How Hard Will It Be to Convict Khalid Sheikh Mohammed?

Khalid Sheikh Mohammed and four co-conspirators detained at Gitmo are to face trial in a federal district court in New York City, where the death penalty may be sought. They had been facing trial by a military commission at Gitmo, but President Obama decided that he would prefer that the trial be in a civilian court.

U.S. Attorney General Eric Holder expressed confidence that the cases were strong, and said the trials would not be impaired by the harsh interrogations of Mohammed and others:

I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. I am quite confident that the outcomes in these cases will be successful ones.

President Obama (now known with affection in China as "Oba Mao") said:

I am absolutely convinced that Khalid Sheikh Mohammed will be subject to the most exacting demands of justice.

I doubt it.

David Horowitz and others argue that the decision is a horrendous one. He observes:

The decision to try the jihadists in a civilian court is also a decision which will divulge America’s security secrets to the enemy since civilian courts afford defendants the right of discovery. It is also a propaganda gift to Islamic murderers who will turn the courtroom into a media circus to promote their hatred against the Great Satan.

I agree -- but trial by military commission might not be much more satisfactory.

In Hamdan v. Rumsfeld, with the majority opinion written by Justice Stevens, a quite divided Supreme Court held that "the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions." Hamdan did not involve the current military commission procedures, which became law on October 17, 2006 -- in response to Hamdan.

Among the problems was that the defendant was not entitled to see all of the evidence presented against him:

That the Government has a compelling interest in denying Hamdan access to certain sensitive information is not doubted. Cf. post, at 47-48 (Thomas, J., dissenting). But, at least absent express statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him.

There were multiple other deficiencies as well, including the lack of adequate review procedures. The majority opinion concluded:

We have assumed, as we must, that the allegations made in the Government's charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge -- viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.