What Could Go Wrong at KSM Trial, and How to Avoid It

We won't know until it's over whether the White House was right or wrong to gamble on bringing Al Qaeda leader Khalid Sheikh Mohammed to New York for a federal civilian capital trial. Over the past few days, since last Friday's announcement, I've outlined in great detail why a Mohammed trial is on the whole something to welcome and not scorn. But what if everything does go wrong? What if the many naysayers are right? Here are a few ways in which the biggest criminal trial in American history could turn into a legal and/or political mess. Here also is how the feds could avoid such problems.

Monkey Business, Part 1. In 2006, federal prosecutors had to admit during the middle of the Zacarias Moussaoui 9/11 conspiracy sentencing trial that one of their witnesses (the now-forgotten Carla Martin) had violated trial rules by coaching other aviation witnesses set to testify against Moussaoui. The Mohammed trial will draw 100 times the attention the Moussaoui trial drew. The Justice Department simply cannot afford to have one of its lawyers or witnesses go, um, rogue. Its leaders must impress upon its worker-bees that not just history but God will be judging them for the ethical choices they make in connection with the case. No cheating. No hiding the ball.

Monkey Business, Part 2. About a year after Moussaoui was sentenced to life in prison, federal prosecutors had to tell his judge that they had misled her about the existence of certain interrogation videos that might have been relevant to his case. Turns out the Central Intelligence Agency hadn't been exactly candid with its Justice Department colleagues about the tapes—an iteration of the old intelligence versus law enforcement feud. The feds cannot afford such purposely lack of communication now. Federal prosecutors can't be blind-sided by their own colleagues. The President must demand that all executive branch agencies work together. The left hand must know what the right hand has been doing.

Ito-fication. Poor Lance Ito. No matter what else he has done or will ever do, the O.J. Simpson murder trial judge's name will always come up when commentators talk about cases that are allowed to spin out of control. This cannot happen here. No matter how the lawyers act, and no matter what inclinations Mohammed may have, the trial will be controlled by a federal judge. The nation cannot afford to have this jurist be anything but tough as nails on everyone, including prosecutors. Fortunately, there are plenty of good candidates in the Southern District of New York. And whomever is picked ought to pick up the telephone and call the Anti-Ito, Richard Matsch, the federal judge who presided over both Oklahoma City bombing trials in Denver in 1997-98.

Water-boarding. It happened. There's no denying it. And if the trial becomes a referendum on the Bush Administration's approach to terror suspects Mohammed and his confederates will have a political victory. Hopefully, the feds are smart enough to realize that they'll have a better chance for a clean trial if they don't even try to introduce as evidence the incriminating statements Mohammed made as a result of the "enhanced interrogation" (or, if you'd like, torture) that was performed upon him. Those statements were coerced (purposely so) and thus inadmissible. I don't think there is a trial judge in the country who would allow them into a capital trial and any judge who did would be reversed upon appeal.

To avoid a long battle over this technical legal concept, the feds should and hopefully will cobble together their case from Mohammed evidence obtained before he was captured, from his outlandish comments in military court, and from third parties and other independent evidence, all of which would give the trial judge an excuse not to talk about water-boarding. Let me put it this way: From what we know publicly, even without any of Mohammed's so-called confessions under duress, there is more evidence against Mohammed than there was against Jose Padilla and it took a jury in Miami a few hours to convict Padilla. — —

Declassification. One of the most persistently-expressed fears about a civilian Mohammed trial is that it will result in the release to the world of previously-undisclosed secrets about the way America has fought the war on terrorism. I could write a whole other column about the protections in place, both legal and practical, that preclude the unintentional (or intentional) disclosure of classified information. But I suppose it's possible that something could leak out. And even apart from any declassification scandal it's certain that Al Qaeda operatives following the trial will learn something they didn't before know. Can prosecutors limit this collateral damage? That's just one of the many challenges they'll face.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.