Try Again

Now that U.S. Attorney General Eric Holder appears ready to abandon the decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in a New York federal court, he should also reconsider the very logic of holding civilian trials for Guantánamo detainees. Holder has sought to paint a stark contrast between the legal approaches of the Obama and Bush administrations and to demonstrate the White House’s commitment to the rule of law. Yet this trial represents a roll of the dice that undermines both objectives.

The president and the attorney general have confidently predicted the death penalty for Mohammed, while simultaneously insisting that he will receive a "fair trial." But what does this mean? A fair trial presumes that the state will respect the outcome. While the possibility of acquittal might seem remote, Mohammed’s lawyers have significant legal grounds to challenge the evidence against him and its means of extraction. The administration is therefore obliged to make plans for this outcome.

What then are the administration’s options in the case of an acquittal? Preordained permanent incarceration and death cannot be the only possible outcomes, without respect to the jury’s decision. That would be wholly at odds with the very idea of a fair trial. Yet the risks to U.S. national security of Mohammed’s release are so compelling as to suggest that it would be inconceivable to let him go. We certainly hope it is inconceivable.

If Mohammed is not to be imprisoned indefinitely in a secure U.S. facility, he would have to be similarly incarcerated abroad. This simply revives the whole question of the United States using "offshore" jurisdictions, such as Guantánamo Bay, to avoid giving constitutional protections to prisoners. Thus, subjecting Mohammed to a civilian criminal trial suggests a cynical calculation by the attorney general that the odds of conviction are high enough that the trial will look fair after the fact. Really, the jury will have done nothing more than provide political cover for Mohammed’s execution. The question of whether Mohammed will ever be a free man has already been decided.

Under these circumstances, the correct procedure is to try Mohammed for war crimes under 18 United States Code, section 2441. Al Qaeda is avowedly at war with the United States, and the attack on the World Trade Center — an unwarranted attack on a civilian target — was clearly a war crime.

The trial should take place before the military commission established by Congress and confirmed by the Supreme Court — and to which the attorney general has already, in baffling contrast, assigned the case of the accused USS Cole bombing planner Abd al-Rahim al-Nashiri. Such an approach creates no legal, ethical, or security dilemmas for the United States. If Mohammed were to be acquitted by the commission, he could still be detained under the Third Geneva Convention.

This protocol contemplates that lawful enemy combatants can be detained indefinitely by the belligerent of which they are a captive. After the end of hostilities, such prisoners are usually exchanged. The convention grants certain rights to prisoners of war who are lawful enemy combatants — that is, among other things, combatants who wear the uniform of, and are regular members of, the armed forces of a belligerent country. Mohammed clearly does not fall into this category. Instead, he must be classified as an unlawful enemy combatant — a person who, like a spy, is not entitled to the protections of the convention. Clearly, though, he can have no greater rights than a lawful enemy combatant.

The facts of this case therefore point to the proper legal procedures for ending the limbo of Mohammed’s Guantánamo detention. Unlike the attorney general’s approach, which makes a mockery of the rule of law by pretending that the administration accepts the necessary legal implications of acquittal by a civilian court, trying Mohammed for war crimes under current U.S. laws avoids such hypocrisy. If Mohammed were to be acquitted, or sentenced to less than capital punishment, as is certainly possible in a civilian criminal court, he could still be lawfully detained until the end of hostilities. Accordingly, the United States would be acting within its legal rights if it kept him in U.S. custody, even though acquitted of war crimes, until the threat of al Qaeda was extinguished.

No doubt, the attorney general had foreign public opinion in mind in choosing to subject Mohammed to a civilian trial rather than a military one. But if his aim was specifically to restore global faith in America’s respect for the rule of law, this decision only risks weakening it further.