After years of controversy, the Obama administration has announced that Khalid Sheik Mohammad, or as the media calls him, the “Mastermind behind the attacks on September 11, 2001”, and his four co-conspirators will be tried in front of four separate military trials at their current place of imprisonment in Guantanamo Bay, Cuba. This announcement is a tactical issue for the administration, whose previous stance stated that Mohammad and his henchmen should be given a spot in civilian courts in New York City, where their crime was committed. The change brings into consideration Congress’ newly enacted legislation that prohibits any detainee at Guantanamo Bay from being brought to the United States under any circumstance.
Before the administration’s recent ruling, Khalid Sheik Mohammad and the four others were set to appear before a civilian court in NYC, but after much opposition from political adversaries and a mandate from Congress, Obama’s administration agreed that it would be in the best interest of the country to try them before a military court.
Even though the trials must take place, the problem of where and under what jurisdiction they will fall under arises.
Some powerful people are vehemently opposed to the administration’s decision. Anthony D. Romero, the executive director of American Civil Liberties Union, is even questioning the legality of these trials because of the lack of precedent governing them.
“They are sure to be subject to continuous legal challenges and delays, and their outcomes will not be seen as legitimate. That is not justice” said Romero.
The problem with the international enemy combatants being tried in military courts of the United States is that our constitution does not defend, protect nor address prosecution of foreigners. Amendment XIV, section I of the constitution (All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside) articulates the assertion that in order to be subjected to American jurisdiction presupposes that the defendant is a citizen of the United States and therefore is bound to its constitution. This is the ambiguity that surrounds the debate; whether or not terrorists have a place in American courts.
Despite the constitutional problems and Romero’s claims, Eric Holder, the Attorney General, says that “It [the trial] must not be delayed any longer” and that Mohammad and his men are “too dangerous to have a fair trial.”
The five terrorists have been in legal limbo for over a decade now and families of the victims due to the attacks finally have a feeling that justice will be served, even if it is in a private military tribunal.
“We’re delighted. Demonic human beings, they’ve already said they would kill us if they could, if they got the chance they would do it again” said Alexander Santora, father of a deceased firefighter who was a victim of the attacks.
Even though the opposition to the new stance has much validity, there are still extenuating circumstances that are guiding this trial. Lawyers Lee Casey and David Rivkin of the law firm Baker Hosteltler make the case that if the terrorists were to be tried in civilian courts their outcomes and procedures would not be better served and would be much more ambiguous.
“Certainly, this conflict is not a traditional one, but it is one nonetheless. Using civilian courts would have only made the legal landscape more ambiguous—is it law enforcement or war we are engaged in?” said Casey and Rivkin.
As is usually the case, Republicans and Democrats divided themselves over the issue. The Senate Judiciary Committee Chair, Patrick Leahy of Vermont (D), thinks that the American civilian court system is the most appropriate venue to try the terrorists, while former Mayor Rudy Giuliani (R), who was Mayor of New York City during and after the suicide bombing, opposed holding their trial in civilian courts.
“I believe that our justice system, which is the envy of the world, is more capable of trying high-profile terrorism and national security cases” said Leahy.
While Republicans and Democrats are nearly ripping each other’s faces off over this issue, some, like Attorney General Eric Holder, are looking to benefit politically from such a high-profile issue.
As a somewhat notable aside, Obama and his administration, Eric Holder, and Michael Bloomberg, the current Mayor of New York City, all changed their stance about whether or not Mohammad and his men should be tried in a civilian court; an alteration in political doctrine that certainly raises eyebrows.
The idea of ambiguity seems to be somewhat of a motif in this story because of the indecision surrounding the trial. Think about it. Mohammad and his followers were victims of more than a decade cycle of legal ambiguity and have no hope of getting a “speedy and public trial,” the American judicial system is in a constant state of constitutional dilemma over who is the rightful heir to the terrorist’s jurisdictional authority, and the Obama Administration is seen as flip- flopping its stance all over the West Wing in fish-out-of water mode.
The Military Commissions Act of 2009 is going to be the governing piece of legislation for the tribunal at Guantanamo Bay. Under the act, the Department of Defense acts as the judge, jury, prosecution, and maybe even the defense in the trial.
As the attorney’s for the National Association of Criminal Defense have said in the past, “the military commission system is not about seeking justice as much as it is about obtaining convictions.”