June 18, 2018
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Return to Justice

Attorney General Eric Holder made a difficult but correct decision to try the professed 9-11 kingpin and four alleged henchmen in a civilian court in New York.

Of course he aroused fear and opposition, some based on misunderstanding of American constitutional law.

Why give foreign detainees the same rights to a fair trial that are enjoyed by U.S. citizens? The Constitution, with a few exceptions, does not distinguish between aliens and citizens. And ever since the Supreme Court’s 1896 decision in Wong Wing v. United States, a case involving imprisoned Chinese immigrants, an alien subject to criminal proceedings is entitled to the same constitutional protections available to citizens.

Another objection is that an open New York trial will give away national security secrets and help the terrorist organization al-Qaida. The court can protect secrets by suppressing sensitive testimony and closing a session if necessary.

What if Khalid Shaikh Mohammed, who has claimed credit as the mastermind of the 2001 attack, tries to make an inflammatory speech? Let him try. It won’t be the first time that a judge has had to silence a noisy defendant.

Won’t defense lawyers object that the chief defendant’s admissions were “tainted” and inadmissible because he was “tortured,” including repeatedly being waterboarded? Prosecutors have plenty of his voluntary testimony that came long after the government stopped waterboarding him in 2003.

What if a New York jury balks at capital punishment? Lifetime imprisonment could be considered adequate punishment — and maybe even preferable — for an obsessed terrorist determined to die a martyr.

Finally, what if the jury should unexpectedly acquit him? He would not walk away free. Administration officials have said that they could continue to detain anyone deemed to be a “combatant” under the 2001 congressional authorization to use military force to combat terrorism.

The big plus to all this is that it shows the detainees, the rest of the world and ourselves that the United States is a nation of laws and knows how to practice justice toward even its worst enemies. And, in doing so, it has left behind the unconstitutional practices of the Bush administration including its jury-rigged courts called military tribunals or commissions. They permitted loose practices like the admission of hearsay evidence, were repeatedly overruled by the Supreme Court, and in seven years never completed a single trial.

More remains to be done by the Obama administration to return to the traditional American system of justice. Attorney General Holder has decided that five other detainees, accused of the 2000 bombing of the U.S. destroyer Cole in Yemen, will be tried before a reconstructed military commission in Guantanamo Bay, Cuba. And the backstop decision to hold the New York defendants if they should be acquitted amounts to one more holdover from the Bush administration, as is the continuation of the detention center at Guantanamo, which the president pledged to close. These contradictions can and must be fixed.

The American system of justice will prevail, and we all should be proud of it.

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