Khalid Sheikh Mohammed Trial Will Be a Three-Ring Circus

Years after the circus-like trials of Sheikh Omar Abdel-Rahman and the 1993 World Trade Center bombers, Attorney General Eric Holder, acting for the president, has asked for a repeat performance. He is ordering trials in New York of five men who finally succeeded in the original plan to bring down those towers and, in the process, kill almost 3,000 civilians.

There is every reason to believe that in these trials the government may face even more substantial Sixth Amendment hurdles than it did in the original World Trade Center case -- hurdles relating to the defendants’ rights to counsel, to subpoena witnesses, and to obtain access to classified information regarding the detention abroad of terrorists. Then there is their treatment while in detention and the names of states and state actors who assisted us in bringing to heel those who murder us here and abroad.

Holder announced on Friday that Khalid Sheikh Mohammed and four of his co-conspirators in the 9/11 attacks on the United States will be tried in a New York courtroom. They are not the only detainees at Guantanamo whom the government intends to try, nor the only detainees that the government intends to try in the United States:

Of the 215 detainees who remain at Guantanamo Bay, nearly 90 have been cleared for repatriation or resettlement in third countries, according to an administration official. But more than 30 of those are Yemeni, and the administration is reluctant to send them home to a country plagued by a resurgent al-Qaeda and civil strife. A deal to send some Yemenis to Saudi Arabia for rehabilitation is all but dead, the official said. Other detainees are resisting repatriation, and the administration's special envoy, Daniel Fried, is still searching for enough countries to resettle the rest.

As many as 40 detainees could ultimately be brought to trial -- some in federal court and some in military commissions. Both federal and military prosecutors have also been discussing plea agreements with lawyers for detainees, according to sources who requested anonymity because of the sensitivity of the talks.

Excluding those detainees destined for transfer or trial still leaves as many as 75 inmates who will probably be held in some form of prolonged detention because they are too dangerous to release but cannot be prosecuted -- a sizable category not anticipated by some in the administration until they started to read classified files, a number of government officials said privately.

The stated reason for trying the 9/11 plotters here, while the five detained USS Cole attackers will face a military tribunal, is that the 9/11 plotters attacked civilians and the Cole plotters attacked the military. It seems a flaccid argument to me. It does, as well, to the Wall Street Journal’s James Taranto, who concludes:

[T]he administration is conducting a limited number of civilian trials of high-profile terrorists for show, so as to win "credibility" with the international left. These trials will differ from an ordinary show trial in that the process will be fair even though the verdict is predetermined. But people who wrongly think that either military commissions or detention without trial are unjust will not be satisfied with some detainees getting civilian trials--unless, of course, they are simply eager to be impressed by Barack Obama.

(Here is a study of civilian trials and military tribunals.)