Civilian Courts Fight Terrorists, Too

By Clarence Page, Tribune Media Services on Nov 18, 2009

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Terrorists by definition try to frighten you into changing the way you do things. In the run-up to his trial as alleged mastermind of the Sept. 11 attacks, Khalid Sheik Mohammed's success as a terrorist is showing in us. A lot of good patriotic law-'n'-order Americans suddenly sound frightened by our own civilian judicial system.

Almost two-thirds of Americans would rather see Mohammed tried in a military court instead of a civilian court, according to a CNN/Opinion Research Corporation poll released Monday. Only 34 percent say that he should face trial in civilian court, as the Obama administration plans to do.

If a presidential election were being decided today on this issue alone, President Obama would lose, big time. But if the Bill of Rights were put to a vote, I imagine it would lose, too.

That's why it's encouraging to hear that, if Mohammed is tried in the United States, the same majority of 64 percent thinks he will get a fair trial. Most of us believe our system is fair, yet that seems to be what troubles many of us. We'd rather have Mohammed tried by a system that was a little less fair. We'd like a deck stacked more against him.

I share that sentiment. I don't want just a fair trial for Mohammed. Part of me wants assurances that he's going to hang. But, alas, a trial with an automatically assured outcome is not a trial. Calling it a kangaroo court would be an insult to kangaroos.

Still, tribunals make tantalizing red meat for politicians to dangle in front of disgruntled voters. On Sunday talk shows, perennial political hopeful Rudy Giuliani, New York's mayor during the Sept. 11 attacks, articulated the most-heard attacks against Atty. Gen. Eric Holder's decision to try Mohammed and four other Guantanamo Bay detainees with alleged ties to the 9/11 attacks in civilian court in New York.

"I don't know why you want to give terrorists advantages," he said on CNN, "and secondly it's an unnecessary risk." Risk? The current Mayor Michael Bloomberg thinks the city can handle any risk from terrorists. Besides, we should not be holding trials because they're cheap.

As for any inadequacy of civilian courts, Giuliani's sentiments contrast sharply with the praise he gave the trial of "20th hijacker" Zacarias Moussaoui in which he testified. He was "very disappointed" that Moussaoui was not sentenced to death, he told reporters, but "at the same time, I was in awe of our system. It does demonstrate that we can give people a fair trial, that we are exactly what we say we are. We are a nation of law. ... I think he's going to be a symbol of American justice."

Somehow that symbol has faded in Giuliani's mind as he worries today about civilian courts giving an "unnecessary advantage" to terrorists. In fact, our federal courts have waged an admirable war of their own against terrorists, whether the judges call it that or not. Our civilian courts have tried 195 cases of terrorism since 2001, according to Justice Department figures, and 91 percent of them have resulted in convictions.

Since Holder's career may be riding on this trial's outcome, a not-guilty verdict for Mohammed doesn't sound very likely. Holder has said he has enough evidence to win a conviction, even though Mohammed is known to have been waterboarded during interrogations. Experts like Sen. Patrick Leahy (D-Vt.), a former prosecutor who heads the Armed Services Committee, agree that the government had enough evidence to prosecute Mohammed before waterboarding took place.

In the meantime, Obama is receiving support from unusual sources. Three prominent conservatives issued a statement this weekend supporting the Obama administration's decisions to transfer terrorism detainees to federal prisons and to try them in federal court. Other conservatives have since joined the statement by David Keene of the American Conservative Union, Grover Norquist of Americans for Tax Reform and Bob Barr, a former George Republican congressman and Libertarian Party presidential candidate, all in the name of the Constitution.

"Over the last two decades, federal courts constituted under Article III of the U.S. Constitution have proven capable of trying a wide array of terrorism cases, without sacrificing either national security or fair trial standards," their statement reads in part. "The scaremongering about these issues should stop." Amen.

We Americans should turn to military tribunals only as a last resort, not because we "refuse to recognize that we are at war against terrorism" as President Obama's critics charge him, but because we need to minimize that war's collateral damage to our rule of law.

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E-mail Clarence Page at cpage(at)tribune.com, or write to him c/o Tribune Media Services, 2225 Kenmore Ave., Suite 114, Buffalo, NY 14207.