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.

There were multiple concurring opinions, as well as a dissenting opinion. There was much disagreement as to whether the Supreme Court had the authority to hear the case, even though a majority held that it did. The concurring opinions also reiterated the wide divergence from the procedures and rights of the accused in a general court martial and those in a military commission of the sort by which Hamdan was to be tried.

Very soon after the decision in Hamdan, Congress began considering legislation to authorize military commissions. A bill, substantially as requested by President George W. Bush, was passed by both houses of Congress and was signed into law on October 17, 2006. The Military Commissions Act (MCA) suspended the right of habeas corpus and allowed evidence seized in this country or abroad to be taken without a search warrant. It bars evidence obtained by cruel and inhumane treatment, except that obtained before December 30, 2005, when Congress enacted the Detainee Treatment Act.


In Boumediene v. Bush, a divided Supreme Court held that the suspension of habeas corpus as provided in the MCA was improper. In an article here, I argued that the Supreme Court’s majority has made a pig’s breakfast of the whole matter, and it is impossible to predict what will happen next other than inordinate delays in adjudicating the rights of the detainees.

Under Section 948b of the new law, various provisions of the Uniform Code of Military Justice (UCMJ) were expressly made inapplicable to military commissions:

(d) Inapplicability of Certain Provisions — (1) The following provisions of this title shall not apply to trial by military commission under this chapter:

(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.

(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination.

(C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation.

(2) Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by this chapter.

The Boumediene Supreme Court had observed in 2006:

Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.” See Bismullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring in denial of rehearing en banc). And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.


Since these matters were not before the Supreme Court, and were therefore mere dictum rather than a holding, it would be a mistake to attach great significance to them. Still, in view of the current composition of the Supreme Court, it would probably be an even greater mistake to ignore them.

It is doubtless true, as Mr. Horowitz observes, that civilian trial of a terrorist detained at Gitmo is likely to divulge all sorts of information to others, that it will be necessary for the prosecution to weigh very carefully what evidence can be used consistently with the national interest in security, and that in even the best of circumstances, it will be “a propaganda gift to Islamic murderers who will turn the courtroom into a media circus to promote their hatred against the Great Satan.”

There is another problem, however, which may trump these. I refer to the right to a speedy trial, which the MCA had expressly obviated in trials by military commission. It applies in courts martial and also in civilian criminal proceedings. If I were defense counsel for Khalid Sheikh Mohammed, one of the first things I would do would be to file a motion for dismissal of all charges because he had been captured on March 1, 2003, and incarcerated at a secret prison until September of 2006, when he was transferred to Gitmo; numerous witnesses who might have testified on his behalf are now dead or missing; and it would be impossible, at this late time, for there to be a speedy trial by jury as guaranteed by the Constitution. There are often reasons for not having a speedy trial, but a delay of six years is a tad much to base on confused governmental policy. The New York Times put it this way:


If [President Bush] and Vice President Dick Cheney had shown more faith in the laws and the Constitution, the alleged mass murderers would have faced justice much earlier.

The government would, of course, also have substantial difficulty now in locating and producing witnesses to testify against the gentleman. Were a motion to dismiss for lack of a speedy trial denied, I would move for a change of venue to someplace outside New York City, where the World Trade Center towers had been demolished, on the grounds that it would be impossible to have a fair trial there. There are currently no federal courts on the Moon, and that’s one of the few places where a suitably impartial jury might be impaneled.

Neither of these problems, or others, would have been presented in a trial by a military commission. However in view of the Supreme Court dicta noted above in Boumediene, it seems likely that the Court would look rather harshly into the procedures in the case of Khalid Sheikh Mohammed.

As noted above, the Hamdan Court in dictum observed:

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.

The decision to try Khalid Sheikh Mohammed in either a military commission or in federal district court need not have been made. He could have been left to languish indefinitely at Gitmo without trial on the grounds that there is simply no way to try him effectively or safely in a civilian court, and that if were he tried and released on a “technicality,” he would present a very clear and present danger to the citizens of the United States and others.


The decision to try the various Gitmo detainees in either a federal criminal court or by a military commission was of course a political one; it was not dictated by legal necessity. The assurances of President Obama and Attorney General Holder that everything will turn out just fine should be understood in that light. If the civilian proceedings withstand speedy trial motions and motions to change venue to the Moon, these trials will drag on for years — perhaps decades — as defense lawyers file endless motions and appeals. Meanwhile, valuable intelligence about interrogation techniques and other methods we’ve used against al-Qaeda will be revealed to the enemy during trial discovery.

I think it was the wrong decision, probably made because (as the New York Times put it):

The Obama administration has yet to completely figure out how to rectify the disgraceful Bush detention policies, but it is getting there.

I disagree with the characterization of the Bush detention policies as “disgraceful,” and don’t think the Obama administration is really “getting there.” However, that will most likely be the line taken by the Obama administration if things do not go as it has said they would.

In any event, the trial is very likely to be a three-ring circus, and consequences are quite likely to reveal the statements of President Obama and General Holder to have been incorrect and poorly considered. I have no idea if, in the event that the civilian court dismisses the charges or produces an acquittal of Khalid Sheikh Mohammed, it will be possible to retain him in detainee status. It seems likely that he will, in those circumstances, be released into society.


Even political decisions by the president of the United States should be based on things more important than obeisance to foreign opinion and trying to enhance his status with a leftist constituency.


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