The news that accused 9/11 mastermind Khalid Shaikh Mohammed and four alleged co-conspirators are to stand trial in a federal court in Manhattan has provoked no small amount of controversy and even hysterical reaction. “9/11 fiends coming here for trial -- next stop is hell!” read a New York Post headline.
For the record: A previous version of this article stated incorrectly that Syed Hashmi has spent “nearly two years” in solitary confinement, and that Atty. Gen. Eric H. Holder Jr. is the nation’s top lawmaker.
Critics denounced the decision as a victory for terrorists that would give Mohammed a platform for maligning America and move New York City “to the top of Al Qaeda’s target list,” in the words of Rep. Peter King (R-N.Y.).
Supporters, meanwhile, declared a victory for due process. The American Civil Liberties Union, which has co-represented the five defendants, reported that it was pulling out of the case now that the detainees were assured “real and reliable justice.”
But what promises to be the biggest terrorism trial in U.S. history likely will be neither the civil liberties victory its proponents claim nor the terrorist propaganda opportunity its critics fear. It is actually a safe choice for the Obama administration. This is because in recent years, the federal court system has been effectively retrofitted to all but ensure guilty verdicts in terrorism-related cases.
In scores of post-9/11 federal trials, detainee-defendants are subject to the extreme confinement measures, degraded due process and lack of procedural transparency that have characterized the detentions of enemy combatants. “Special administrative measures,” previously reserved for the most violent class of felons, keep defendants in lengthy pretrial solitary confinement, sometimes for years. The Classified Information Procedures Act, once used sparingly in foreign intelligence cases, is now invoked routinely to keep key evidence secret from defendants and their attorneys, thus hampering their ability to confront the most sensitive evidence against them.
In the ultimate legal absurdity, even the prosecutors trying the case occasionally are barred from seeing the evidence that provides the gravamen of their arguments. And sweeping “protective orders” shroud trials in secrecy and shield from dissemination even materials as benign as newspaper clippings and college transcripts.
The result is an impressive record of wins for the Justice Department. According to the Center on Law and Security, of 593 individuals prosecuted on terrorism-related charges since 9/11, 523 have been convicted.
Even in defeat the government has proved tenacious. After the three-month terrorism-financing trial of the Holy Land Foundation in Texas ended in a mistrial, prosecutors successfully retried the case last year. In a Florida case involving an FBI-informant- driven plot to attack Chicago’s Sears Tower and FBI offices, the government won on the third attempt, after two mistrials.
The District Court in Manhattan, where Mohammed and his alleged cohorts are to stand trial, has a particularly rich history in dealing with terrorism cases. This was the venue for the first World Trade Center bombing trial and a host of other prominent cases.
Two trials on the docket are a fair example of what we can expect in the KSM spectacle: Syed Hashmi, a U.S. citizen, has spent more than two years in solitary confinement on charges that he aided an Al Qaeda associate who was transporting “military gear” to Pakistan, which turned out to be waterproof socks and ponchos. The Al Qaeda associate is expected to be the government’s star witness.
Another case, that of Aafia Siddiqui, a U.S.-trained neuroscientist accused of firing at U.S. soldiers and FBI agents in Afghanistan, has been marked by such extreme secrecy that her attorneys, who have top-secret security clearances, complained that the discovery material they’ve received from the government is so marred by redactions that it is rendered nonsensical. “I can’t figure out who says what,” said attorney Charles Swift in a recent hearing. “Is the concern that I’m going to give this to the Taliban?”
What concerns critics is not so much that the government will lose the case -- Atty. Gen. Eric H. Holder Jr., sounding more like a politician than the nation’s top law enforcement officer, has said, “Failure is not an option.” The concern is about the shadow defendant in this trial: the U.S. intelligence system. The fear is that the trial will be a referendum on rendition, interrogation and torture of suspects, and a potential bonanza of law enforcement trade craft for would-be terrorists.
But if other post-9/11 cases are any guide, there is little chance that unknown details of waterboarding and other “enhanced interrogation techniques” will be forthcoming. Prosecutors have no motive to introduce such evidence and will surely seek to classify potentially embarrassing or incriminating information.
Likewise, assuming their clients don’t plead guilty, defense attorneys will seek to exclude any statements made under duress. And because Mohammed and his codefendants have repeatedly confessed to their crimes -- though reportedly the defendants have said they will plead not guilty in order to explain why they did it -- there’s plenty of unclassified material to work with.
The Obama administration has been handed a terrible legal legacy by its predecessor, in which traditional evidence-gathering methods have been hopelessly intertwined with intelligence-gathering practices that historically were never in much danger of scrutiny in open court. But this administration can’t simply restart the clock by shifting detainees to a new venue.
If the injustices of the previous administration are to be expunged, the government should openly present the facts of its wrongdoing in gathering evidence. Otherwise, the trial of the alleged conspirators will serve only to stamp the seal of justice on an unjust process. The shadow defendant -- the U.S. intelligence system -- will remain in the shadows. By avoiding that confrontation in the name of national security, the Obama administration would achieve a victory that creates only the appearance of due process, while damaging the very system of open justice that the trial is supposed to present as a model to the world.
Petra Bartosiewicz is a freelance journalist whose article in the November issue of Harper’s magazine, “The Intelligence Factory: How America Makes Its Enemies Disappear,” examines the case of Khalid Shaikh Mohammed. E-mail: firstname.lastname@example.org