The following editorial first appeared in the St. Louis Post-Dispatch:
Khalid Sheik Mohammed, alleged mastermind of the Sept. 11, 2001 attacks, and four of his alleged co-conspirators will be tried by a military tribunal in a courtroom at Guantanamo Bay, Cuba, rather than before a federal district court jury on United States soil.
That decision, announced earlier this week by Attorney General Eric Holder, is a return to the original plan for the prosecutions set by the administration of President George W. Bush.
It represents a stunning retreat by President Barack Obama, brought about by Congress’ decision to cut off the funding needed to bring detainees to trial in civilian courts, and Mr. Obama’s unwillingness to press the issue.
History will judge this decision harshly.
Closing the Guantanamo Bay prison was one of the signal goals Obama articulated in his campaign for president. But congressional opposition stymied those efforts. In March, Obama acknowledged that Guantanamo will continue to house prisoners for the foreseeable future.
Now comes Holder to reverse his November 2009 decision that Mohammed and his co-defendants would be tried in federal court in New York City. That was a ringing affirmation of belief in the system of justice that has made the United States a shining example to the world.
But the purveyors of fear pushed back. They claimed federal courts were incapable of managing these high-profile trials. They argued that allowing even imprisoned terror suspects on American soil would compromise national security.
The critics support dispensing with basic protections secured by our constitutional system of justice. They argue that doing so is justified because the nation is “at war.”
There have been only three terrorism-related military tribunals convened since 2001, resulting in one plea bargain and two trials, including one in which a defendant boycotted the proceedings. Sentences have been light.
Meanwhile, as critics of civilian courts were grandstanding before cable TV cameras, the Bush and Obama administrations quietly were prosecuting and winning convictions in terrorism prosecutions in — you guessed it — federal courts.
According to the Center on Law and Security at the New York University School of Law, which publishes an annual “Terrorist Trial Report Card,” between Sept. 11, 2001, and Sept. 11, 2010, the Department of Justice indicted 998 defendants in terrorism prosecutions. In the 668 cases that have been resolved, prosecutors have a conviction rate of 89.6 percent.
Military tribunals have no experience trying complex murder cases, much less cases that could be described as the crimes of the century.
Support for trying Khalid Sheik Mohammed in a civilian court is not the same as being naive about the threat of terrorism.
It has everything to do with being confident in our system of justice and wary of exceptions won through political cynicism, opportunism and fear-mongering.
We have been down this road before. To our everlasting shame, more than 100,000 American citizens and resident aliens of Japanese descent were stripped of their property and put in internment camps after the attack on Pearl Harbor, ostensibly to protect national security.
In 1982, a congressional commission concluded that the internments were “not justified by military necessity” or even “driven by analysis of military conditions.” Rather, the commission found, they were a product of “race prejudice, war hysteria and a failure of political leadership.”
History is repeating itself.