WU community weighs in on the ‘Trial of the Century’
The Obama administration’s choice to move forward with a civilian trial, which was publicly announced by Attorney General Eric Holder, sparked a highly intense political debate but represented a move toward bringing enemy combatant detention to a resolution.
The trial is set to occur in a courtroom just a few blocks from the World Trade Center site.
Mohammed and four other accused co-conspirators will be tried together. Holder intends to instruct the prosecutors handling the case to seek the death penalty for the defendants. Even though these men will be tried using the civilian system, five other detainees from Guantanamo Bay will be tried in a military tribunal.
The administration’s decision received instantaneous criticism from people in the New York area, talk show hosts, congressmen and relatives of Sept. 11 victims. Those in opposition to the idea say that the suspected terrorists do not deserve access to the judicial system. In addition, many people fear the possibility of an attack during the proceedings.
The Justice Department’s decision to try these non-citizens in an American court has precedent, according to political science professor Denise Lieberman.
“Non-civilians being tried in regular courts is nothing new,” Lieberman said. “The procedural rights confer regardless of who the defendant is. If you commit a crime that is subject to jurisdiction of U.S. law, you have a right to a trial. You have all the same rights as any other defendant.”
While enemy combatants do not have a right to a civilian trial, they do have a right to due process.
“The Supreme Court said they have the right to some measure of judicial process,” law professor Greg Magarian said.
Onlookers in the United States question why the administration chose to try these five men in civilian court, rather than in a military one. According to lawyers familiar with military tribunals, the defendants in those situations have fewer courtesies extended by the court.
“Military tribunals operate out of the court system. They are done in secret and not open to the public,” Lieberman said. “The rules are all different. There is no jury of peers and there is no judge or jury like in a criminal case. They are treated like military officers. The rules of evidence are different also.”
Holder and the Justice Department are confident in convictions for the subjects, but hinted that the government has a right to detain anyone who might be an enemy combatant, because Congress has the power to take military action against al-Qaida and other terrorist groups.
“The position of the administration is that trying these defendants in criminal court lends credibility to the proceedings,” Lieberman said.
According to Magarian, the administration most likely would not have proceeded with such a publicized civilian trial for these defendants if it did not believe that it had a reasonable chance at conviction.
“I’m pretty sure [the Obama administration] would not risk losing if they thought they were really risking something,” Magarian said. “If the administration and the lawyers working on this case thought there was some procedural device that would get these guys off their commitment to doing this in civilian court would dissipate really quickly. They probably think based on what we all know, that the chances of conviction are through the roof in either a civilian court or a military tribunal. They hope this will make this country look good in international eyes.”
During the summer, a taskforce comprised of members of the Justice Department and the Pentagon created a system designed to determine what to do with each individual enemy combatant. Factors including methods of evidence gathering, victim identity and the location where the crime took place were included in the formula.
New York City Mayor Michael Bloomberg endorsed the idea of holding the trials in New York, while New York Gov. David Paterson did not support the plan.
Many people are concerned that the defendants will not be able to secure a fair trial. According to Lieberman, proving that a defendant will fail to receive a fair trial is a difficult proposition.
“For [an absence of a fair trial] to exist a number of things have to occur,” Lieberman said. “It has to be more than a high-profile case, for you have to show that people can’t render a nonbiased verdict. We have had 150 criminal prosecutions in the war on terror. We try high-profile defendants all the time.”
Although many question the possibility of a fair trial, others contend that New York City is an ideal place to find an unbiased jury pool.
“If they tried to move it out of New York City, they would lose their motion because the jury pool is gigantic and the ability to get unbiased jurors is high because of high population concentration,” Magarian said. “I would guess that any attempt to do that there would be no sufficiently strong reason to grant a motion for a change of venue.”
The Gallup polling organization found that 51 percent of the country believes it would be better to hold the trial outside the United States, compared to 42 percent who think it would be better to hold it in New York City
By an even larger margin, 59 percent to 36 percent, the American public believes that Khalid Sheikh Mohammed should be tried in a military court, versus a civilian venue.
Republicans are overwhelmingly opposed, and Democrats are the only group to favor civilian trials for terrorists, but barely, at 51 percent for and 43 percent opposed.
More than 90 percent believe Mohammed will be convicted, and nearly 80 percent want to see him executed.