Gearing up for terror trials.

• Author: Howell, Llewellyn D.
• Position: WORLD WATCHER

IT CANNOT BE SAID that controversy is swirling around the possibility of civilian trials for terrorist suspect Khalid Sheikh Mohammed and others in New York City. There only is a swirl on one side of the issue: against. On the other side are law, logic, common sense, history, and strategy. The opposition to a civilian trial is entirely political.

It never really has been determined whether a terrorist is a criminal or a soldier, the only two categories our society has for bringing those suspected of acts of violence to trial. We also have not actually decided on what a "war on terrorism" is. Is it: like World War 1I (declared); the Vietnam War (undeclared); or the War on Poverty or the War on Drags (a campaign, maybe)? Short of deciding on a legal basis for the paramilitary and police actions against those who are planning terrorist acts as well as committing them, we have to operate with the available tools.

After Pres. George W. Bush's attempt at Military Tribunals at Guantanamo and the Supreme Court's rejection of them in 2006, the controversial--but still formally legal--Military Commissions Act was promulgated to insert a third way to approach trying terrorism suspects, but the Military Commissions have failed to provide the alternative intended. A good share of the case for a civilian trial for Khalid Sheikh Mohammed is that the Military Commissions have been thoroughly challenged and unsuccessful. They have resulted in only three convictions thus far.

In addition, there are a number of problems with this option simply on the face of it. First, we cannot assume that a Military Commission would be held at Guantanamo. We are in the process of closing the prison there and, despite delays on the part of the Obama Administration, the doors will have to be shut before we are very far into the election cycle of 2010. If Obama does not keep this campaign promise, there will be an uprising on the left instead of the right. Obama already has enough trouble with his party's left.

Second, contrary to claims from Republican critics, a Military Commission trial is no guarantee of a conviction, let alone an assured death penalty. Challenges have arisen within the U.S. military itself regarding what appears to be railroading of detainees toward conviction. The media never will let a secret trial pass without inordinate attention to whatever it can get in the way of dramatic coverage.

Third, the eyes of the world will be on any Commission, its...