Trying Terrorists

I have to admit more than a little bit of frustration over the hue and cry, mainly from the right, about the upcoming trial of Khalid Sheikh Mohammed to be held in the United States District Court for the Southern District of New York.  There seems to be some sort of fear that (pick as many as you like) a) national security interests will be compromised if the trial is held there and thus innocent people will be endangered, b) that KSM will somehow use this public forum to grandstand and promulgate his ideas, c) that the Justice Department will use the trial as an opportunity to make political attacks on the Bush Administration, or d) the result of the judicial process will be an acquittal or a reversal of a conviction on appeal, and we cannot accept even a tiny risk that KSM might go free. 

For the record, here are this blog’s positions on these issues:

  • If the prosecution does use the trial of KSM as an opportunity to score political points, this would be wildly inappropriate and should be censured by Congress.  The prosecution will be asking for the death sentence, and that means we need to take the proceedings seriously.  But we can’t not have trials because there is a risk that prosecutors might not conduct themselves properly.
  • KSM has been in custody for many years now and there is functionally no chance that he knows or could broadcast relevant information to his co-conspirators.  He might propagandize a bit in an outburst at trial, but there are ways for the court to control that — for instance, by confining him to a room where he watches the proceedings on closed-circuit television, the same way a court can do for any defendant who refuses to conduct himself appropriately during any trial.
  • The risk of KSM going free is functionally zero.  Even if he is acquitted, there are scores of other crimes of which he is suspected which we can investigate and prosecute him for.
  • National security information relative to terrorism is of its nature rapidly evanescent. Whatever information we had that we would use to describe the case against KSM is several years old.
  • If there is national security information that cannot be safely disclosed to the public, then the government should file a motion with the District Court to have the trial conducted before a military tribunal or in closed session. 

As to that last point, there is no reason this cannot be done consistently with due process. 

Due process is a fundamental Constitutional right, to be sure, but then again so are the rights to own weapons, speak and worship freely, vote, and be protected from unreasonable searches and seizures.  Constitutional rights are strong and important, but they are not absolute. All of those rights can be circumscribed under appropriate circumstances, to wit, when the government can show a compelling interest requiring them to be circumscribed and when the manner of circumscribing them is narrowly-tailored to acheive that compelling interest while allowing the right to be realized as much as is possible under the circumstances.  This is a difficult, but not impossible, thing to do — and a military tribunal for a trial that invovles state secrets strikes me as a reasonable and achievable way to threat that needle. 

There is no reason for anyone to think that the finders of fact in a military tribunal would not be fair to KSM — they would probably be more fair than a civilian jury, if you think about it — and there is no reason to think that the procedures in the miltiary trial would not be as fair, if not more fair, than the procedures that would be in place in a civilian trial.

Due process requires that KSM be given a lawyer, preferably a lawyer of his choice.  There is no reason, however, that the lawyer cannot be screened to determine if the lawyer is a security risk, and a lawyer who represents an unacceptable security risk can and should be excluded if the nature of the case requires the lawyer to handle and evaluate sensitive or confidential information.

Due process requires that the decision to do all of these things be made by an Article III judge, one who is independent of the President and Congress.  That judge can be evaluated as a security risk also before the government discloses any sensitive evidence, and the evidence should be disclosed and reviewed in camera with a presumption that it will not be made public.

Due process requires that he be given a trial.  As I’ve written previously, we should afford due process not for his benefit but because it is a moral imperative upon us that we do so.  We are better than him, and that’s precisely why we will treat him better than he treated his victims.

In fact, let’s be clear — KSM is human filth.  I will not stand idly by and watch our own government shred the Constitution for the sake of such a low-life as he.  He has been well and thoroughly defanged.  Putting him on trial “like a common criminal” is exactly the sort of demeaning behavior which is appropriate.  He should be treated like a common criminal, because that’s what he is.  A murderer, a conspirator, and a bloodthirsty zealot.  But he is not an existential threat to our nation — he’s a scumbag but he isn’t as important as that.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

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