The 9/11 trials: Holder’s last stand


Last year, Attorney General Eric H. Holder declared that America was a “nation of cowards” in the area of race relations. Predictably, pundits and politicians hollered Holder down; members on each side of the political aisle spouting sanctimonious verbiage about “how far we’ve come,” believing that the presence of a black president in the White House meant that the struggle for civil rights was at or near an end.

Less than ten months after the “nation of cowards” flap, Holder triumphantly announced his decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in Federal Court in Manhattan, steps from the former World Trade Center.

Little did Holder know how prescient his February words about America’s cowardice would become, as slowly, but steadily, members from all parts of the political spectrum conspired to keep KSM and other 9/11 plotters out of civilian court.

Some of the arguments in favor of military commissions stemmed from true intellectual disagreement—the belief that terrorists caught on foreign soil were not entitled to the rights provided to criminal defendants in civilian courts. While I strongly disagree with that position, there is nothing inherently cowardly about the belief that the Constitution applies to certain individuals and not others.

However, much of the vitriol hurled Holder’s way was fear-mongering about the nation’s ability to adequately defend itself, the courts’ capacity to protect classified information, and, most spinelessly of all, concern about the fact that terrorists would have a platform for their own cowardly ideology.

Indeed, it did not take long for politicians to whine about the alleged risks the trial brought to New York City. Rep. Peter King, a Long Island Republican, said that hosting the trial in Lower Manhattan would move New York City “to the top of Al Qaeda’s target list.” King must be the only New Yorker who doesn’t already know that New York is Al-Qaeda’s #1 target.

Holding KSM’s trial in Lower Manhattan would not make the city a more attractive target for terrorists. The New York City Police Department has the most capable intelligence and counterterrorism units of any police department in the world. Moreover, were the trial to be held in New York, KSM and his co-conspirators would likely be housed in Unit 10 South of the Special Housing Unit in the Metropolitan Correctional Center in Lower Manhattan, a maximum-security unit specifically designed to house terrorism suspects and other offenders who pose a proven danger to other inmates or prison guards.

Others who criticized Holder’s decision expressed concern about the nation’s ability to control classified information. In the Wall Street Journal, former Justice Department lawyer John Yoo wrote that trying KSM in civilian court would provide an “intelligence bonanza” for Al-Qaeda. While we shouldn’t be surprised by now of Yoo’s unparalleled ability to look the other way when the law repudiates his personal beliefs, it is worth noting that military commissions use the same law to protect sensitive national security evidence as the federal courts, the Classified Information Procedures Act (“CIPA”).

CIPA was successfully implemented during Zacharias Moussaui’s trial in 2006, a trial that then-Senate Majority Leader Bill Frist (R-Tenn.) hailed as “a small but important piece of justice” that provided “proof that our society is grounded in the liberating power of justice and the rule of law, which are our most valuable weapons in the war on terror.” The Moussaoui court even took the extraordinary step of creating a special website where the public could view nearly 1200 trial documents.

Independent of the concern about classified information, abandoning the civilian courts would prevent the U.S. from bringing some of its most wanted terrorists to justice. As the New York Times reported this week, a commissions-only policy would prevent some nations from extraditing terrorism suspects, including two men suspected of plotting the 1998 East African embassy bombings and a Somali citizen accused of recruiting American citizens to fight for al-Shabaab.

As pitiful and uninformed as King and Yoo are, Rep. Pete Hoekstra’s (R-Mich) pathetic fear mongering is unparalleled. Hoekstra told CBS’ Face the Nation that terrorists should not be tried in civilian court because it would “allow them to use it as a platform to push their ideology.”

If Al-Qaeda wants to pit their murderous ideology against the values of liberty, equality, democracy, and the rule of law, I say bring it on. We may not win over “Jihad Jane,” but we will show billions of peace-loving people that our nation’s strength is not in its arms, but in its fundamental principles.

If President Obama intervenes to send KSM’s trial back to a military commission at Guantanamo Bay, Eric Holder has a clear choice: join the cadre of cowardly politicians and professors who view the rule of law and the values of our nation as insufficient bulwarks against a murderous, radical ideology, or resign his office in protest. The Attorney General was right to call out America on its cowardly approach to race relations. Now, it is time for Holder’s Last Stand.

Andrew L. Kalloch ’09 was Editor-in-Chief of the Harvard Law Record from 2008 to 2009. He now lives in New York.

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