Posted on Fri, Nov. 20, 2009

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Clarence Page: Don't be so afraid of trying terrorists in U.S.

Terrorists by definition try to frighten you into changing the way you do things. In the run-up to his trial as an alleged mastermind of the Sept. 11 attacks, Khalid Sheikh Mohammed's success as a terrorist is showing in us. A lot of good, patriotic, law-and-order Americans suddenly sound frightened by our own civilian judicial system.

Almost two-thirds of Americans would rather see Mohammed tried in a military court instead of a civilian court, according to a CNN/Opinion Research Corp. poll released Monday. Only 34 percent say that he should face trial in civilian court, as the Obama administration plans to do.

If Mohammed is tried in the United States, 64 percent of those polled think he will get a fair trial. Most of us believe our system is fair, yet that seems to be what troubles many of us. We'd rather have Mohammed tried by a system that was a little less fair. We'd like a deck stacked more against him.

But, alas, a trial with an automatically assured outcome is not a trial. Calling it a kangaroo court would be an insult to kangaroos.

Still, tribunals make tantalizing red meat for politicians to dangle in front of disgruntled voters. On Sunday talk shows, Rudy Giuliani, New York City's mayor during the Sept. 11 attacks, articulated the most-heard attacks against Attorney General Eric Holder's decision to try Mohammed and four other Guantanamo Bay detainees with alleged ties to the Sept. 11 attacks in civilian court in New York.

"I don't know why you want to give terrorists advantages," he said on CNN, "and, secondly, it's an unnecessary risk." Risk? Current Mayor Michael Bloomberg thinks the city can handle any risk from terrorists.

As for any inadequacy of civilian courts, Giuliani's sentiments contrast sharply with the praise he gave the trial of "20th hijacker" Zacarias Moussaoui, in which he testified. He was "very disappointed" that Moussaoui was not sentenced to death, he told reporters, but "at the same time, I was in awe of our system. It does demonstrate that we can give people a fair trial, that we are exactly what we say we are. We are a nation of law... . I think he's going to be a symbol of American justice."

Somehow that symbol has faded in Giuliani's mind as he worries today about civilian courts giving an "unnecessary advantage" to terrorists. In fact, our federal courts have waged an admirable war of their own against terrorists, whether the judges call it that or not. Our civilian courts have tried 195 cases of terrorism since 2001, according to Justice Department figures.

Meanwhile, three prominent conservatives issued a statement last weekend supporting the administration's decisions to transfer terrorism detainees to federal prisons and to try them in federal court. Other conservatives have since joined the statement by David Keene of the American Conservative Union, Grover Norquist of Americans for Tax Reform and Bob Barr, a former Georgia Republican congressman and Libertarian Party presidential candidate, all in the name of the Constitution.

We Americans should turn to military tribunals only as a last resort, not because we "refuse to recognize that we are at war against terrorism," as Obama's critics charge of him, but because we need to minimize that war's collateral damage to our rule of law.

Clarence Page is a columnist with Tribune Media Services.

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