Politics & Society

The 9/11 Trial: Selling Out the Rule of Law?

Irene Senfter

giovedì 18 marzo 2010

For some it is about painful memories, for some about civil rights, and for others it is plainly – politics. As the debate surrounding the 9/11 trial shows, American justice is vigorous but once again firmly leashed to the Oval Office.

Last November Attorney General Eric Holder has announced his decision to try Khalid Sheikh Mohammed, the mastermind of the 2001 attacks, in a federal court in Lower Manhattan. A wildfire of criticism has been raging ever since. President Obama is fueling the flames by denying his voice to the rule of law.

Republicans argue that Mohammed is an enemy combatant, and therefore belongs to a military tribunal. Senator Lindsey Graham (R-SC) recently presented legislation to cut off funding for the trial of 9/11 conspirators in civilian courts. He believes “It is inappropriate to give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen. Civilian trials will be unnecessarily dangerous, legally messy, […] and very expensive.” Several Democratic Senators are supporting his view.

George W. Bush has set up military tribunals after 9/11 in order to try accused terrorists. Defendants in these commissions are offered fewer legal protections than in civilian courts, such as the right to public proceedings and a trial by jury. Military officers serve as judges and the right to an appeal is not guaranteed.

Highly controversial since their inception, these tribunals have been reformed by the Obama Administration in 2009. Nowadays they do not introduce trial statements obtained through torture. However, as Kenneth Roth, the Executive Director of Human Rights Watch, points out in his recent “Foreign Affairs” article, the commissions continue to suffer from a lack of independence, controversy about the offenses they cover and untested rules of procedure. They have tried only three cases since 2001, none similar in scale to the 9/11 attacks. One of the defendants is serving a life sentence, whereas two were sent to Australia and Yemen respectively. They are now walking free.

Civilian courts, on the other hand, have established a track record in a multitude of cases, including high profile murder and terrorist trials. NYU’s most recent Terrorism Trial Report Card identifies 174 individuals who were "convicted of terrorism or national security violations" by civilian courts between September 2000 and September 2009 (25 defendants were released).

Which is the correct form of trial for Mohammed and his conspirators? The Bill of Rights provides the answer. The first ten Amendments to the Constitution were drafted to spell out the immunities of citizens, in order to protect them from oppression by their own federal government. The 5th Amendment asserts, “No person shall be deprived of life, liberty, or property, without due process of law”.

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These words require the government to observe proper and traditional methods in depriving one of an important right. The Constitution extends to everyone inside the United States, but U.S. courts have consistently ruled that U.S. law applies even to detainees at Guantanamo. Civilian courts, but not military commissions, are designed to grant due process.

Holder believes that his prosecutors have built a powerful case with maximum chance of success. In an interview with the New Yorker’ s Jane Meyer, Holder explains how his driving concern is that the case not rest on torture. “It’s a statement about what this Administration is about,” he said. “It’s a statement about this Attorney General.”

To the astonishment of his liberal base, Obama is wavering in his support for Eric Holder. The President has fallen for the political horse-trading that is Washington’s bread and butter. He is effectively selling out values engraved into the American Constitution.

It was President Obama who appointed Holder. It was his campaign and his White House that highlighted the importance of an independent Justice Department. However, a different picture has emerged over the recent weeks.

The White House has put mounting pressure on Holder to review his decision. As Evan Perez and Jonathan Weisman from the Wall Street Journal report, White House officials are negotiating a deal with Sen. Graham to facilitate the closing of Guantanamo.

One cannot help but think that Obama is weighing his campaign pledges and calculating which one will yield more political capital eight months before the midterm elections. Clearly, Guantanamo brings more pounds to the scale.

The White House’s interference with Holder and his Justice Department is staining the nation’s reputation. Obama’s supporters, but also his foes, expect him to back an Attorney General who defers to the rule of law. They remember the President’s Inaugural Address, where he rejected as false “the choice between our safety and our ideals.”

The President’s flip-flopping on an issue of civil right ought to be an eye-opener. Somebody has settled into Washington, at last.