Tuesday, November 17, 2009

Column:

The decision has been made to seek the death penalty for Khalid Sheik Mohamed and his co-conspirators for the attacks known simply as 9-11.

The decision has also been made, by the Army, to seek the death penalty for Major Nidal Malik Hassan, aka the Fort Hood Terrorist.

Former Mayor Rudy Giuliani, Mayor Mike Bloomberg. Attorney General Eric Holder and most of the media have weighed in with their opinions, advice and counsel. Most of the always heated discussions swirling around the 9-11 trial center on the decision to try the terrorists in the New York area, in the shadow of the downed World Trade Centers.

Those passionate discussions are certainly important, but there are other issues that concern me more than the venue of the trial.

I am concerned that these terrorists be afforded - even awarded, a civilian trial rather than a military tribunal. Civilian trials give defendants more power on issues of evidence, procedure and the all-important question of "beyond reasonable doubt" than do military trials. The threshold for conviction is much higher in a civilian trial than in a military trial. No matter how confident the Attorney General is about the case, every civilian trial is a crap shoot and this is one case neither he, nor we, can afford to lose.

And I am concerned about press coverage during the proceedings. The eyes of the world will be on this trial no matter where is it conducted, no matter if it is civilian or military, but the press will have a much more difficult time turning the trial into a media event if it is held in a military court than a civilian court.

In a military trial the defense does not subpoena witnesses, they must ask the prosecution to do so as a favor. In a military trial judge, jury and even the defense lawyers are part of the officer corps - they are people who are cogently aware of the significance of the trial and of the inherent dangers in confronting terror and the nuances of controlling terrorists and terrorist rhetoric. That, too, concerns me about a civilian trial.

But of all my concerns, what concerns me more than the venue, the latitude, the coverage and the guilt is the punishment.

These defendants want to die.

Last year Khalid Sheik Mohammed asked to stay his trial so that he could plead guilty and be executed. He wants to leave this world as a martyr, a shahid. And I have little doubt that the Fort Hood terrorist assumed he would be killed as he perpetrated his heinous acts of mass murder.

By seeking the death penalty we, the intended victims of their terror, are granting these terrorists their ultimate prize. We, the infidels, the non-believers, the targets and objects of their holy crusades, are granting them the ever after. We are elevating these men to great heights in their own eyes and in the eyes of their supporters around the world. We are accomplishing for them what they did not accomplish themselves.

Acts of terror warrant the most severe forms of punishment. But what happens when the punishment is the fulfillment of the original mission? Those terrorists who by surviving, failed in their mission, will be redeemed by their execution.

Of less concern to me but of import to the world of the terrorist is the stupendous cost of civilian trials. The al Qaeda web sites have underscored this time and again.

Try these terrorists. Convict them. Punish them. But do not try them in a civilian court. And do not reward them with death. And remember, a public trial provides a platform. And during the trial the methods we use to capture, monitor and bring terrorists to justice will be visible to all. We will be handing over our secrets to terrorist organizers who will monitor, learn and adjust their own training techniques. We will do it all in the name of truth, justice and the American way.

This time, in this case, that is not the right way to go.

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