“Man’s capacity for justice makes democracy possible”

Reinhold Niebuhr (1944)

Sometimes in life there are no good choices.   Attorney General Eric Holder decision to to try Khalid Sheik Mohammed and four associates in connection with the 9/11 attacks is an vivid example of choosing least damaging of a number of no-win options, all of which have vocal critics. 

The continued indefinite detention of detainees, taking them before secretive military tribunals, shipping them detainees off to third party nations or even releasing people who could do harm to the US or its citizens in the future are arguably less attractive options for a country which prides itself on being nation of laws.

Despite the alarmist rhetoric coming from the right, the concept of detaining either American citizens or foreigners on an indefinite basis and/or without due process is an anathema to the fundamental principals on which this nation was founded.  Not only does it raise questions as to our country’s commitment to its professed beliefs but provides justification for the similar detentions of American citizens by other nations.

While the attacks on the World Trade Center, Pentagon and aborted attempts to hit either the White House or Capitol Building were clearly acts of war on the United States, they are also crimes under both state and federal law.  The fact that they were committed by non-US citizens should not obviate the employment of our justice system. 

At the same time, Attorney General Holder’s decision and the ill-considered remarks by any number of Administration and Justice Department officials as well as members of Congress have opened a Pandora’s Box    

1.       The presumption on innocence, a basic tenant of American jurisprudence.  As a result of the publicity, exacerbated by the inappropriate statements from President Obama, Congressman Murphy and other public officials proclaiming the guilt of the accused in advance, can the defense legitimately argue that the ability to seat an truly impartial jury, particularly in New York City.

 2.       Defendants are constitutionally guaranteed to be tried by a jury of their peers.  While the ethnic and racial demographic of a jury may not always match that of a defendant, the courts have held that the systematic exclusion of such “peers” based solely on their sex, race, ethnicity or religion is unconstitutional.  What will be an acceptable percentage of Muslims in the jury pool and on the jury? 

3.       One of the most hotly argued issues is that a trial will provide KSM and his cohorts with a platform to spew their hatred of America and their grievances against America, its foreign policies and even free and secular society.  How will the US and world press report such rantings?

4.       As it requires a unanimous verdict, it is possible that there could be one, or more, holdout resulting in a hung jury.  The public outrage would be deafening.  How quickly would a retrial be convened?

5.       An acquittal is almost inconceivable.  However, if such a verdict was rendered what would be the justification for the continuing detention of defendant(s) … other than for a trial in a state court under an exception to the double jeopardy clause?

6.  A jury could find KSM and his associates guilty but fail to agree on the death penalty, opting for life without parole.  Frankly, a life sentence in Colorado’s Supermax might be more debilitating to them delaying their anticipated date with seventy-five virgins.  Would the public accept this fate?  Interestingly, Richard Reid, John Walker Lindh, Ted Kaczynski, Ramiz Yousef, Zacarias Moussaoui, Terry Nichols other inmates of that federal facility are rarely if ever heard form again.

7.       Concerns also persist that the courtroom and detention facility used during such trials would become high-profile terrorist targets.  It is further possible that Muslim extremists could view media coverage, which could include political cartoons depicting their prophet Mohammed, as blasphemy making them additional targets.  Are we as a nation prepared to sacrifice our way of life because we fear the reactions of others?

In his first Inaugural Address on March 4, 1933, referring to the current Great  Depression, Franklin Roosevelt said, “The only thing we have to fear is fear itself”. 

Our politicians should keep their opinions to themselves!  The nation is correct in choosing its legal system.

Today, in the wake of 9/11 and Attorney General Holder’s decision, there is again fear that our society will fall victim to events and individuals.  Faith in the strength of our system of jurisprudence is suspect and must be restored!