The Big Question: How will the 9/11 trials play out legally, politically?

Some of the nation's top political commentators, legislators and intellectuals offer some insight into the biggest question burning up the blogosphere today.

Today's question:

Attorney General Eric Holder's decision to hold detainee trials in New York City has attracted criticism from Republicans. Democrats, meanwhile, are accusing the GOP of playing politics. How will this issue play out legally and politically?

Peter Fenn, Democratic strategist, said:

There is no question that the decision to try the five terrorists (excuse me, alleged terrorists) in New York City has produced a heated and important debate. Everyone and their brother is weighing in on this one.

The questions raised are almost as interesting as the answers: Is this better or worse for the U.S. and the world than a military trial? Is this, as many believe, a slam dunk case, with the death penalty the result? Does a trial at the “scene of the crime,” on U.S. soil, result in a “Nuremberg” effect? Do these five become martyrs or does this show the world the horrendous acts of extremists, pushing Muslims away from violence and terrorism? What happens if they were to get off on some sort of “technicality?” Does a trial in New York invite another terrorist attack or would a military tribunal at Gitmo be more likely to produce such an attack? Is this a potential political disaster for President Obama and the Democrats or will this further Obama’s efforts to truly get a handle on the problem of international terrorism?

This is clearly not without risk -- but if military trials were easy, we wouldn’t have had the Supreme Court decisions and the Bush Administration would have been trying cases left and right. The fact is that only three people have been convicted in military trials, less that one half of one percent of those held. Contrast that with the 92% conviction rate of terrorists who have been tried in U.S. Courts.

The case against these five is clearly unbelievably strong – it is hard to get much better that confessions on Al Jazeera television and even bragging to the world, taking credit for these heinous acts.

In addition, the decision to try the perpetrators of the USS Cole, which took place on foreign soil, in a military court makes sense. Obviously, the key here is to move forward, sort through the legal and logistical morass left by the Bush-Cheney Administration and see to it that justice is done. This is the right call.

John F. McManus, president of The John Birch Society, said:

The decision to try the 9/11 defendants in a civilian court opens up the likelihood that the defendant's right to what is called "discovery" will require providing the defense team with intelligence that will surely make its way back to terrorist allies. These trials should be held in military courts where no such rights exist. Their crimes were acts of war (didn't we go to war as a result?), not the acts of ordinary criminals. The civilian trial of Omar Abdel Rahman after the 1993 bombing of the World Trade Center led to supplying sensitive information to the defense team, and it ended up in the hands of other terrorists. The lesson should have been learned. There's far more at stake here than political posturing.

Craig Newmark, founder of Craigslist, said:

Holding the trials in New York shows our strength as a country, and shows the strength of our judicial system. It demonstrates our moral legitimacy, that we can be "the shining city on the hill."

Glenn Reynolds, the Instapundit blogger, said:

It seems to me that the Obama Administration has managed to get the worst of both worlds here. They made a promise that they couldn't keep with regard to closing Guantanamo Bay. They then tried to cover themselves with the Khalid Sheikh Mohammed trial in New York, only to get blowback both from conservatives and from New York Gov. David Paterson. Then Obama -- like Nixon with Charles Manson -- made a public pronouncement of Mohammed's guilt, only to have to backtrack. The whole affair contributes to an amateurish, not-ready-for-prime-time impression, which isn't what Obama needs as he tries to sell a federal takeover of health care.

Justin Raimondo, editorial director of Antiwar.com, said:

The objections to putting the Gitmo detainees on trial in New York City are only marginally coherent, and seem more like an emotional knee-jerk reaction rather than a credible critique. Failed Republican presidential candidate Rudy Giuliani avers "What the Obama administration is telling us loud and clear is that both in substance and reality, the War on Terror from their point of view is over."

Really? Then why, one wonders, is the Obama administration about to send as many as 40,000 more troops to Afghanistan? Why are US drones striking Pakistani soil – and killing civilians? Why are we spending $3.6 billion every month on the continuing occupation of Afghanistan?

If the upcoming trial of the Gitmo detainees means the “war on terrorism” is over, then one has to wonder what it would be like if the war was still on.

Giuliani also said Khalid Sheikh Mohammed “should be tried in a military tribunal. He is a war criminal. This is an act of war." There is plenty of precedent for trying war criminals in a civilian court: Nuremberg comes to mind (although the two Soviet representatives among the judges were military officers, the rest were not). What about the trial of Adolf Eichmann – was Giuliani opposed to that?

The former Mayor of New York City also complains of the alleged security threat posed to the Big Apple by the upcoming trial, but the city of already a terrorist target: is this trial really going to increase the danger by much? And this objection surely underscores the odd quality of the objections: first we are told that the trail signifies “weakness,” and then the same people cavil that we ought to be scared to death of putting someone on trial on our own soil.

The only serious objection to the trial is the contention that it will provide the defendants with a public platform to make pro-terrorist propaganda – but, really, isn’t the trial itself the best sort of counter-propaganda? After all, in the dock will be individuals accused of killing more than 3,000 people in the worst terrorist attack in our history, and yet there they are, facing a jury of free Americans, being provided with lawyers and a full-fledged legal defense – because that’s just the way we do things here. No better refutation of terrorist libels against America could be imagined.

Politically, I don’t think there will be a whole of ramifications – unless something sensational is revealed at the trial, or if the torture of some of the defendants impedes their prosecution.

Ronald Goldfarb, Pundits Blog contributer, said:

Legally, it is the right thing to do. It is how we handle crime in America. The politics will follow, and opponents (Republicans) won't approve anything the administration does.

Paul Kawika Martin, political director of Peace Action, said:

Legally, I have confidence in Attorney General Holder and fully expect that the Justice Department will win convictions of all of the detainees, including Khalid Sheikh Mohammad. And they will be sent to a federal prison, like the 340 international and domestic terrorists the head of the Federal Bureau of Prisons reports are already in their custody. No one has ever escaped from a federal supermax prison or endangered the communities in which those prisons are located.

Politically, the Republicans continue to flip-flop on the issue. Rudi Giuliani has now done a complete 180: up until very recently, he repeatedly and vocally supported the idea of trying terrorists in U.S. civil courts. He now has entirely contradicted himself. Congressman Mark Kirk of Illinois, who is running for the U.S. Senate, voted in favor of the President moving the detainees to the U.S. before he came out against it. The American people will soon realize that the Republicans are playing politics with this issue. This is appalling given how strongly our top military leaders support closing Gitmo. Colin Powell said on Meet the Press "I would close Guantanamo. Not tomorrow, but this afternoon."

The large coalition, Win Without War, has been doing excellent work on this issue.