The following editorial appeared in the Chicago Tribune:
On Thursday, Attorney General Eric Holder announced that five men accused of roles in the Sept. 11 attacks, including alleged mastermind Khalid Sheikh Mohammed, will be moved from Guantanamo Bay to New York for trial in federal court. "For over 200 years, our nation has relied upon a faithful adherence to the rule of law," he said. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., lauded the decision he said would "demonstrate to the world that the most powerful nation on Earth also trusts its judicial system, a system respected around the world."
It all sounds perfect for a Law Day speech. But whom do they think they're kidding?
The fundamental tenet of our criminal justice system is that a defendant is innocent until proved guilty. Along with his confederates, Mohammed will be given the opportunity to defend himself against the charges, and a jury will decide whether the facts warrant a conviction. But it is hard to believe any jury would acquit him or that, if it did, the government would free him.
President Obama seems to take the outcome for granted. "I am absolutely convinced that Khalid Sheikh Mohammed will be subject to the most exacting demands of justice," he said. Northwestern University law professor Ronald Allen notes, "That's the equivalent of saying, 'We'll give him a fair trial and then hang him.'"
Republicans in Congress howled at the idea of allowing even the possibility of acquittals. Their concern seems unfounded.
The Justice Department makes it clear that the defendants should not expect ever to draw another free breath. A spokesman says Holder "would not have authorized the prosecution of these cases unless he was confident that the outcome would be a successful one." And if it isn't? "There are a range of options available in the event of acquittal, and we intend to use all lawful and appropriate means to protect the American people."
In other words, the accused will be locked up if they are convicted and they will be locked up if they are not. A law enacted earlier this year bars any Guantanamo inmates from being released into the United States. About the best they can hope for, according to the Justice Department, is to be remanded to a home country or other nation. But it's hard to imagine the president shipping Mohammed back to Pakistan without a guarantee of his permanent imprisonment.
This approach has a legitimate basis, because it would be irresponsible in time of war for the government to free individuals who it believes have participated in attacks on the American people. But why not just acknowledge that simple truth? The honest approach would be to announce that dangerous defendants such as these will be held indefinitely as prisoners of war under the rules established by international law.
The only plausible purpose of handing the defendants over to the federal courts is to make the point that we are committed to the rule of law no matter what. But given the terms, neither the world nor the American public is likely to be convinced.