Wall Street Journal (10.19.09)
Civilian Courts Are No
Place to Try Terrorists
We tried the first World Trade Center bombers in civilian
courts. In return we got 9/11 and the murder of nearly 3,000 innocents.
The Obama administration has said it intends to try
several of the prisoners now detained at Guantanamo Bay in civilian courts in
this country. This would include Khalid Sheikh Mohammed, the mastermind of the Sept.
11, 2001 terrorist attacks, and other detainees allegedly involved. The Justice
Department claims that our courts are well suited to the task.
Based on my experience trying such cases, and what I
saw as attorney general, they aren't. That is not to say that civilian courts
cannot ever handle terrorist prosecutions, but rather that their role in a war
on terror—to use an unfashionably harsh phrase—should be, as the term
"war" would suggest, a supporting and not a principal role.
The challenges of a
terrorism trial are overwhelming. To maintain the security of the courthouse
and the jail facilities where defendants are housed, deputy U.S. marshals must
be recruited from other jurisdictions; jurors must be selected anonymously and
escorted to and from the courthouse under armed guard; and judges who preside
over such cases often need protection as well. All such measures burden an
already overloaded justice system and interfere with the handling of other
cases, both criminal and civil.
Moreover,
there is every reason to believe that the places of both trial and confinement
for such defendants would become attractive targets for others intent on
creating mayhem, whether it be terrorists intent on inflicting casualties on
the local population, or lawyers intent on filing waves of lawsuits over issues
as diverse as whether those captured in combat must be charged with crimes or
released, or the conditions of confinement for all prisoners, whether convicted
or not.
Even after conviction, the issue is not whether a
maximum-security prison can hold these defendants; of course it can. But their
presence even inside the walls, as proselytizers if nothing else, is itself a
danger. The recent arrest of U.S. citizen Michael Finton, a convert to Islam
proselytized in prison and charged with planning to blow up a building in
Springfield, Ill., is only the latest example of that problem.
Moreover,
the rules for conducting criminal trials in federal courts have been fashioned
to prosecute conventional crimes by conventional criminals. Defendants are
granted access to information relating to their case that might be useful in
meeting the charges and shaping a defense, without regard to the wider impact
such information might have. That can provide a cornucopia of valuable information
to terrorists, both those in custody and those at large.
Thus,
in the multidefendant terrorism prosecution of Sheik Omar Abdel Rahman and
others that I presided over in 1995 in federal district court in Manhattan, the
government was required to disclose, as it is routinely in conspiracy cases,
the identity of all known co-conspirators, regardless of whether they are
charged as defendants. One of those co-conspirators, relatively obscure in
1995, was Osama bin Laden. It was later learned that soon after the
government's disclosure the list of unindicted co-conspirators had made its way
to bin Laden in Khartoum, Sudan, where he then resided. He was able to learn
not only that the government was aware of him, but also who else the government
was aware of.
It is not simply the disclosure of information under
discovery rules that can be useful to terrorists. The testimony in a public
trial, particularly under the probing of appropriately diligent defense
counsel, can elicit evidence about means and methods of evidence collection
that have nothing to do with the underlying issues in the case, but which can
be used to press government witnesses to either disclose information they would
prefer to keep confidential or make it appear that they are concealing facts.
The alternative is to lengthen criminal trials beyond what is tolerable by
vetting topics in closed sessions before they can be presented in open ones.
In June, Attorney General Eric Holder announced the
transfer of Ahmed Ghailani to this country from Guantanamo. Mr. Ghailani was
indicted in connection with the 1998 bombing of U.S. Embassies in Kenya and
Tanzania. He was captured in 2004, after others had already been tried here for
that bombing.
Mr. Ghailani was to be tried before a military commission
for that and other war crimes committed afterward, but when the Obama
administration elected to close Guantanamo, the existing indictment against Mr.
Ghailani in New York apparently seemed to offer an attractive alternative. It
may be as well that prosecuting Mr. Ghailani in an already pending case in New
York was seen as an opportunity to illustrate how readily those at Guantanamo
might be prosecuted in civilian courts. After all, as Mr. Holder said in his
June announcement, four defendants were "successfully prosecuted" in
that case.
