Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Just one day after the Defense Department circulated a draft list of offenses suitable for prosecution by military tribunal, U.S. and Pakistani forces captured a prime candidate for just such a case. In virtually every way, suspected al Qaeda leader Khalid Shaikh Mohammed is a made-to-order fit to be the first American tribunal defendant since World War II.
Sure, Mohammed could simply be tried in federal court like his alleged al Qaeda colleagues Zacarias Moussaoui and Richard Reid. There would be some value in giving Americans (and the rest of the world, for that matter) an opportunity to judge for themselves what his role may have been in the Sept. 11, 2001 attacks on America. But the value of proving that our justice system can work even in extreme cases unfortunately doesn't outweigh the problems such a trial would generate.
We didn't know that before. But the Moussaoui and Reid cases, and other terror-related cases, have taught government officials the hard lesson that terror defendants and the regular criminal process mix like oil and water. The past 16 months also have clued the executive branch into the notion that there aren't a lot of federal judges who are willing these days to second-guess the White House or Justice Department when it comes to the legal war on terror. So why not try something different? Take the highest-ranking suspected al Qaeda official yet arrested and make him the first person tried outside of the regular criminal justice system: different strokes for a very different kind of folk.
As an initial legal matter, Mohammed meets all of the criteria for prosecution by tribunal. Although he was educated in North Carolina and speaks fluent English, he is not a U.S. citizen. This means he is not entitled even to those minimal constitutional rights that have been afforded since Sept. 11, 2001 to citizen "combatants" Jose Padilla and Yaser Esam Hamdi, who have been kept in military confinement without charges or the ability to see their own attorneys. Captured abroad, Mohammed is essentially a hybrid between a prisoner of war, a dangerous criminal and an enormously important intelligence asset.
The Kuwaiti-born's legal status means he's already within the definition of those individuals who could be tried in secret before American military officials. And he also fits the bill because he is accused in various ways of having "engaged in, aided or abetted, or conspired to commit acts of international terrorism, or acts in preparation therefore that have caused, threatened to cause or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy or economy..."
That language comes from President Bush's Nov. 14, 2001 Executive Order, the command authorizing the Defense Department to gear up its tribunal process which had been dormant domestically since a German espionage case in the 1940s. The president's order begat the draft tribunal rules announced Friday. These rules identify 24 separate crimes-- many of which fit nicely with what Mohammed is accused of-- and would likely be finalized around the same time that intelligence officials are through grilling Mohammed for information on some isolated military base somewhere. In other words, about six months from now, when Mohammed's knowledge has been tapped, the tribunal protocol will be up and running.
So the government can try Mohammed via tribunal instead of bringing him to justice in the federal court system. But should it? Absolutely. In fact, the political and practical reasons for taking him down that route are even more clear than are the legal reasons. From the African Embassy bombing trials, the first World Trade Center trial and even the John Walker Lindh case, our government has learned that a complicated public terrorism case can be lengthy, enormously expensive and somewhat unwieldy. Imagine, then, what an al Qaeda "mastermind" case would look like in New York or Virginia? It would dwarf every other case we've yet seen.
From the Richard Reid case, we've learned how al Qaeda defendants can use the public forum they receive in court to blast America and exhort their colleagues to continue the fight. And, perhaps most importantly, from the Moussaoui case we've learned that terror suspects can absolutely gum up the legal works when under constitutional fair-trial principles they ask for pre-trial access to other terror suspects.
Remember, the Moussaoui case has been stopped dead in its tracks by his request to have his attorneys communicate with Ramzi Bin-AlShibh, another al Qaeda "executive." Normally, criminal defendants have a broad right to conduct this sort of discovery in order to help defend themselves. But U.S. officials are so opposed to interrupting their interrogation of Bin-AlShibh-- and allowing him a way to communicate with Moussaoui-- that they are seriously considering dropping the whole capital case against Moussaoui and diverting him - you guessed it - to a military tribunal.
So why even bother to start Mohammed down a road that has turned into a dead-end for Moussaoui's prosecutors? Why give another suspected al Qaeda hack another avenue to shout down a judge? Why spend all that limited time and money and energy trying to fit a round peg into a square hole? A tribunal would avoid the Moussaoui problem, muzzle Mohammed from the Reid scenario, save the government's intelligence efforts from interruption and conserve resources. It also would likely give Mohammed a lot more due process than he allegedly gave Daniel Pearl before he slit his throat and cut off his head. The man and the moment have met.
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