Op-Ed: 9/11 Trial Should Be Military Tribunal

In 9/11 News on November 24, 2009 at 10:22 am

Allan Gerson, who represents 9/11 families, wants 9/11 trial to be military tribunal, saying that 9/11 was an act of war:

The Obama administration’s remarkable decision to hold the trial of Khalid Shaikh Mohammed and other masterminds of 9/11 in a civil court in New York, rather than use the conventional military tribunal structure, rests on one fundamental pillar: It is the moral thing to do. It will demonstrate to friends and foes alike that unlike the Bush administration, the Obama White House is truly committed to the rule of law.

Across the globe, or so the scenario goes, viewers will be riveted to TV screens as they witness American justice: the application of the full panoply of procedural rights of due process accorded to the ordinary criminal now applied, for the first time, to the evildoers of 9/11.

In fact, a trial in New York is likely to have exactly the opposite effect, demonstrating that the decision to bypass the military tribunal apparatus lacks any moral force. Moral force, as articulated in prevailing international law nearly since its inception, requires that we distinguish acts in times of war from those in times of peace. In times of war, the balance shifts. Individual civil liberties can be curtailed in order to fend off imminent harm. Military tribunals have traditionally been set up for this purpose, distinguishing the ordinary criminal who acts outside the law from the soldier who abides by a code of conduct at odds with our own core beliefs.

In moving the proceedings away from a military tribunal to a federal court we destroy this fundamental moral distinction between belligerents and nonbelligerents. The families of the victims of 9/11 rightfully believe that their loved-ones died as a result of wartime acts. They rightfully believe that radical Islam had declared a global jihad against the United States. They rightfully believe that the key defendant, Khalid Shaikh Mohammed, was a key soldier in that war, and that he was no ordinary murderer, but a war criminal.

If, in fact, 9/11 was an act of war, then by definition a military tribunal is the appropriate venue for trying war criminals. This has never been the responsibility of civilian courts. Thus, whether the Bush administration’s call for a war on terrorism was indeed technically a war is of no relevance. What is relevant is that radical Islam declared war on the United States; that 9/11 was the deliberate expression of their wartime agenda; and that its perpetrators, under U.S. and international law, were nothing less than war criminals.

Reasons cited by Attorney General Eric Holder and other proponents of a shift from military tribunals fail scrutiny. The contention — implied or implicit — that military tribunals are closed proceedings and that a civilian trial, by contrast, is open, is simply not true. The most open military tribunal of all time was the one convened at Nuremberg in 1946; it held 403 public sessions of the trial of major Nazi war criminals.

Moreover, there were no restrictions on access by the press, including cameras. As concerns present-day military tribunals, there is no prohibition in their governing laws on being fully open to the public.

While it is true that military tribunals have in the past not accorded defendants the full range of procedural safeguards applicable in a criminal trial, this has changed in recent years. Section 949l(c) of the Military Commissions Act of 2009 specifically provides that the burden of proof, which rests on the government, is nothing less than that applicable in a criminal trial: beyond a reasonable doubt. Moreover, the allowances for the use of hearsay and coerced evidence have been eliminated by the Military Commissions Act of 2009. If one truly wants to have a “show” trail of U.S. fairness, there is no better model than what the military courts would do.

Finally, the use of a military tribunal would be understood around the globe. No country other than the United States has ever suggested that war crimes be tried in ordinary courts. The true moral advantage lies in demonstrating that military courts can live up to the promise of the rule of law.

Regardless of whether a civilian court at enormous additional expense is employed, or a military court, we should not delude ourselves into thinking that a trial at either venue will serve as a teachable moral lesson for the world — either as to the evils of 9/11 or the rendering of justice to its perpetrators. Nuremberg, which involved crimes of an enormously greater magnitude, ended up, after a brief flurry of public interest, to only garner occasional public interest when a dramatic witness was introduced. The bulk of the sessions at Nuremberg, and certainly those before a contemporary civilian or military tribunal, are guaranteed to be seen by the viewing public as dull and repetitious.

There is also another cost to forgoing the traditional route. The 9/11 families do not deserve to be doubly victimized: by the atrocity itself, and by the falsification of history to create the impression that their loved ones were the victims of some aberrant murderer who flouted the law. Rather, these deaths were at the hands of a committed faction of radical Islam that initiated war against the United States and made the thousands of people at the World Trade Center their primary target. Wartime acts deserve to be treated as wartime acts.

Allan Gerson, a former deputy-assistant attorney general and counselor for international affairs in the Reagan administration, is involved in the representation of 9/11 families in their lawsuit against various Saudi financial institutions.

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