The bad choices and likely worse outcomes
The weekend news reports and talk show discussions are full of viewpoints regarding the announced terrorism trials to be held in New York City. Former New York Mayor Rudy Giuliani remarked on the security threats trials in New York would pose as well as the publicity platform which such trials may provide to the defendants. Meanwhile, the AP reports Senator Patrick Leahy D-Vt, chairman of the Senate Judiciary Committee expressed the opinion, "If someone murders Americans in this country, they should be tried in the U.S" Senator Leahy has apparently missed the Supreme Court interpretation that the prisoners held in Guantanamo are within the U.S. at least for the purposes of access to the federal courts.Senator Jack Reed, D-R.I., also commented on holding the trials in New York. He mentioned that the terrorists to be tried want to be considered holy warriors or jihadists which could be corroborated by a military commission trial. Reed is quoted as saying: "if we try them before military officers, that image of a soldier will be portrayed by the Islamic community. That's not the image we want."The real muddle created by pursuing a criminal trial in federal court may be directly connected not to security, or sound bites, but to the legal details of trying the defendants. Senator Reed's comments suggest the desire to see the acts committed by those to be tried as criminal acts amenable to a criminal trial. If we accept that reasoning, we must also consider the due process requirements that a criminal trial requires.The defendants for the trials in New York are reported to be Khalid Sheikh Mohammed, Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi.According to the London based Telegraph Mohammed confessed to Yosri Fouda, an al-Jazeera reporter that he took part in the planning for the 9/11 attacks on New York in 2001 (Attacks depicted in the accompanying Pulitzer prize winning photo by Steve Ludlum, New York Times staff photographer). He was captured in March 2003 at a house in Rawalpindi Pakistan. He made his al-Jazeera confession alongside Ramzi bin al-Sibh. Although he allegedly participated in the planning for 9/11, al-Sibh was unable to get a U.S. visa and was unable to directly participate in the attacks. Walid bin Attash is suspected of training some of the 9/11 hijackers while Mustafa Ahmad al-Hawsawi is supsected of organizing the financing for the 9/11 attackers. Ali Abdal Aziz Ali is the maternal nephew of Mohammed and is also believed to have participated in the financing and logistics for the 9/11 attacks. 18 USC 2331 provides definitions for the following criminal articles relating to terrorism. It appears to be limited in application by the the apparent intent of the participants. The required elements of the definition are that overt acts are intended to coerce a civilian population, or influence the policy of a government by intimidation or coercion or to affect the conduct of a government by mass destruction, assassination or kidnapping and with the overt acts occuring within United States territory.Terrorism penalties are prescribed in the following section 2332. The death penalty in this section is allowed only for murdering a U.S. national outside the United States but participation in a conspiracy resulting in murder is not a capital offense.It would seem that the conspiracy that each of the defendants are accused of participating in cannot result in a death penalty finding. The elements of the offense with regard to intent also would seem difficult to establish and prove. Indeed it is entirely possible that the intent of the attack was simply to cause death and destruction and not necessarily to coerce the population, influence government policy or affect the conduct of the government. It is possible however that the last element, affecting the conduct of the government to withdraw military forces from within the claimed Moslem caliphate may have been a motive.Before the elements can be proved however, the government will need to establish that the arrests of the defendants took place pursuant to a warrant properly sworn and issued and that the defendants were given the due process protections required under the fourth amendment such as advise of the charges, warnings against self incrimination, access to effective counsel, and opportunity for writ of habeas corpus. During the trial they will also need to be given access to call witnesses and confront all witnesses against them. These may be problematic.When we look outside the criminal process, we can consider the actions of the defendants in terms of acts of war. If they were acts of war they could be held as prisoners though out the duration of the conflict until properly exchanged. If they were acts of war, and they were combatants, the military forces of the United States would be obliged to kill them whenever or wherever found unless they surrendered or became incapable of defense. If they were acts of war the intent of each individual participant is not subject to review, as each combatant is equally subject to the use of deadly military force against them without regard to their individual circumstances, motives or intent. Violations of the law of war committed during the conduct of war are separately and individually punishable.Taking all of the above into consideration, it is substantially likely that the criminal prosecutions against these defendants may founder on the legal issues and the administration may come to regret wading into this legal quagmire, especially for the sake of denying jihadist status to the defendants.