A reasonable decision

Reasonable minds can disagree about US Attorney-General Eric Holder's decision to prosecute Khalid Shaikh Mohammad and four other alleged 9/11 perpetrators in a Manhattan federal court.

But some prominent criticisms are exaggerated, and others place undue faith in military commissions as an alternative to civilian trials.

Mohammad is many things: an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the US criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs.

A trial in Manhattan will bring enormous media attention and require unprecedented security. But it is unlikely to make New York a bigger target than it has been since February 1993, when Mohammad's nephew Ramzi Yousuf attacked the World Trade Centre.

If Al Qaida could carry out another attack in New York, it would — a fact true a week ago and for a long time. Its inability to do so is a testament to the US military, intelligence and law enforcement responses since the 9/11 attacks.

In deciding to use federal court, the attorney-general probably considered the record of the military commission system that was established in November 2001. This system secured three convictions in eight years.

The only person who had a full commission trial, Osama Bin Laden's driver, received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge.

One reason commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during the Second World War, have produced great uncertainty about the commissions' validity.

This uncertainty has led to many legal challenges that will continue indefinitely — hardly an ideal situation for the trial of the century.

Extensive experience

By contrast, there is no question about the legitimacy of US federal courts to incapacitate terrorists. Many of Holder's critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including ‘shoe bomber' Richard Reid; Al Qaida agent Jose Padilla; ‘American Taliban' John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammad is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.

In terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant's ability to raise irrelevant issues and tightly controlling the courtroom.

Moussaoui's trial was challenging because his request for access to terrorists held at ‘black' sites had to be litigated. Difficulties also arose because Moussaoui acted as his own lawyer, and the judge laboured to control him.

But it is difficult to imagine a military commission of rudimentary fairness that would not allow a defendant a similar right to represent himself and speak out in court.

Some say it is wrong to give Mohammad trial rights ordinarily conferred on Americans, but a benefit of civilian trials over commissions is that they make it harder for defendants to complain about kangaroo courts or victor's justice.

Of course, the attorney-general made a different call on Mohammad than did the Bush administration. The wisdom of that difficult judgment will be determined by future events. But Holder's critics do not help their case by understating the criminal justice system's capacities, overstating the military system's virtues and bumper-stickering a reasonable decision.

Jim Comey, a deputy attorney- general and US attorney in Manhattan during the Bush administration, is general counsel of Lockheed Martin Corp. Jack Goldsmith, an assistant attorney-general during the Bush administration, teaches at Harvard Law School.