The Risks and Dangers of Civilian Trials for the September 11 Terrorists

Despite the legal precedent of trying foreigners who commit war crimes in military tribunals, as well as Congressional authorization to do so, the Obama Administration has decided to try the September 11 terrorists in civilian courts instead. The conspirators, who had been facing a military trial, had expressed a willingness to plead guilty. There are several risks and dangers of the Obama Administration’s decision.

Holding trial of the September 11 terrorists in New York instead of at Guantanamo Bay Naval Base in Cuba would make that city even more of a target for terrorism than it already is. Terrorists often use trials as a pretext for attacks. In addition, the massive security necessary for the trial will not only be inconvenient for New Yorkers, but costly to the city, as well.

This Obama Administration decision is inconsistent with its decision to try other al-Qaeda terrorists in civilian courts. For example, the Administration plans to try the terrorists who attacked the U.S.S. Cole in 2000 in a military court. Its rationale is the distinction between a military or civilian attack, but this distinction is splitting hairs, as September 11 was both an attack on civilians and the military. The Administration’s supporters have argued that there is precedent for trying terrorists in civilian court. That others before have been tried successfully by civilian courts does not necessarily mean it is a good idea.

Indeed, civilian trials of terrorists represent a return to the pre-September 11 mentality that terrorism is a crime, not an act of war. That mentality emboldened the terrorists to launch the September 11 Terrorist Attacks while the United States considered itself at peace, which its policies reflected, despite Osama bin Laden’s 1996 fatwa tantamount to a declaration of war. The one post-September 11 civilian trial of an al-Qaeda terrorist linked to the September 11 conspirators, Zacarias Moussaui, which took a year to conclude after he indicated that he wanted to plead guilty, should have given the Obama Administration pause. Instead, the Administration is citing this Bush Administration mistake as precedent.

Other concerns about a civilian trial for terrorists include the danger that the evidence will wither force either a revelation of American sources and methods of intelligence or an unwillingness of the U.S. to submit such incriminating evidence, which would jeopardize the possibility of a conviction, unlike in a military tribunal. In fact, the revelation of bin Laden as an un-indicted co-conspirator in a civilian terrorist trial during the Clinton Administration tipped the al-Qaeda founder off that the U.S. considered him a prime terrorist suspect. Another major concern is the federal rules of criminal procedure, unlike the rules for military tribunals, which were not applied to suspected terrorists caught on the battlefield. The terrorists could argue that their charges should be dismissed for any number of legal technicalities, which would not be applicable on foreign soil, which is one of the advantages of Guantanamo Bay. The concern, however, about the inadmissibility of evidence obtained from terrorist suspects through harsh interrogations without the presence of attorneys is not great because there had been sufficient evidence against these terrorists beforehand that caused the U.S. and its allies to capture them in the first place, and the information was obtained in order to thwart other terrorist attacks, not for evidence of guilt. Finally, another procedural concern is that the terrorists would be unable to be tried by an impartial jury in New York, which could be used by the terrorists as a reason to dismiss the charges against them or to appeal a conviction.

Unlike military tribunals, terrorists can turn civilian trials into show trials, which would give them a public platform to explain their rationale for their evil deeds – just a few blocks away from the World Trade Center. Moussai turned his case into a show trial, for example.

Despite these concerns, the Obama Administration has expressed a certainty that the terrorists will be convicted. But the outcome of criminal trials is never a certainty, especially one with such high risks for the prosecution, as opposed to a military trial, let alone all the other dangers this return to a “September 10” policy would represent. The Obama Administration also seems to be politically motivated to appear to foreigners as fairer than the Bush Administration.

These reasons do not outweigh the risks and dangers of conducting civilian trials for the September 11 terrorists and the damaging message being sent to Americans and to their allies and enemies, that the United States no longer considers itself at war with those who are at war with the U.S.