The KSM Trial Will Be Fair Enough

And military detention is legit, too.

Khalid Sheikh Mohammed

The Obama administration’s decision to prosecute Khalid Sheikh Mohammed in a civilian court has brought charges from across the political spectrum that his trial will be unfair and thus illegitimate. Critics have articulated three separate concerns. With care, the government can overcome them all. In three acts:

Impartial Jury

Some people worry that Mohammed will not get the “impartial jury” that the Sixth Amendment guarantees him. The Sixth Amendment does not require a jury ignorant of 9/11. It requires only that Mohammed’s jurors not prejudge his guilt and that they be guided only by the law set forth by the judge and the evidence presented in court.

The president and attorney general did not help ensure an impartial jury when they commented on Mohammed’s trial two weeks ago. Asked whether he understood why Americans might be offended by Mohammed’s trial, President Obama responded, “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.” (Our lawyer-president quickly backtracked, saying, “I’m not prejudging it, I’m not going to be in that courtroom. That’s the job of the prosecutors, the judge and the jury.”) The attorney general said he would not have brought the prosecution unless he was “confident that our outcome would be a successful one” and later added that “failure is not an option.”

These statements by the nation’s two top legal officers are unfortunate. The rules of the New York federal court where Mohammed will be tried presume that a “government agent” has likely interfered with a fair trial when he publicly offers “any opinion as to the accused’s guilt or innocence or as to the merits of the case.”

Mohammed’s lawyers will no doubt reference all of this in a motion to dismiss on the basis of prejudicial pretrial publicity. But the statements’ actual impact is marginal at most, coming against the background of 9/11 itself and Mohammed’s own public acknowledgment of his role in the attacks.

For better or worse, the usual remedy for statements of this sort is not to dismiss the case but rather to redouble efforts to ensure that jurors don’t consider the statements. (In a more extreme case, sanctions can also be brought against government officials who utter prejudicial statements, but that will not happen here.) The statements are nonetheless harmful because they diminish the appearance of fairness that is a major advantage of choosing a civilian trial over a military commission.

But they’re not a deal breaker. As in the criminal prosecution of Zacarias Moussaoui (who was prosecuted in federal court for the same conspiracy Mohammed will likely be charged with), the impartiality of hundreds of potential jurors will probably be assessed with lengthy questionnaires, approved in advance by the judge and the lawyers for both sides. With patience and skill during jury selection, cautionary jury instructions, and careful jury supervision during trial, a judge should be able to find a dozen people and other alternates who can credibly stick to the facts and law presented at trial.

Detention After Trial

Embracing a position of the Bush administration, Holder recently claimed the power to detain Mohammed as an enemy combatant even if he is acquitted. The Department of Defense’s general counsel, Jeh Johnson, made the same claim last summer. This “heads I win, tails you lose” strategy has led critics on the left and the right (Glenn Greenwald and Charles Krauthammer) to charge that Mohammed’s prosecution will be a “show trial.” It certainly seems contrary to the purposes of a trial to announce that the defendant will not be set free no matter what. But as both Bush and Obama lawyers have now concluded, military detention of a wartime enemy combatant, following criminal acquittal or the termination of a criminal sentence, is lawful.

One possible constitutional objection is the double jeopardy clause, which states: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” It might seem that Mohammed would twice be put in jeopardy if he were detained as an enemy combatant after being acquitted at trial. But the Supreme Court has determined that the double jeopardy clause applies only if the second basis for detention is itself punishment. It does not apply, for example, to civil sanctions (including civil detention) that follow criminal punishment or acquittal, even if the civil sanction is predicated on the same facts that were in issue at trial.

The Nuremberg Tribunal noted that military detention is “neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war.” The purpose of military detention is not retribution or deterrence, but rather, as Justice Sandra Day O’Connor explained in the Hamdi case, “to prevent captured individuals from returning to the field of battle and taking up arms once again.” Because military detention is not criminal punishment, the double jeopardy clause would not ban such detention following acquittal or the end of a criminal sentence.

The Obama administration must better explain the distinction between trial and detention. It should make clear that the purpose of trial is to ascertain guilt and (if the defendant is found guilty) to assess punishment, including, potentially, the death penalty. It should acknowledge that Mohammed can in theory be acquitted at trial, and that any post-acquittal detention would involve a separate process designed not for punishment but rather to prevent Mohammed from returning to battle. Criminal exoneration would not make Mohammed any less dangerous and thus would not affect the government’s independent authority to detain him until the end of the conflict—though the administration might acknowledge that a military detainee should receive better conditions of confinement than a convicted felon.

A different constitutional concern about detention following acquittal is rooted in the due process clause, which guarantees fundamental fairness when the government deprives someone of liberty. But as the Supreme Court has held in cases involving sexual predators, the mentally insane, and deportable aliens, due process, too, permits detention of a dangerous person, even following an acquittal or the end of a criminal sentence. The court has issued some cautionary notes. It has expressed concerns about indefinite civil detention in some contexts, but it has also pointedly distinguished detention related to terrorism. And it has insisted in some contexts on high or clear degrees of dangerousness before permitting detention.

Whether a terrorist is detained in the first instance or following a trial, the government’s current terrorist detention program should surmount these and other due process hurdles. In fact, the justices have already held that due process permits the detention of an American Taliban until the war in Afghanistan is over, as long as certain very basic procedures are followed. Lower courts have extended this reasoning to the detention of al-Qaida members until the end of the conflict with that group. Congress could strengthen these precedents by enacting a statute with contemporary standards for detention. But for now, the White House seems to think, probably correctly, that it can get by without a new law.

Different Systems for Different Terrorists

While Mohammed gets a criminal trial in federal court, the Obama administration has made clear that at least five other suspected terrorists will be prosecuted before a military commission that uses more government-friendly rules, and that other terrorists will be detained without trial based on an even lower standard. Critics claim it is unfair for the government to pick and choose among these systems. Such “forum shopping” shows a “lack of principled consistency,” charges Andy McCarthy, that might go against “the bedrock American principle of equal protection under the law.”

But there is no constitutional objection to forum shopping of this sort. In fact, it happens all the time. In 1942, President Franklin D. Roosevelt insisted on military commissions for Nazi saboteurs rather than a civilian trial so he could seek the death penalty. Maj. Nidal Hassan could be prosecuted in a civilian or a military court for the Fort Hood shootings; the government chose military jurisdiction, perhaps to have military jurors hear the case. After federal and state prosecutors from several states fought to prosecute sniper John Allan Muhammad, the Department of Justice released him to Virginia officials, in part because the jury pool and procedural law in that state favored conviction.

The government traditionally has great leeway to choose among legally available justice systems based on all kinds of factors: policy goals, litigation strategy, resource allocation, ease of proof, severity of offense, and the like. The choice between civilian trial, military trial, and military detention is an application of this old principle in a new context. Over time, there may be political pressure to move all terrorists into a single trial system. But we’re not there yet. For now, the government is on safe enough legal ground.