New York’s 9/11 Trial Justice

A Trial in New York is the Right Move, but the Death Penalty Would Be a Mistake

Putting the 9/11 suspects on trial in New York is the right move, but seeking the death penalty would be a strategic error, writes Ken Gude.

U.S. Attorney General Eric Holder announces the administration's decision to prosecute Khalid Sheik Mohammed and four other 9/11 conspirators in a New York courtroom. (AP/Alex Brandon)
U.S. Attorney General Eric Holder announces the administration's decision to prosecute Khalid Sheik Mohammed and four other 9/11 conspirators in a New York courtroom. (AP/Alex Brandon)

The decision today by U.S. Attorney General Eric Holder to prosecute Khalid Sheik Mohammed and four other 9/11 conspirators in a U.S. court is a victory for the rule of law and the American system of justice.

Choosing the most legitimate and fair forum available will return the focus onto Mohammed and his grievous crimes, and not on U.S. government misconduct. While the outcome can never be ordained in any legitimate judicial system, a successful conviction of Mohammed and his co-conspirators will finally bring justice to the families of the victims and a clear demonstration that America has overcome the deadly attacks of September 11.

Mohammed and his co-conspirators will be charged in a federal criminal court in the southern district of New York and held in the Metropolitan Correctional Center in Manhattan. The Obama administration must wait at least 45 days to bring them into the United States, due to restrictions imposed by Congress on transferring Guantanamo detainees. Once that period is concluded, the trial process will begin but the pretrial phase is likely to last many months.

The most significant issue during this portion of the proceedings will be whether the defendants are allowed to represent themselves during the trial. They have so far refused to cooperate with their military defense lawyers at Guantanamo and it is likely that their objections to being represented by any attorney will continue. The final decision will reside with the judge in the case and will have significant bearing on how the trial moves forward because it is very clear that Mohammed and the others intend to plead guilty.

The 9/11 conspirators have taken every opportunity afforded them to loudly proclaim their responsibility for the attacks and that Al Qaeda planned and orchestrated the entire plot. It is almost inconceivable now that Mohammed would swear before the court and the world that he is not guilty—doing so would undermine Al Qaeda. The main issue will be whether the court accepts the guilty plea, and it may not.

Should it go to actual trial, enough evidence exists to obtain a conviction without using information tainted in any way by U.S. government misconduct. There are concerns that a trial would give Mohammed a platform to rail against the United States and rally his brothers in arms against America. But Mohammed would only expose himself as among the most notorious and unrepentant mass murderers the world has ever known—and that would unquestionably be a victory for the United States.

I worry, however, that the Obama administration may unintentionally hand Al Qaeda a propaganda tool should it—as Holder strongly suggested—seek the death penalty for these men. It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom. Al Qaeda will exploit an execution by the U.S. government as a significant propaganda victory, no matter how fair and legitimate the trial. Life imprisonment, however, would cause Mohammed and his co-conspirators to be forgotten, like Ramzi Yousef and other terrorists currently wasting away in obscurity in U.S. jails, a far harsher punishment for these terrorists than execution.

Prosecuting Khalid Sheik Mohammed in a federal courtroom a mere stone’s throw from Ground Zero demonstrates a belief in the strength of the U.S. system of government. There would be no better evidence that although he was able to orchestrate an attack on the United States that claimed the lives of 3,000 people, he utterly failed to destroy America and all that it stands for.

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Ken Gude

Senior Fellow