Former Attorney General Michael Mukasey, who as a judge presided over a trial stemming from the first attack on the World Trade Center, on Friday warned that the Obama administration’s decision to bring Sept. 11 mastermind Khalid Sheikh Mohammed to New York, along with three other terrorist detainees, to stand trial in a civilian court, reflected a pre-9/11 mindset that viewed terrorism as a simple criminal matter.
Speaking at the Federalist Society’s National Lawyers Convention, Mukasey described the move, as “a decision I consider not only unwise, but based on a refusal to face the fact that what we are involved with here is a war with people who follow a religiously-based ideology that calls on them to kill us, and to return instead to the mindset that prevailed before Sept. 11 that acts like the first World Trade Center bombing, the attacks on our embassies in Africa and other such acts can and should be treated as conventional crimes and tried in conventional courts.”
Describing a pattern of decisions made since the the Obama administration pledged in January to close Guantanamo Bay prison within a year, Mukasey said that, “What’s followed has seemed in many instances to be a system in which policy is fashioned to fit and proceed rhetoric rather than being thought out in advance with arguments then formulated in support of it.”
He noted that Congress already authorized the trial of detainees through military commissions, and that those trials would have already been underway.
“Now, that procedure is to be short-circuited — actually, long-circuited would be more accurate — so that they could be brought to this country and tried in a civilian court,” he said. “We should all be aware that those cases which were scheduled to have already begun now have to start from scratch.”
The difficulty of trying terror suspects through civilian courts, he said, is that the discovery process, the public presentation of evidence, and other elements of a trial “could turn a criminal proceeding into a cornucopia of information for those still at large and a circus for those in custody.”
He pointed out that when capturing the enemy combatants, pieces of information “were not gathered, nor was evidence gathered, on the assumption that they would be presented in a federal court.”
There would also be tremendous security issues involved with making sure that courthouses, jails, the judge and jury, were all safe.
“It would take a whole lot more credulousness than I have available to be optimistic about the outcome of this latest experiment,” Mukasey said at the conclusion of his formal remarks.
During a question and answer session that followed, Mukasey was asked if he felt the jails in New York were secure enough to make sure terrorists would not escape, but he said that wasn’t really the issue.
“If you ask the wrong question, you’re sure to get the wrong answer,” Mukasey responded. “Of course it’s secure. They’re not going to escape. The question is not whether they’re going to escape, the question is whether not only that facility, but the city at large will then become the focus for mischief in the form of murder by adherents of KSM, whether this raises the odds that it will. And I would suggest to you that it raises them very high. It is also whether the proceeding, even assuming that it goes forward within the lifetime of anybody in this room, is one where confidential information is able to be kept confidential, and a trial is able to proceed in an orderly way.”
He later added that, “to the extent that they are within prisons, they are a threat there as well. Any of these people would be a virtually totemic figure in a prison.” He argued that “shoe bomber” Richard Reid’s success in challenging his solitary confinement shows that there’s no guaruntee that convicted terrorists would stay isolated from the rest of the prison population.
Asked about Attorney General Eric Holder’s statement that he was confident that the defendents wouldn’t be able to get off on a legal technicality, Mukasey replied that while he doesn’t have access to the same information as Holder, “Betting the farm on the outcome of that process always involves risk.”
While he was adamantly opposed to today’s decision, Mukasey said that if Mohammed and other members of Al Qaeda had to be tried in civilian courts, no venue is better equipped to handle it than the Southern District of New York, where he served as a judge. He also said he was confident in the jury selection process.
“They don’t have to have been comatose over the past 10 years to serve on a jury,” he explained. “What they have to be able to do is to promise that they will decide the case based only on the evidence presented in the courtroom and not what they hear outside, and there has to be good reason to believe that they could fulfill that promise. And jurors like that can be found. That part of the process I have great faith in. It’s the rest of it that worries me.”
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