Tulsa World: Terrorist trials panned, defended

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Terrorist trials panned, defended
An ex-prosecutor says it will be difficult to get a death penalty.

By DAVID G. SAVAGE Los Angeles Times
Published: 11/30/2009 2:33 AM
Last Modified: 11/30/2009 6:21 AM

WASHINGTON — After Zacarias Moussaoui — the accused "20th hijacker" in the terrorist attacks of Sept. 11, 2001 — was sentenced to life in prison in 2006 because one juror in Virginia refused to agree to the death penalty, he clapped his hands and called out, "America, you lost and I won."

Now the Obama administration plans to seek a death sentence for Khalid Sheikh Mohammed, the self-proclaimed Sept. 11 mastermind.

Some legal experts have said that President Barack Obama was overly confident when he predicted that critics of trying Mohammed in a federal courtroom in Manhattan would be silenced "when the death penalty is applied to him." To this point, the only modern-day terrorist to be sentenced to death in a federal court was Oklahoma City bomber Timothy McVeigh.

"It will be an uphill battle to get a death penalty in these cases," said Paul Butler, a former federal prosecutor in New York.

He helped win convictions of four acolytes of Osama bin Laden who plotted the simultaneous 1998 bombings of U.S. embassies in Kenya and Tanzania, which killed 224 people. Jurors in 2001 found the men guilty but were divided on the punishment. As a result, all four were sentenced to life in prison.

Some jurors said afterward that they opposed a death sentence because the defendants had said they wished to die as martyrs.

"Obviously, the 9/11 crimes are as serious as you can get," Butler said. "But it is difficult to get 12 people in Manhattan to agree on a death penalty."

Last week's decision by Attorney General Eric Holder to try Mohammed and other accused Sept. 11 plotters in federal court rather than under the military commission system set up at Guantanamo Bay, Cuba, set off a legal and political fight that shows no sign of subsiding.

Critics said a Manhattan trial posed a grave security threat to New York. They also expressed fears that defendants would be found not guilty or escape the death penalty. They also argued that the alleged perpetrators of the worst mass murder in U.S. history would use the trial to spew propaganda.

But defenders said that the nation's courts have shown themselves capable of trying and convicting the worst of criminals. And, they said, trying the accused terrorists as ordinary criminals and murderers was more fitting than treating them as warriors.

Lawyers on both sides have said that they expect Mohammed and his alleged co-conspirators to be found guilty. And although 12 military officers at Guantanamo might be more likely to impose the ultimate sanction than 12 civilians in New York, the limited experience with such commissions does not make that a foregone conclusion.

The Pentagon's lawyers had sought a 30-year prison term for Salim Hamdan, bin Laden's former driver, but a military judge sentenced him last year to serve just six additional months in prison. He subsequently was released and sent home to Yemen.

Critics of trying the alleged Sept. 11 plotters at Guantanamo have said that uncertainty over the commission rules — in military trials, the use of "hearsay," or out of court, statements may be permitted if the judge believes the testimony to be reliable — could have led to delays or lengthy appeals.

"These prosecutions could have been delayed for years while the courts resolved questions about hearsay or secret evidence," said Jameel Jaffer of the American Civil Liberties Union. "A federal court trial should go more smoothly."

Meanwhile, critics of Holder's decision have focused on the difficulties of trying international terrorists in a civilian court in Manhattan.

"I suspect KSM is absolutely delighted by this decision," said Brad Berenson, a former White House lawyer in the George W. Bush administration, referring to Mohammed by his initials. "This means a return to the scene of his greatest triumph. And it gives him a megaphone 100 times greater than he would otherwise have."

Earlier this year, Mohammed said at a Guantanamo hearing that he wished to plead guilty. But Duke University law professor Scott Silliman said the government should not count on him and his four alleged co-conspirators pleading guilty now.

"I think it's likely KSM will want to use the trial as a forum for himself and to put the government on trial. I will be very surprised if he pleads guilty," said Silliman, a former military lawyer. "We should expect a long, convoluted trial full of difficulties for the government."

But defenders of using the federal courts say it is more proper to try Mohammed and his cohorts as ordinary criminals.

"The best thing Obama is doing here is saying these people are not terrorists with super-human qualities. They need to be brought to justice and tried as criminals," said Karen J. Greenberg, a law professor at New York University. "We should have brought them to trial a long time ago."

She and others noted that a long list of accused terrorists have been tried and convicted in federal courts in Manhattan, including the World Trade Center bomber Ramzi Yousef. By DAVID G. SAVAGE Los Angeles Times

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	Report Comment Basil, Tulsa (11/30/2009 8:22:53 AM) This is the most ignorant action of this administration to date, and that's saying something considering all the possible contending policies for this distinction. We do not try enemy combatants in criminal courts, as if they have the same rights as Americans citizens. We do not give a platform for them to defend their hate-filled ideology that inspired them to commit mass murder in our nation. Their actions are indefensible, except by their corrupt Islamic ideology of hate and supremecy, which teaches them that killing infidels, who they consider to be lesser people, is honorable. They will cite many examples of American agression in their lands, but none justify the murder of the thousands of innocents that occurred on September 11th.
	Report Comment flyingtheo, Broken Arrow (11/30/2009 6:40:24 PM) The "fix is in" for Attorney General Eric Holder to use this for political theater and try the CIA for water board torture. Something that he and Obama has been wanting to do since he was appointed by Obama. This is the same Eric Holder that successfully recommended to Clinton that he pardon the guy convicted of selling arms to Iran during the hostage crisis.
	Report Comment flyingtheo, Broken Arrow (11/30/2009 6:53:03 PM) n his final days with the Clinton administration, Holder was involved with Clinton's last-minute pardon of fugitive and Democratic contributor Marc Rich. Between November 2000 and January 2001, Jack Quinn, Rich's lawyer and former White House Counsel from 1995-96, had been contacting Holder, testing the waters for the political viability of a presidential pardon. After presenting his case to Holder in a November phone call and a last minute January 17 letter, Quinn arranged a phone call between the White House and Holder, asking the Deputy Attorney General to share his opinion on the Rich pardon. Holder gave Clinton a "neutral, leaning towards favorable" opinion of the pardon. The reporter Joe Conason contends that Rich's pardon was actually a favor from Clinton to members of the Israeli government, for which Clinton hoped to gain progress in the peace talks between Israel and Palestine
	Report Comment oldrustytulsa, Tulsa (11/30/2009 7:40:41 PM) These folks owe a blood debt to America, as our troops have been killed in the Wars, but Obama dont Care.

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