg. Nov 19, 2009: "The politics of the trial stems from Obama’s decision to announce the closing of Guantanamo before he had lined up takers for its prisoners. Now with unemployment at 10.2 percent, he could hold an auction for the officials in Illinois, Montana, Michigan and Colorado clamoring for the detainees to fill their underused prisons. The politician who wins the detainees isn’t going to get booted from office. He’s going to get a parade."


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Con

  • Trying terrorists in US requires costly security measures. Dan McLaughlin. "Why Terrorists Don't Deserve A Court Date." CBS. November 18, 2009: "The additional security required to guard against #3 will cost the federal and city governments a fortune, interfere with the administration of justice in a busy federal district and busy federal prison, add to the traffic and delays already extant in lower Manhattan, and place a great burden on the jurors, judge, and prosecutors."
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Public opinion: Where does public opinion stand on this issue?

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Pro

  • Public opinion irrelevant to merits of civilian trial of terrorists. Justice is justice, and judicial process is judicial process. This is the case no matter where public opinion stands on an issue. If it is right to try a terrorist in civilian courts, than this should be done, irrespective of what the public thinks.
  • Trying and imprisoning terrorists will be popular where it creates jobs. The jobs created to handle the trying and imprisoning of terrorists are an attractive component of bringing them to US territory, particularly during economic difficulties. This is demonstrate in Illinois, where Senator Dick Durbin (D) has been seeking the opportunity for precisely this reason - to create jobs and possibly even win greater voter support.[8]
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Pro/con sources

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See also

External links and resources

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