The first great terrorist trial of the 21st century will take place in the shadow of the World Trade Center. The Obama administration has announced that Khalid Sheikh Mohammed, the self-confessed mastermind of 9/11, will be subjected to an ordinary criminal trial in the federal court of New York. He will almost certainly be charged with the mass murder of nearly 3,000 individuals, and could possibly face trial for the death of Wall Street Journal reporter Daniel Pearl, whom he claims to have beheaded in Pakistan.
The form of the indictment isn't yet clear – whether it will be a conspiracy or RICO charge, or whether it will include special terrorist counts as well. Whatever the form, the substance of the charge will be that Mr. Mohammed and his co-defendants murdered more people than anyone who has ever faced justice in a U.S. court.
Despite the fact that Mr. Mohammed has confessed to virtually everything, his trial will face daunting challenges, unless he decides to plead guilty, as he tried to do last year when he sent a note to a military judge at Guantanamo. If he changes his mind and decides to fight the charges, he will have powerful legal weapons at his disposal.
Foremost is the reality that he was subjected to torture, both physical and psychological. He was waterboarded, which clearly amounts to torture under the law. It was also reported that, when he was arrested, his young children were apprehended. If this is true, his lawyers will surely insist that the circumstances surrounding the detention of his children, particularly whether they were used as bargaining chips, must be fully developed and exposed.
Despite the assertions of torture, prosecutors will argue he eventually made an independent decision to confess. They've already laid the foundation for this argument by establishing a so-called “clean team” of interrogators, whose job it was to develop evidence that did not rely on his tainted confessions. Whether this tactic will work remains to be seen.
The Bush administration had defended the use of waterboarding as a legitimate, if extreme, technique for eliciting valuable intelligence information. It is doubtful the Obama administration will try to defend that tactic, or argue that evidence adduced as a result of waterboarding should be admissible in a criminal case. The bottom line is that current prosecutors will probably have to prove the case against Mr. Mohammed without relying on any statements that resulted from torture, or any evidence that is the fruit of unconstitutional interrogations.
Another daunting obstacle that will be faced by prosecutors will likely be the common defence tactic called “graymail.” Under this variation on blackmail, defence attorneys demand that the government turn over sensitive and classified intelligence information deemed necessary to the defence. If they refuse to do so, the defence moves for dismissal of the indictment. Federal judges are sensitive to the potential abuse of this tactic and will insist that the material that is sought must be relevant to the defence. But if it is relevant, the tactic can be extremely effective.
The defence may also move for a change of venue, insisting that no one accused of blowing up the World Trade Center can receive a fair trial in its shadow. I recall arguing a case in the federal courthouse shortly after the terrible events of 9/11 and still being able to smell the smouldering remnants of that catastrophic event that no New Yorker will ever forget. If a change of venue is not granted, it will be very difficult to find enough jurors with open minds to assure that what Barack Obama promised – “the most exacting demands of justice” – can actually be delivered.
Finally, there is the issue of the death penalty. Many New Yorkers oppose the death penalty, though even most of those would agree that if there were ever a case in which it was warranted, it would be for the deliberate murder of nearly 3,000 people. If the government seeks the death penalty, it would be entitled to what is called a “death-qualified jury.” Such a jury consists only of citizens who would be willing to impose the death penalty. This requirement would make it even more difficult to sit a jury within a reasonable period of time.
In the end, I believe the Obama administration has done the right thing by placing our trust in the American criminal justice system – only civilian courts can assure “the most exacting demands of justice.”
In this case, the United States will be on trial as surely as Mr. Mohammed. Much is at stake, but the Obama administration's decision to trust civilian courts is a good first step.
Alex Dershowitz is Felix Frankfurter professor of law at the Harvard Law School.
