The Right To A Fair Trial
By Harris Sherline
November 16, 2009
Is it a good idea to try Khalid Sheik Mohammed (KSM) and four other terrorists in New York City for the 9/11 attacks on the World Trade Center in 2001? Attorney General Eric Holder's November 13 announcement to do just that immediately stirred up strong feelings, pro and con, about the wisdom of the Obama administration's decision.
Wikipedia notes, "The right to a fair trial is explicitly proclaimed in Article Ten of the Universal Declaration of Human Rights, the Sixth Amendment to the United States Constitution and Article Six of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world." A fair trial requires a competent, neutral and detached judge and jury, witnesses who are free of influence and adequate legal counsel.
That said, what a "fair trial" in NY City for KSM and the other terrorists is likely to mean has very different connotations for many Americans.
One side tends to see it as an opportunity to showcase America's justice system to the rest of the world in general and Muslims in particular, in the belief that it will demonstrate the fairness and equity that is accorded even this nation's worst enemies. They believe the city of New York is well equipped to handle the risks of such a trial in a U.S. Federal court, both judicial and security concerns, and that the case is a slam dunk for conviction that will finally lead to the execution of those responsible for the murder of over 3,000 people in the heart of Manhattan on September 11, 2001.
Elisa Massimino of Human Rights First commented, "It treats these perpetrators as the criminals they are, depriving them of the warrior status which they crave and the military commissions facilitated."
Another important reason for conducting this trial in New York is to rectify the taint the current administration believes was caused by the way in which KSM was captured and subsequently waterboarded during his interrogation by the Bush administration.
Jeffrey Tobin, CNN's legal analyst, observed that the trial will perhaps be the biggest "challenge in the history of federal law enforcement to produce a fair trial." Tobin further noted that the defense will argue that the extensive waterboarding of KSM (183 times) is "misconduct that means the whole case should be thrown out." However, Attorney General Holder points out that there is sufficient evidence to convict that has not yet been released and that the government will seek the death penalty.
The decision to move the trial to N.Y. City was immediately met with an outcry of opposition.
In a November 13 Politico article ("N.Y. terrorist trial raises stakes"), Josh Gerstein reported, "Families are furious about this," said Debra Burlingame, whose brother Chic Burlingame was the American Airlines pilot of one of the planes hijacked on September 11..."more than 300 family members have implored the administration not to move the trial to New York."
Gerstein also points out that there is a risk a judge could dismiss all charges because of "outrageous government conduct."
Senator Lindsay Graham (R-SC) has attempted to pass legislation that would force the administration to keep the 9/11 planners before military courts, expressing the concern that trying KSM in civilian court would be a "huge mistake" that would also make it more difficult to try lower-level Al Qaeda members in military tribunals.
There are also a host of security concerns associated with conducting this trial in lower Manhattan, such as protecting the judge and members of the jury from threats to themselves and their families, risk of harm to New Yorkers in the event of an attack on the streets when prisoners are moved. Mayor Bloomberg is confident the City is equal to the task, noting that the NY Police Department is accustomed to dealing with similar problems on a regular basis.
However, former Mayor Rudy Giuliani sees it quite differently and has expressed both outrage and concern about the safety and security issues involved, in addition to many of the legal issues that are raised as a result of transferring this case to the federal courts.
The core issue in all of this is the Obama administration's position that terrorism should be treated as a criminal matter and dealt with by the criminal justice system as opposed to fighting a war (on terror), notwithstanding the fact that Osama bin Laden (and Al Qaeda) openly declared war against the United States and the West in a news conference on May 26, 1998.
My own conclusion is that the decision of the Obama administration to try KSM and the other terrorists in New York is more about politics than justice. I believe they see it as another opportunity to fault the Bush administration for another situation they believe was not handled properly.
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Read more of Harris Sherline's commentaries on his blog at "www.opinionfest.com"
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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.