Mohammed is many things: an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the U.S. criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs.

Quite frankly, the tribunals have not even worked that well, considering the record of the military commission system that was established in November 2001. This system secured three convictions in eight years. The only person who had a full commission trial, Osama bin Laden's driver, received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge. One of the reasons the commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the commissions' validity. This uncertainty has led to many legal challenges that will continue indefinitely -- hardly an ideal situation for the trial of the century.

By contrast, there is no question about the legitimacy of U.S. federal courts to incapacitate terrorists. Quite frankly many conservatives here seem to have forgotten the Bush administration used civilian courts to put away dozens of terrorists, like Richard Reid; Padilla; John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. In terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant's ability to raise irrelevant issues and tightly controlling the courtroom.

In either trial forum, defendants will make an issue of how they were treated and attempt to undermine the trial politically. These efforts are likely to have more traction in a military than a civilian court. No matter how scrupulously fair the commissions are, defendants will criticize their relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them. Some say it is wrong to give Mohammed trial rights ordinarily conferred on Americans, but a benefit of civilian trials over commissions is that they make it harder for defendants to complain about kangaroo courts or victor's justice. I’d rather not give al qeada the PR bonanza that a military tribunal would certainly give




It’s a lot of money, I agree, but the cost is worth it.



As I've said, Mohammed might well try to turn it into political theater. But he will mostly fail. There are many rules in place to ensure that Mohammed behaves in court. And even if he does, so what? …. Am I missing something here? Did the Nuremberg trials engender a worldwide epidemic of pro-Nazi nostalgia? Was Israel's prosecution of Adolf Eichmann a PR coup for Holocaust deniers? Is there something so irresistible about murdering innocent civilians that we have to worry about the Pied Piper appeal of anyone who successfully engineers such a slaughter? The reality is that terrorist groups who target civilians are losing popularity almost everywhere in the world where foreign troops are not equally heedless of innocent life. A willingness to uphold long-cherished principles of justice even in the face of such inhumanity would be a powerful expression of American confidence in the rule of law -- even if that is a confidence some Americans, including the champions of secret military tribunals, no longer share.




Seriously, what isn't a media circus these days?



The Bush Administration had the option of using military tribunals, but chose the federal court system instead. A hundred and ninety-five terrorists have been convicted in federal courts, while less than ten have been convicted in military tribunals.



At first I was wondering what you were referring to, then I realize your talking about something I said below. First, let me say there was no insult intended, I typed out that line fast - "murder suspects get off on "technicalities" far less often than you see in prime time"

I didn't mean to refer to your knowledge Tom, but media perception and people in general.



I study law at Berkeley.



Have you been reading that article by Stephen Hayes? You do realize that has been debunked. There has been no policy change and no blanket instruction issued for FBI agents to Mirandize detainees overseas. The only exceptions are specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained.



Moussaoui's trial was challenging because his request for access to terrorists held at "black" sites had to be litigated. Difficulties also arose because Moussaoui acted as his own lawyer, and the judge labored to control him. But it is difficult to imagine a military commission of rudimentary fairness that would not allow a defendant a similar right to represent himself and speak out in court. Anyways, those are only 3 examples, as I recall President Bush brought 195 terrorist suspects into the United States to face the American justice system (Funny, I don’t recall any negativity from conservatives on that decision). Today, these convicted terrorists are being held in U.S. prisons.