The Out-Lawyer's Blog

Jihasists - Khalid Sheikh Mohammed, Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi - the 911 Five, will be tried in a New York City civilian court by order of the President of the United States 

Our president tells us, that “Khalid Sheikh Mohammed will be subject to the most exacting demands of justice”. 

Obviously our new president has never tried a criminal case.

Not one of 911 defendants is legally entitled to be in the United States, and not one of them would be legally entitled to a civilian trial here but for the wishes of our president.  

I was in Manhattan on September 11, 2001, a transformative experience about which I have written elsewhere.  Suffice it to say that New York City is a spectacularly bad venue choice for security reasons alone.  Every juror called to serve in the trial will be identified as a possible jihad target.  They might as well paint bulls-eyes on each juror’s forehead.  Will any Jewish jurors be called to serve?  Will they be excused for security reasons?  If they are, will appeal issues later be raised? 

This boneheaded venue decision is another Grand Gesture by an administration that seems to be intoxicated with such things.  If something untoward happens and lives are lost because this trial takes place in New York City, the Attorney General and the President should publicly apologize to the victims, to the American people and the world. 

The can of worms that Attorney General Holder and our Lawyer-in-Chief President have created would take a law review length article to describe.  For now, the smell should suffice.

But the choice of trial venue was not this administration’s worst mistake.  The most catastrophically stupid move, in my opinion, was to direct the adjudication of these terrorists’ guilt (especially after they had proffered a guilty plea) into the American civilian justice system in the first instance.   These were terrorist acts that reached the scope of actual war: The diversion of hijacked airlines to destroy New York’s financial center, the Pentagon and the White House would be acts of war if done by a sovereign. 

Using the civilian court system for such a case is like attempting to conduct the Nuremberg Nazi trials in a civilian court in a corner of Italy while still under fire.  But the terror-jihad war is not yet over and staging a risky show trial won’t make it so. 

Civilian criminal jury trials differ from military trials and the Bush terrorist tribunals that were outlawed by an improvident Supreme Court decision.  Among the prominent differences:  civilian criminal cases are notorious for delays, defense grandstanding, publicity-seeking jurors, the suppression of solid evidence for technical reasons, outrageous acquittals and endless, endless appeals, especially when the death penalty is imposed.

In a civilian criminal case, evidence of questionable reliability can be excluded from the trial on due process grounds.  This is one application of the so-called “exclusionary rule”.  The court has an ultimate responsibility to safeguard the reliability of the jury’s fact-determining function.  So a judge is occasionally asked to decide whether evidence of questionable provenance should be allowed, and will exclude such evidence when it might mislead the jury.  Few would quarrel with that kind of exclusion.  But in a typical American criminal case there is another kind of exclusion, one where evidence is kept out in spite of the fact that such evidence is highly reliable.  This is the punitive exclusion of otherwise good evidence, designed to teach the authorities a lesson, that the evidence was obtained in the wrong way, no matter that it leads to the truth.   This is the murder gun seized from a drug dealer’s rented dive before a proper warrant was obtained, the admissions about where the other weapons were hidden made without a proper Miranda warning and so on.  

If I were Attorney general Holder, I’d lose sleep during this unnecessary and risky show trial. 

JBG