Editor’s Note: The author is a former Federal prosecutor, an Assistant United States Attorney for the Southern District of Florida, the first woman law partner at the Florida law firm of Shutts & Bowen, and former Law Professor at the University of Miami School of Law where she also received her JD.
Yesterday the Administration announced that five alleged terrorists involved in the 9/11 attacks on this country, including Khalid Sheikh Mohammed, the self proclaimed mastermind behind the attacks, would be tried in Federal court in New York City. This is what Attorney General Eric Holder said in announcing the administration’s decision:
With all due respect to the Attorney General, this isn’t about whether the terrorists can get a fair trial in New York, or anywhere else, for that matter, it’s about whether such a trial, or trials could compromise our national security. As a former federal prosecutor, here is why I believe Friday’s decision is fraught with danger.
Any such trial will be governed by our rules of criminal law and procedure…chief among them, our rules of discovery. Under this system, the federal government will have to release to the defendants (and, thus, to the world), all evidence we have obtained against these terrorists. As an example, all of the statements made by the suspects (whether they will be used at trial or not) will now become public knowledge. Al Qaeda will know, not only what we know, but, perhaps more important, what we don’t know about their operations. Further, any on-going investigations based upon that knowledge may well be compromised.
Should we have obtained any evidence from confidential informants about these terrorists that could be used at trial, that evidence will also have to be disclosed, perhaps signing the death warrants of those helping us in our war on terrorism, and discouraging others from cooperating in the future.
And, what of the trial itself? At some point national security issues and interests could well trump the desire to get a conviction, though from what I have observed, national security issues and interests seem to be taking a back seat these days. But, assuming that happens, does the government risk loosing a conviction for lack of evidence, or risk public disclosure of highly classified information?
And, the list goes on.
This is a horrible decision for so many reasons. The only people laughing at the moment are al Qaeda…laughing at the stupidity of this administration.
Update: Here’s another former prosecutor’s legal take on the Holder decision. Rudy Giuliani calls it a legal nightmare. Putting America on trial.