Stephen Nessen, Reporter, WNYC News
Stephen Nessen reports for the WNYC Newsroom and can often be heard live on Morning Edition.
The Obama administration's decision to move the trial of alleged September 11 mastermind Khalid Sheikh Mohammed and four others from federal court in Lower Manhattan to a military tribunal at Guantanamo has some concerned justice will be compromised in what one critic dubbed a "second tier system."
A federal trial has jurors picked at random, and a judge that sits for life — a check to avoid being swayed by political influences. A military tribunal is made up exclusively of members of the military: the judge, jury, prosecution and defense are all members of the armed services.
Federal court has hosted high-profile terrorism cases in the past, such as the trial of Oklahoma bomber Timothy McVeigh. But there have also been several recent criminal cases held in military tribunals at Guantanamo, including Osama Bin Laden’s driver, Salim Hamdan, and Australian David Hicks, who was captured in Afghanistan and convicted of having provided material support to terrorists.
But some say there are separate justice systems at work.
"It's a terrible failure by the Obama administration," said Bill Quigley, legal director at the Center for Constitutional Rights, of the decision to move the trial. "They were right when they wanted to use the tried and true, tested method of the Constitution, civilian courts for this. By doing this they have created a completely separate criminal justice system."
He added, "It's a political failure and a justice failure."
Quigley said he feared this is a separate form of justice, and sets a bad precedent: "I fear that history will show that we are throwing out the rule of law because of fear and concern and in the long run that's going to hurt us all."
President Barack Obama's first executive order was to close the Guantanamo Bay prison and to stop all military commission proceedings. But in 2009, Obama conceded that some cases would be heard at Guantanamo, with the new restrictions in place.
Jim Cohen, a law professor at Fordham University, said the differences between military and civilian court are much smaller than they used to be. In the past, military commissions had looser restrictions on the use of hearsay, which is strictly governed in federal criminal court. And the military used to be allowed to use coerced statements in court, but neither of those practices have been permitted since 2009.
Cohen said the military tribunal should run about the same as a civilian federal court.
"There will be plea bargains, agreed upon sentences that are contested that the military jury will decide," he said. "There might be dismissals, but they will be all of the things that normally occur in a criminal case in the United States."
As far as the death penalty, he expects the defendants will probably be subjected to that in the military court as well.
"I think some people who think the military commission amounts to a quick-and-dirty way to obtain a guilty verdict may be surprised to find out just how mixed the track record, minimal though it's been thus far, of military commissions has been," said Samuel Rascoff, a law professor at NYU.
Rascoff said the decision was not a vote in favor of a military commission, but rather a vote against the criminal trial.
"There are significant procedural and evidentiary flaws in the military commissions, which make them a second tier system of justice," said Hina Shamsi, director of the ACLU National Security Project.
Shamsi said her organization is disappointed with the decision and warns the trials will be subject to legal delays and that the "the outcomes will not be seen as legitimate."
And Orlando Rodriguez, a professor at Fordham University, who lost his 31-year-old son on September 11, isn’t happy with the decision.
Rodriguez, also a member of 9/11 Families for Peaceful Tomorrows, considers the attacks a "federal offense," not a war crime.
"These are not people captured by any war as defined by the Geneva Convention. For our own freedoms and for keeping our civil liberties as strong as possible, people who are accused of these crimes should be tried in a federal court."