The 21st Century Phenomenon



US is going through an emotional debate over the trial of five Al Qaeda leaders who plotted The 9/11. According USA Attorney General Eric Holder, on Friday 11/13/2009, the five defendants are supposed to face criminal charges in a New York civilian criminal court for their alleged involvement in committing The 9/11 (see – Holders NY Decision ). 


The supporters of the decision claim that over 300 Islamic terrorists were indicted successfully, convicted and sentenced to long terms in prison – in most of the cases to life imprisonment. They include Ramzi Yousef, other 02/26/1993 WTC conspirators, the “shoe bomber” Richard Reid, Zacarias Moussaoui and many others. 


The opponents say that the possible trial will give a huge platform to the terrorists to spread their ideas, to pose themselves as victims, to challenge the legality of their detention as “enemy combatants” and the legality of the way the evidence against them was collected and plenty of opportunity to turn the trial to an ongoing circus of legal confusion. 


Although both sides are right in their arguments, it seems they miss the point. All 300 convicted terrorists in USA were arrested, detained, interrogated, indicted and, eventually, convicted according to the USA civilian criminal protocol from step one. Since the very beginning their rights and all the following procedures were watched and monitored by a civilian defense lawyer. Therefore in their trial there was only limited room to challenge the legality of the arrests or the validity of the evidence and the trials were, therefore, focused on their substantial actions. 


The 9/11 plotters were arrested under another ambiguous protocol of “Enemy Combatants”, which included also Extraordinary Rendition, considered by the American civil code as illegal. Their capture (not arrests in legal terms), their detention in Guantanamo, their interrogation and the methods of collecting the evidence were not meant, from the very beginning, to stand in legal civilian court but to prevent another possible attack. They could stand in a military special tribunal. 


The main issue for USA is therefore not the capability of the USA civilian judicial criminal system to cope with terror charges – the system proved itself, time and again, as fully capable to handle terror cases successfully, providing they handled the cases from the very beginning, which is not the case of The 9/11 conspirators. 


The real question is whether the civilian judicial system can complete successfully a judicial switch-over from the “Enemy Combatant” protocol, considered totally illegal by the civilian judicial system of the USA. 


Even if USA can do the switch-over it leaves a large space in court to challenge all the previous steps – the capture, the legality of the detention, the interrogation techniques and so on. It will be a very long time, measured in years, before their trial will reach the point that the actual deeds of the defendants will be discussed in court. Meanwhile it will be the USA and its method of fighting terror that will stand on trial and sit in the dock. 


* Eventually, on the same day that President Obama enounced his candidacy to a second term as President in the 11/2012 elections, on Monday 04/04/2011, USA Attorney General Eric Holder reversed his decision and announced that Khalid Sheikh Mohammed and four other 9/11 terror suspects will face a military trial at the Guantanamo Bay detention facility in Cuba, as it was already set up in late Bush’s administration in 2008 (see -Gitmo 9/11 Trial). In announcing his decision, Holder blasted Congress for imposing restrictions on the Justice Department’s ability to bring the men to New York for civilian trials — a course of action Eric Holder promised in 2009. 


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