A troubling terror trial

This song is dedicated to accused terrorist Khalid Sheikh Mohammed: "Free Me," by Roger Daltry.

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Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11, 2001 attacks on the World Trade Center and Pentagon, could soon be a free man. What form that freedom remains to be seen.

President Barack Obama recently proclaimed that Mohammed most certainly will be convicted, and executed, of planning the attacks that killed thousands of Americans and others. That would thus free him from his earthly shackles and send him on his way to meet Allah.

Of course, Obama should never have gone and done such a thing. Mohammed has been brought stateside from his pen at Guantanamo Bay, Cuba, where he was being held as a military combatant (but without the guaranteed rights the Geneva Conventions provide for war prisoners). He will face a civilian trial in a New York federal court, Attorney General Eric Holder recently announced. That means a civilian jury will be chosen to hear the evidence and pass judgment.

While many people express concern about such a trial, and insist that the attacks were an act of war, the decision is the right one. Radical Muslims might consider this part of a holy war, and it was, essentially, the provocation that led us to launch military action in Iraq and Afghanistan, but it remains an act by individuals acting without the sanction of any government (to the best of our knowledge), and the largest targets were buildings filled with innocent civilians, although the Pentagon houses our nation’s military brain trust. If this deserves to be tried in military court, then Timothy McVeigh should also have faced military trial for his attack on the Murrah Federal Building in Oklahoma City in 1995.

In civilian trials, defense attorneys always look for, and prosecutors try their darnedest to guard against, anything that might prejudice the jury and deny the accused a fair, impartial trial. That could lead to a mistrial and another kind of freedom for Mohammed — he just might walk out of the courtroom a free man.

And it’s hard to think of anything more prejudicial than to have your conviction promised by the president of the United States, before any evidence has been offered.

Prosecutors face other problems securing a guilty verdict against the alleged terrorist, not the least of which is the reported torture of Mohammed and others. He reportedly confessed to the crime, but how valid is that confession if it was obtained through waterboarding or other "enhanced coercive interrogation techniques," as the Cheney — er, Bush — administration calls the mistreatment wrought on several Guantanamo inmates?

Even if the confession is allowed to stand, we can’t assume it will stick. I’m no expert on the radical, violent fundamental arm of Islam that brings God’s wrath down on his children, including fellow Muslims, but from what I’ve seen, we can’t discount the possibility that Mohammed would be only too happy to take the fall for this act — which he probably doesn’t see as a crime — even if he’s not the real brains behind the deed. What if the evidence reveals that he isn’t?

Think about it: why wouldn’t a good fundamental warrior want to admit to this act and face the executioner’s needle? He’d become a hero and a martyr in the minds of his fellow jihadists; in his mind, he’d get to leave this earthly existence that much sooner and move on to the afterlife, where he’d get to deflower all those waiting virgins. And, he’d enable the real mastermind to continue escaping scrutiny, leaving him free to continue planning and, perhaps, financing other acts of holy terror.

Certainly, a lot of people won’t care. He’s radical enough, and many people want to see somebody — anybody — fry for what happened. And as time passes and evidence and memories become murkier, crystal clear proof that Mohammed, or anybody else, is directly responsible for the attacks becomes harder to get.

We need to remember, however, that vengeance is not justice. Executing the wrong guy and closing the books isn’t just a miscarriage of justice, but it also enables the real killer to escape the justice he deserves.

So this trial could prove problematic. But that’s precisely why this case is best tried in a civilian court, under our rules of thorough discovery and evidence.

At least our president is confident of the outcome. Unfortunately, his own expression of that confidence might well have put the outcome in doubt.

Carlos A. Rodriguez is opinion editor of The Brownsville Herald. His e-mail address is crodriguez@brownsvilleherald.com.