Pro and Con: Justice at Ground Zero. Yes or No?

Pro.

A battlefield in the courtroom.

By Eugene Robinson
11/20/2009

Critics of Attorney General Eric Holder's decision to bring the self-proclaimed mastermind of the Sept. 11 attacks and four other accused terrorists to New York for trial can't seriously believe the city will have trouble handling the expected "trial of the century" hoopla. The critics can't really think a judge is going to give Khalid Sheik Mohammed an open microphone to spew his jihadist views, or fear that a jury -- sitting just blocks from Ground Zero -- will look for reasons to let an accused mass murderer off on some technicality.

In the enemy's version of history, the West -- meaning the United States, Israel, Britain and what used to be called Christendom -- has a long history of exploiting the Muslim world. We occupy Muslim lands to steal their resources. We install corrupt lackeys as their rulers. For all our high and mighty talk about fairness and justice, we reserve these luxuries for ourselves. In this warped worldview, we deserve any atrocities that jihadist "warriors" might commit against us.

Protesting that all this is absurd and obscene does not make it go away. And our troops' military success actually helps to further the jihadist narrative about a "crusade" against Islam.

It's ironic that many of the officials and commentators who are so upset about the decision to give KSM a civilian trial were also quick to call the Fort Hood killings an act of terrorism. If the suspect, Maj. Nidal Hasan, is indeed a terrorist -- and not just a deranged man who snapped -- then his awful rampage helps demonstrate my point. Hasan reportedly considered the U.S. military deployments in Iraq and Afghanistan a war against Islam, at one point arguing that Muslim soldiers should be excused from combat as conscientious objectors. In other words, he apparently bought at least part of the jihadist line. If killing a terrorist in Kandahar creates one in Killeen, we'll never make progress.

In this context, putting KSM and the others on trial in a civilian proceeding on U.S. soil is not just a duty but also an opportunity. It's a way to show that we do not have one system of justice for ourselves and another for Muslims, that we give defendants their day in court, that we insist they be vigorously defended by competent counsel -- that we really do practice what we preach.

Even if a military tribunal would be just as fair -- and a military court might be even more offended than a civilian one by the fact that KSM was subjected to waterboarding -- a trial by men and women in uniform would be seen as an extension of the "war on Islam."

Holder's choice is not without risk. The biggest question I have is whether an impartial jury could be impaneled in New York. And while I believe the chance of an acquittal is incredibly remote, if it happened, KSM would be kept in indefinite detention anyway -- a nightmare scenario.

But there's one more huge benefit to a civilian trial: It would show the preachers of hatred and their followers that we're not afraid of them or their poisonous ideas. It would show that they haven't changed us or our ideals -- and that they never will.

I say bring it on.

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Con.

Travesty in New York

By Charles Krauthammer
11/20/2009

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.

So why is Attorney General Eric Holder doing this? Ostensibly, to demonstrate to the world the superiority of our system, where the rule of law and the fair trial reign.

Really? What happens if KSM (and his co-defendants) "do not get convicted," asked Senate Judiciary Committee member Herb Kohl. "Failure is not an option," replied Holder. Not an option? Doesn't the presumption of innocence, er, presume that prosecutorial failure -- acquittal, hung jury -- is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place.

Moreover, everyone knows that whatever the outcome of the trial, KSM will never walk free. He will spend the rest of his natural life in U.S. custody. Which makes the proceedings a farcical show trial from the very beginning.

Apart from the fact that any such trial will be a security nightmare and a terror threat to New York -- what better propaganda-by-deed than blowing up the courtroom, making KSM a martyr and turning the judge, jury and spectators into fresh victims? -- it will endanger U.S. security. 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 200 unindicted co-conspirators, including the name Osama bin Laden. "Within 10 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."

Finally, there's the moral logic. It's not as if Holder opposes military commissions on principle. On the same day he sent KSM to a civilian trial in New York, Holder announced he was sending Abd al-Rahim al-Nashiri, (accused) mastermind of the attack on the USS Cole, to a military tribunal.

By what logic? In his congressional testimony Wednesday, Holder was utterly incoherent in trying to explain. In his Nov. 13 news conference, he seemed to be saying that if you attack a civilian target, as in 9/11, you get a civilian trial; a military target like the Cole, and you get a military tribunal.

What a perverse moral calculus. Which is the war crime -- an attack on defenseless civilians or an attack on a military target such as a warship, an accepted act of war that the United States itself has engaged in countless times?

By what possible moral reasoning, then, does KSM, who perpetrates the obvious and egregious war crime, receive the special protections and constitutional niceties of a civilian courtroom, while he who attacked a warship is relegated to a military tribunal?

Moreover, the incentive offered any jihadist is as irresistible as it is perverse: Kill as many civilians as possible on American soil and Holder will give you Miranda rights, a lawyer, a propaganda platform -- everything but your own blog.

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 Barack 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.

Indeed, the perfect justice. Whenever a jihadist volunteers for martyrdom, we should grant his wish. Instead, this one, the most murderous and unrepentant of all, gets to dance and declaim at the scene of his crime.

Holder himself told The Post that the coming New York trial will be "the trial of the century." The last such was the trial of O.J. Simpson.