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Harris Sherline: The Right to a Fair Trial

Trying the 9/11 terrorists in New York is as much about politics as justice

Is it a good idea to try Khalid Sheik Mohammed and four other terrorists in New York City for the Sept. 11, 2001, terrorist attacks on the World Trade Center? Attorney General Eric Holder’s Nov. 13 announcement to do just that immediately stirred up strong feelings, pro and con, about the wisdom of the Obama administration’s decision.

Harris Sherline
Harris Sherline

Wikipedia notes, “The right to a fair trial is explicitly proclaimed in Article Ten of the Universal Declaration of Human Rights, the Sixth Amendment to the U.S. Constitution and Article Six of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world.”

A fair trial requires a competent, neutral and detached judge and jury, witnesses who are free of influence and adequate legal counsel.

That said, what a “fair trial” in New York City for Mohammed and the other terrorists is likely to mean has very different connotations for many Americans.

One side tends to see it as an opportunity to showcase America’s justice system to the rest of the world in general and Muslims in particular, in the belief that it will demonstrate the fairness and equity that is accorded even this nation’s worst enemies. They believe New York City is well-equipped to handle the risks of such a trial in a U.S. federal court, both judicial and security concerns, and that the case is a slam-dunk for conviction that will finally lead to the execution of those responsible for the murder of nearly 3,000 people in the heart of Manhattan on 9/11.

“It treats these perpetrators as the criminals they are, depriving them of the warrior status which they crave and the military commissions facilitated,” said Elisa Massimino of Human Rights First.

Another important reason for conducting this trial in New York is to rectify the taint the current administration believes was caused by the way in which Mohammed was captured and subsequently waterboarded during his interrogation by the Bush administration.

Jeffrey Toobin, CNN’s legal analyst, observed that the trial will perhaps be the biggest “challenge in the history of federal law enforcement to produce a fair trial.” Tobin further noted that the defense will argue that the extensive waterboarding of Mohammed (183 times) is “misconduct that means the whole case should be thrown out.” However, Holder points out that there is sufficient evidence to convict that has not yet been released and that the government will seek the death penalty.

The decision to move the trial to New York City was immediately met with an outcry of opposition.

In a Nov. 13 Politico article (“New York Terrorist Trial Raises Stakes”), Josh Gerstein reported, “‘Families are furious about this,’ said Debra Burlingame, whose brother, Chic Burlingame, was the American Airlines pilot of one of the planes hijacked on Sept. 11. She said more than 300 family members have implored the administration not to move the trial to New York.”

Gerstein also points out that there is a risk a judge could dismiss all charges because of “outrageous government conduct.”

Sen. Lindsay Graham, R-S.C., has attempted to pass legislation that would force the administration to keep the 9/11 planners before military courts, expressing concern that trying Mohammed in civilian court would be a “huge mistake” that also would make it more difficult to try lower-level al-Qaeda members in military tribunals.

There are also a host of security concerns associated with conducting this trial in lower Manhattan, such as protecting the judge and members of the jury from threats to themselves and their families, risk of harm to New Yorkers in the event of an attack on the streets when prisoners are moved. Mayor Michael Bloomberg is confident the city is equal to the task, noting that the New York City Police Department is accustomed to dealing with similar problems on a regular basis.

However, former Mayor Rudy Giuliani sees it quite differently and has expressed both outrage and concern about the safety and security problems involved, in addition to many of the legal issues that are raised as a result of transferring this case to civilian courts from military ones.

The core issue in all of this is the Obama administration’s position that terrorism should be treated as a criminal matter and dealt with by the criminal justice system as opposed to fighting a war (on terror), notwithstanding the fact that Osama bin Laden (and al-Qaeda) openly declared war against the United States and the West in a news conference on May 26, 1998.

My conclusion is that the decision of the Obama administration to try Mohammed and the other terrorists in New York is as much about politics as justice. I believe they also see it as another opportunity to fault the Bush administration for a situation that was not handled properly.

— Harris R. Sherline is a retired CPA and former chairman and CEO of Santa Ynez Valley Hospital who has lived in Santa Barbara County for more than 30 years. He stays active writing opinion columns and his blog, Opinionfest.com.

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