Alex Dershowitz: America is on trial as much as Khalid Sheikh Mohammed
[Alex Dershowitz is Felix Frankfurter professor of law at the Harvard Law School.]
The first great terrorist trial of the 21st century will take place in the shadow of the World Trade Center. The Obama administration has announced that Khalid Sheikh Mohammed, the self-confessed mastermind of 9/11, will be subjected to an ordinary criminal trial in the federal court of New York. He will almost certainly be charged with the mass murder of nearly 3,000 individuals, and could possibly face trial for the death of Wall Street Journal reporter Daniel Pearl, whom he claims to have beheaded in Pakistan.
The form of the indictment isn't yet clear – whether it will be a conspiracy or RICO charge, or whether it will include special terrorist counts as well. Whatever the form, the substance of the charge will be that Mr. Mohammed and his co-defendants murdered more people than anyone who has ever faced justice in a U.S. court.
Despite the fact that Mr. Mohammed has confessed to virtually everything, his trial will face daunting challenges, unless he decides to plead guilty, as he tried to do last year when he sent a note to a military judge at Guantanamo. If he changes his mind and decides to fight the charges, he will have powerful legal weapons at his disposal.
Foremost is the reality that he was subjected to torture, both physical and psychological. He was waterboarded, which clearly amounts to torture under the law. It was also reported that, when he was arrested, his young children were apprehended. If this is true, his lawyers will surely insist that the circumstances surrounding the detention of his children, particularly whether they were used as bargaining chips, must be fully developed and exposed...
... The Bush administration had defended the use of waterboarding as a legitimate, if extreme, technique for eliciting valuable intelligence information. It is doubtful the Obama administration will try to defend that tactic, or argue that evidence adduced as a result of waterboarding should be admissible in a criminal case. The bottom line is that current prosecutors will probably have to prove the case against Mr. Mohammed without relying on any statements that resulted from torture, or any evidence that is the fruit of unconstitutional interrogations.
Another daunting obstacle that will be faced by prosecutors will likely be the common defence tactic called “graymail.” Under this variation on blackmail, defence attorneys demand that the government turn over sensitive and classified intelligence information deemed necessary to the defence. If they refuse to do so, the defence moves for dismissal of the indictment. Federal judges are sensitive to the potential abuse of this tactic and will insist that the material that is sought must be relevant to the defence. But if it is relevant, the tactic can be extremely effective...
... In this case, the United States will be on trial as surely as Mr. Mohammed. Much is at stake, but the Obama administration's decision to trust civilian courts is a good first step.
Read entire article at The Globe and Mail
The first great terrorist trial of the 21st century will take place in the shadow of the World Trade Center. The Obama administration has announced that Khalid Sheikh Mohammed, the self-confessed mastermind of 9/11, will be subjected to an ordinary criminal trial in the federal court of New York. He will almost certainly be charged with the mass murder of nearly 3,000 individuals, and could possibly face trial for the death of Wall Street Journal reporter Daniel Pearl, whom he claims to have beheaded in Pakistan.
The form of the indictment isn't yet clear – whether it will be a conspiracy or RICO charge, or whether it will include special terrorist counts as well. Whatever the form, the substance of the charge will be that Mr. Mohammed and his co-defendants murdered more people than anyone who has ever faced justice in a U.S. court.
Despite the fact that Mr. Mohammed has confessed to virtually everything, his trial will face daunting challenges, unless he decides to plead guilty, as he tried to do last year when he sent a note to a military judge at Guantanamo. If he changes his mind and decides to fight the charges, he will have powerful legal weapons at his disposal.
Foremost is the reality that he was subjected to torture, both physical and psychological. He was waterboarded, which clearly amounts to torture under the law. It was also reported that, when he was arrested, his young children were apprehended. If this is true, his lawyers will surely insist that the circumstances surrounding the detention of his children, particularly whether they were used as bargaining chips, must be fully developed and exposed...
... The Bush administration had defended the use of waterboarding as a legitimate, if extreme, technique for eliciting valuable intelligence information. It is doubtful the Obama administration will try to defend that tactic, or argue that evidence adduced as a result of waterboarding should be admissible in a criminal case. The bottom line is that current prosecutors will probably have to prove the case against Mr. Mohammed without relying on any statements that resulted from torture, or any evidence that is the fruit of unconstitutional interrogations.
Another daunting obstacle that will be faced by prosecutors will likely be the common defence tactic called “graymail.” Under this variation on blackmail, defence attorneys demand that the government turn over sensitive and classified intelligence information deemed necessary to the defence. If they refuse to do so, the defence moves for dismissal of the indictment. Federal judges are sensitive to the potential abuse of this tactic and will insist that the material that is sought must be relevant to the defence. But if it is relevant, the tactic can be extremely effective...
... In this case, the United States will be on trial as surely as Mr. Mohammed. Much is at stake, but the Obama administration's decision to trust civilian courts is a good first step.