Convicting Khalid Shaikh Mohammed

I am out of the office, but I wanted to post a couple of quick thoughts about Attorney General Eric Holder's press conference today on the decision to prosecute Khalid Shaikh Mohammed and four others for the attacks of September 11.

I am a bit ambivalent about this specific decision, due to several background issues, but I'm generally in favor of criminal trials for terrorism, especially for attacks which took place on U.S. soil. Trials are an important tool for educating the public. We the people will likely learn far more about 9/11 from this trial than we did from the 9/11 Commission (if the defendants don't plead guilty). The importance of an informed public cannot be overstated.

A couple of concerns have been raised about the trial. September 11 family members have pointed out that the suspects are likely to use this occasion to spew jihadist propaganda. This is a fair point. The sentencing statements by Ramzi Yousef and the "blind sheikh" Omar Abdel Rahman and others show both the validity of this concern but also the power of a judge to cut off comments when he or she so chooses.

Rahman mixed those talking points with protestations of his innocence and was eventually cut off by the judge. Most of Rahman's co-defendants spent their time praising America in an effort to get a lighter sentence, which did not exactly make them into international icons. Yousef, on the other hand, spouted off incendiary jihadist talking points at some length. Khalid Shaikh Mohammed is more likely to follow the example of his cousin Yousef than to grovel.

The other major issue raised at the press conference was the admittedly unlikely prospect that through some technicality or twist these suspects could be acquitted or released.

This concern isn't groundless, and Holder's response -- that he's super-sure it won't happen -- was not ideal. If prosecutors controlled outcomes, we wouldn't ever see an acquittal. As far as KSM specifically, in the unlikely event of an acquittal, there are numerous other crimes he could be charged with, including an outstanding 1996 sealed indictment for the Bojinka plot.

One factor in this consideration, which seems to have gone over the heads of many pundits: Holder rather specifically said there is evidence which has not yet been released to the public, and he seemed to be pretty confident that this evidence equates to a smoking gun. That should be interesting.

One last point -- the defendants named today have confessed and pleaded guilty in their earlier tribunal appearances and basically begged to be executed. Everyone seems to be assuming this case will go to trial. This is an interesting question and shouldn't be taken for granted.

On the one hand, pleading guilty will elevate their status if the U.S. eventually decides to grant their wish for martyrdom. On the other hand, it's hard to imagine that these guys wouldn't embrace the opportunity to make some noise by dragging this out into a full trial. Either way, though, the media and pundits should not assume this is going to be a full-scale production number.

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Posted by J.M. Berger | Permalink