The Obama administration’s honourable decision to try Khalid Sheikh Mohammed — the self-confessed mastermind behind the attacks in the United States on September 11 — 2001 and terrorist attacks on U.S. buildings and citizens overseas, in a civilian federal court has created nearly as many problems as the Bush administration’s notorious creation of the Guantánamo Bay detention centre in which Mohammed and 239 others have been held for several years. Some of the problems are practical ones; for example, the Bush administration’s incompetence means that many of the case documents are scattered around the world. There are political problems too, as Mr. Obama’s decision to close the Guantánamo centre is unpopular with those who do not want the detainees held in their neighbourhoods; the term NIMBY, meaning ‘Not in my back yard,’ describes them accurately. That problem might be soluble, as plans are afoot to move the detainees to a high-security prison near Thomson, Illinois. Other political difficulties, like Republican opposition in Congress to the $80 million that it will cost to close Guantánamo and move the detainees to the U.S., may be more troublesome, because large numbers in the U.S. regard the detainees as guilty and dangerous irrespective of any legal process.
The main problems, however, are legal ones. U.S. military commissions have lower standards of proof than civilian courts, and Mr. Obama’s attempts to modify them have been abandoned. Secondly, the plan to try Mohammed and four of his alleged accomplices in New York City, the scene of the main attacks on 9/11, is procedurally sound, but questions arise whether a fair trial would be possible there. Thirdly, Mohammed himself has been waterboarded no fewer than183 times. U.S. attorney general Eric Holder has publicly declared that waterboarding is torture. In advance of a trial, it is difficult to tell if enough evidence has been lawfully obtained against the detainees to convict them. As to a trial itself, Mohammed and his associates have refused to cooperate with their military defence lawyers and may refuse to be represented in a civilian court. It will be for the trial judge to decide if they can represent themselves. A guilty plea will mean there is no trial, but a plea of not guilty could give Mohammed and his associates the opportunity to showcase their ideology to the watching world and give the al-Qaeda a propaganda coup — especially considering that Mr. Holder’s stated intention to seek the death penalty could enable Mohammed to claim that he is being martyred. President Obama is no doubt finding that upholding the law can be fraught with difficulty.