Allow justice to take its course

The US attorney general, Eric Holder, deserves two cheers for his brave decision to bring the alleged 9/11 conspirators to an open trial in New York rather than to put them through a discredited military commission process. But his demand for the death penalty will be counterproductive: the obscene ritual of lethal injection will bestow on convicted defendants the martyrs crown they so desperately crave.

There will be some surmountable problems in ensuring a fair trial in New York, where 12 angry men — and women — may even now be too emotionally involved in 9/11 and its aftermath to consider the evidence dispassionately. There will be a strong case for a change of venue to another city, where US law which permits rational j ury challenges can assist in weeding out pre-judgment.

This is a trial that must be seen to be fair not only by the American media (which to judge from the questions at Holder's press conference has already made up its mind that the defendants are guilty) but throughout the world. Much will depend on the choice of judge, who must be conspicuously independent and of sufficient steel to reject evidence obtained by torture that there is no doubt that Khalid Shaikh Mohammad has been waterboarded.

The death penalty decision will ultimately be for the jury, and it can only be hoped that they will refuse to contemplate the spectacle of convicted defendants, spot-lit and stretched on a hospital trolley, in some auditorium which must by law be large enough to accommodate relatives of their victims. Does Holder plan to requisition a baseball stadium?

It would be a martyrdom beyond the wildest dreams of the most fanatical terrorist. There is one reassuring precedent, the jury trial in Virginia of Zacarias Moussaoui, who was alleged to be the ‘20th hijacker'. The jury rejected the prosecution's overblown demand for his death, although the judge had unfairly allowed them to hear tapes of the last moments of Flight UA93 in order to inflame their prejudices.

There is, of course, a better solution. The 9/11 atrocity was, in international law, a crime against humanity and there is no doubt that the UN could have provided three international judges and the kind of trials currently being visited upon Charles Taylor and Radovan Karadzic.

Fair game

That would end not with one word from the foreman of the jury (‘Guilty'), which will hardly convince doubters, but with a closely and carefully reasoned judgment setting out the case for guilt beyond reasonable doubt. But international courts cannot impose the death penalty and American attachment to this punishment is still unassailable.

A jury trial, though, is a full-blooded adversarial affair in which defendants can be aggressively defended and prosecution evidence tested for all to see its truth or falsity. Fears that Islamists will exploit the witness stand as a soapbox are unjustified: the issue will be whether they agreed to mass murder, and their political and religious beliefs will be irrelevant.

The assumed danger of giving Al Qaida its day in court weighed too heavily on a vicious administration afraid of justice: US President Barack Obama has taken the more difficult, but more principled, path.

It is regrettable that the non-9/11 defendants still in Guantanamo are to face military trial.

It was Clemenceau who said that "military justice is to justice as military music is to music", and this still rings true, no matter how many changes Congress makes to the Bush administration's kangaroo courts. If jury trials are appropriate for the 9/11 conspirators, then they should be afforded to all prisoners whom American prosecutors wish to execute or to incarcerate for the term of their natural life.

 - Geoffrey Robertson QC is the author of Media Law and The Justice Game.