It is certainly true
that four defendants already were tried and sentenced in that case. But the
proceedings were far from exemplary. The jury declined to impose the death
penalty, which requires unanimity, when one juror disclosed at the end of the
trial that he could not impose the death penalty—even though he had sworn
previously that he could. Despite his disclosure, the juror was permitted to
serve and render a verdict.
Mr. Holder failed to mention it, but there was also a
fifth defendant in the case, Mamdouh Mahmud Salim. He never participated in the
trial. Why? Because, before it began, in a foiled
attempt to escape a maximum security prison, he sharpened a plastic comb into a
weapon and drove it through the eye and into the brain of Louis Pepe, a
42-year-old Bureau of Prisons guard. Mr. Pepe was blinded in one eye and
rendered nearly unable to speak.
Salim was prosecuted separately for that crime and found
guilty of attempted murder. There are many words one might use to describe how
these events unfolded; "successfully" is not among them.
The very length of Mr. Ghailani's detention prior to
being brought here for prosecution presents difficult issues. The Speedy Trial
Act requires that those charged be tried within a relatively short time after
they are charged or captured, whichever comes last. Even if the pending charge
against Mr. Ghailani is not dismissed for violation of that statute, he may well
seek access to what the government knows of his activities after the embassy
bombings, even if those activities are not charged in the pending indictment.
Such disclosures could seriously compromise sources and methods of intelligence
gathering.
Finally, the government (for undisclosed reasons) has
chosen not to seek the death penalty against Mr. Ghailani, even though that
penalty was sought, albeit unsuccessfully, against those who stood trial
earlier. The embassy bombings killed more than 200 people.
Although the jury in the earlier case declined to
sentence the defendants to death, that determination does not bind a future
jury. However, when the government determines not to seek the death penalty
against a defendant charged with complicity in the murder of hundreds,
that potentially distorts every future capital case the government
prosecutes. Put simply, once the government decides not to seek the death
penalty against a defendant charged with mass murder, how can it justify
seeking the death penalty against anyone charged with murder—however
atrocious—on a smaller scale?
Even a successful prosecution of Mr. Ghailani, with
none of the possible obstacles described earlier, would offer no example of how
the cases against other Guantanamo detainees can be handled. The embassy
bombing case was investigated for prosecution in a court, with all of the
safeguards in handling evidence and securing witnesses that attend such a
prosecution. By contrast, the charges against other detainees have not been so
investigated.
It
was anticipated that if those detainees were to be tried at all, it would be
before a military commission where the touchstone for admissibility of evidence
was simply relevance and apparent reliability. Thus, the circumstances of their
capture on the battlefield could be described by affidavit if necessary,
without bringing to court the particular soldier or unit that effected the capture, so long as the affidavit and
surrounding circumstances appeared reliable. No such procedure would be permitted
in an ordinary civilian court.
Moreover,
it appears likely that certain charges could not be presented in a civilian
court because the proof that would have to be offered could, if publicly
disclosed, compromise sources and methods of intelligence gathering. The
military commissions regimen established for use at Guantanamo was designed
with such considerations in mind. It provided a way of handling classified
information so as to make it available to a defendant's counsel while
preserving confidentiality. The courtroom facility at Guantanamo was
constructed, at a cost of millions of dollars, specifically to accommodate the
handling of classified information and the heightened security needs of a trial
of such defendants.
Nevertheless, critics of Guantanamo seem to believe
that if we put our vaunted civilian justice system on display in these cases,
then we will reap benefits in the coin of world opinion, and perhaps even in
that part of the world that wishes us ill. Of course, we did just that after the
first World Trade Center bombing, after the plot to blow up airliners over the
Pacific, and after the embassy bombings in Kenya and Tanzania.
In return, we got the 9/11 attacks and the murder of
nearly 3,000 innocents. True, this won us a great deal of goodwill
abroad—people around the globe lined up for blocks outside our embassies to
sign the condolence books. That is the kind of goodwill we can do without.
Mr. Mukasey was
attorney general of the United States from 2007 to 2009.