9/11 Trial: Don't Expect Another Nuremberg

Attorney Andrew Cohen analyzes legal issues for CBS News and

The Pentagon announced Monday - 2,345 days after September 11, 2001 -that it would finally seek to bring to military trial six men accused of aiding the terror attacks that day. Considering that one of the six men is Khalid Sheikh Mohammed, long acknowledged as the 9/11 operational chief, the announcement surely is big news and perhaps even a watershed in the long and frustrating struggle to fit the new rules of warfare into the old paradigms of military justice.

It's a big deal, however, only if we have just witnessed a shift in Pentagon priorities when it comes to the rules by which the men will be tried. Military officials said all the right things Monday - that there would be very little classified evidence introduced against the men and that they would be afforded most of the same rights as accused U.S. soldiers - but it is unclear as I write this whether in fact the procedures ballyhooed now are materially different from the procedures that have been challenged before and that remain legally dubious even today.

If the Pentagon finally is serious about prosecuting the men more fairly - if the ticking clock on the Bush Administration's days in office has generated the sort of reasonable breakthrough that dozens of judges and hundreds of lawyers could not - 2008 really could be the year we finally see progress in the form of legal process. If we've just heard more empty rhetoric from the government and the rules really haven't changed then we are doomed to endure another year or two of legal limbo before we see our first military trial.

It won't be a grand spectacle like the world saw in Nuremberg. The war that preceded that trial was finished. Our current war on terror rumbles on, perhaps endlessly, requiring military officials to be mindful of security and operational details that would emerge during the presentation of evidence. The government will now allow the world's tribunes to converge upon Guantanamo Bay, Cuba to chronicle the proceedings.

Moreover, it's hard to fathom how either our government or the rest of us will learn something about the 9/11 plot that we can believe, and don't already know.

The odds of Mohammed suddenly snapping his fingers during the trial and then sharing with us some relevant detail is about as likely as the trial is to be televised with Nancy Grace as the courtroom announcer. This is about steak, not sizzle; about putting these guys away, in this world or the next, once and for all.

Let's get real and stop talking about legal theory. The Mohammed Six are dead men walking and have been so ever since they were captured. They will be judged by military officers. The trials, if they ever take place, are likely to be far less controversial than advertised. And the episode will end up the way all capital cases end up in this country: with a final pronouncement of some sort by the United States Supreme Court.

Given the amount of poor reporting and faulty analysis on these topics Monday you would have thought that Hammurabi himself came back from the dead to deliver the news in Akkadian.

All everyone wanted to talk about Monday was "waterboarding" and how torture allegations would play into the trial. Apparently, "terror trials" and "waterboarding" go hand-in-hand now like "O.J. Simpson" and "preliminary hearing" - you hear the first and you start asking about the second. But it ain't necessarily so. I don't think this trial is going to be the Torture Referenda that detainee attorneys want it to be. For example, prosecutors could go a long way toward avoiding the topic altogether if they simply present their case against the men without relying upon anything the men said following their capture.

Let's play that out with Mohammed. Obviously, the government knew about his role in the 9/11 plot before he was rousted out of his bed, photographed and sent off to be "interrogated" lord knows where. The evidence and information that led federal authorities to tag him with the 9/11 Leader label and then hunt him down in a safe house in Pakistan can be used against him without triggering a defense motion that it came from torturing the man. You can't use torture as a defense to a confession if the government doesn't use the confession.

But that's not going to stop the folks from the Center for Constitutional Rights - an organization that has done amazingly important work on behalf of the detainees since 9/11 - from arguing that the government's allegations against their client, Mohammed al-Qahtani, are "inherently tainted by the stench of torture." I just don't see a jury of Donald Rumsfeld's peers buying that argument. And I don't buy the Supreme Court Justices doing so, either.

The defense will have a closer call if the government tries to use information gleaned from the men during newly-revealed "soft" interrogation tactics. And if someone hasn't copyrighted it yet I'll be the first to lay claim: the phrase "The Starbucks Defense" is going to be applied in this case if the government tries to sell the idea that its new anti-waterboarding tactics - would you like a latte, Mohammed? - don't constitute coercion. The more prosecutors can stay away from using anything the men have said the better and strongly the government's case will be.

Now let's look at the capital punishment component to Monday's news. Who in the world is surprised that our government would choose to push ahead for the death penalty in these cases? If not now, when? Yes, I understand that many countries of the world do not agree with America's willingness to continue to employ the death penalty. But if and when Mohammed is convicted of this crime, which leader of which country is going to stand up in this case and say that he deserves mercy?

Sometimes, the enormity of the crime overwhelms the life history of its alleged perpetrators. It happened with Timothy McVeigh and the Oklahoma City bombing trial. And it's going to happen again if - not when - Mohammed and Company finally get their day in court.