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Media Conference Call: Trial of Accused 9/11 Terrorists

Speakers: John B. Bellinger III, Adjunct Senior Fellow For International And National Security Law, Council On Foreign Relations, and Steven Simon, Adjunct Fellow For Middle Eastern Studies, Co-Author, "The Age Of Sacred Terror And The Next Attack", Council On Foreign Relations
Presider: Lydia Khalil, Former Counterterrorism Analyst, New York City Police Department
November 18, New York.
Council on Foreign Relations

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LYDIA KHALIL: Thank you. Well, good morning everyone. Thanks for participating in this call.

Today, as you know, we're going to be discussing the decision by the Obama administration to try Khalid Sheikh Mohammed, the alleged mastermind behind the 9/11 attacks, and the self-confessed organizer behind numerous other terrorist plots in federal court in New York City. My name is Lydia Khalil, and today we have with us international legal scholar John Bellinger, who's also an adjunct senior fellow at the Council on Foreign Relations, and he's also a former legal advisor to the Department of State and National Security Council. We also have terrorism expert Steven Simon, who is an adjunct senior fellow at the Council on Foreign Relations and the author of The Age of Sacred Terror.

Thank you both for being here with us this morning.

JOHN B. BELLINGER III: Great, Lydia. Nice to be here.

STEVEN SIMON: Likewise.

KHALIL: Okay, so let's start off with this. The decision to try Khalid Sheikh Mohammed -- let's call him KSM for short -- in federal court rather than in a military tribunal has sparked a lot of controversy. But I'm wondering, what makes this trial so different and controversial from the other high profile terrorism cases? I'm thinking, for example, the trial of Timothy McVeigh, or Sheikh Abdel-Rahman, the blind sheik who incited the 1993 world terrorism attack, or even Ramzi Yusef, KSM's nephew, who was also involved in the '93 attack. We managed to prosecute these individuals in federal court, convict them, and without having to resort to any special or extralegal arrangements. What makes this trial different from those?

Perhaps, John, if you might be able to tackle this question first?

BELLINGER: Sure. You know, I think there are similarities and there are differences. I think in general the observers tend to be very ideological about these trials with one group feeling that all of the detainees have got to be tried in military commissions because they believe that we are in a war with al Qaeda, which certainly is true as a legal matter; it has been both the view of the Bush administration and the Obama administration. And then there are those in the human rights community who believe that everybody, no matter where they were captured, even if they were captured by soldiers on the battlefield, need to be tried in a federal court.

My view on this is that although this is a big gamble for Eric Holder with significant legal, political and security risk, that on balance for this particular group it makes sense to try them in federal court because these people are more like traditional terrorists. These people are the masterminds of the plot. They have actually been responsible for planning terrorists acts, and they did violate federal criminal law. Moreover, it's critically important that we demonstrate that these trials are going to be fair, and particularly if we are going to seek the death penalty, and try, as both the Bush Administration and the Obama Administration has, to demonstrate that the military commissions would be fair. That just hasn't happened.

So it does, I think, make sense to try this particular group in federal court because they are more like the individuals who you mentioned, Lydia, and less like individuals who are captured by soldiers on the battlefield. I do think that it makes sense for the Cole bombers, and even more sense for individuals who were actually captured fighting with guns in their hands or pulled out of caves in Tora Bora, for which it would make absolutely no sense and probably couldn't even legally be done, to be -- for those people to be tried in military commissions.

KHALIL: Okay, all good points.

Steven Simon, do you have a take on this?

SIMON: Not one that's different from John's. I think his analysis is pretty good. I did catch his reference to security risks associated with this trial, and I'm not really sure what those might be. But otherwise, no, I think that was the kind of crisp and perceptive analysis that we expect from John.

KHALIL: Okay --

BELLINGER: I mean, I will expand briefly, and Steven -- this will get more into Steven's area than mine, so maybe I can toss it back to him. But, I mean, I don't -- I would not overstate, as I think some have, the security risk for New York, but it obviously is somewhat greater -- and it's hard to say how much -- than if you try them in Guantanamo. Now, you know, obviously, if we tried them in Guantanamo, al Qaeda could still try to carry out a terrorist attack in New York at the same time, but they were never going to have any success in trying to attack the island of Cuba in the Guantanamo naval base.

So I do think that if you try these individuals in New York, the question is not as, you know, some have suggested, oh, they're going to escape out the back door. But we do know that al Qaeda -- and this really is Steve's area more than mine -- does try to keep going back to the same well over and over, and I think it's not out of the realm of possibility that they might try to -- you know, we've seen the Zazi case recently that suggested that they were going to launch attacks in New York, that they might try again to disrupt the trials.

So I do think that there is greater security risk, and certainly, the possibility for great disruption. This will be like U.N. General Assembly week, but for several years running in New York City.

KHALIL: Yes, well, New York definitely remains target number one for al Qaeda.

Perhaps, Steven Simon, if I can ask you another question -- how do believe this trial will likely play out in the Middle East? Will having a federal trial for such a high profile terrorism case take away some of the taint of Guantanamo in the region? Will it affect U.S.-Muslim relations? If it does, how, and does it even matter? Should the U.S. be concerned with public relations at a time like this when it comes to such an important national security trial?

SIMON: Well, public relations is an important component of national security. I think, you know, it's been recognized by all sides in this debate that there is a war for hearts and minds that lies at the center of, you know, what the military calls the long war. So to differentiate between public relations, as you put it, or propaganda, as other people might put it, and national security is probably -- maybe that's a bit misplaced. So that's number one. Whether this will have an effect and how big the effect will be remains to be seen. We know that the election of Barack Obama was greeted with some enthusiasm as a sign of change and a break with the past, and a public trial of Khalid Sheik Mohammed would draw a similar bright line underneath this change in administrations. So in other words, he's not being thrown into a dungeon and, you know, shot in the backyard, but he's actually going to get, as John pointed out, a fair trial.

It will also be an opportunity to showcase the horrors inflicted on New York City, in particular, innocent individuals. And the reason I flag that is because if one trusts the survey data that's come out of the Muslim world over the past couple of years, there's definitely been an erosion in support for violence against civilians in defense of Muslim interests. And I think a trial that showcases the actual victims of 9-11 will go far, or at least some distance, in strengthening that aversion to the killing of civilians.

KHALIL: (Inaudible) --

BELLINGER: Lydia, could I go back -- I don't want to interrupt your train of questions. But, you know, one thing that I think, you know, has not really come out fully in this sort of binary debate, which kind of reflects the whole debate about detainees and terrorism of, you know, black or white rather than sort of in the middle, is -- you know, the military commissions were going to end up in federal court anyway, so for those who suggest that, well, these people only should be tried in military commissions because we're in a war and it will be very dangerous for federal courts to have to deal with this, the appeals from the military commissions were going to end up in federal court and potentially all the way up to the Supreme Court anyway.

Now, you know, potentially the defendants themselves would not have ended up in federal court. They would've stayed down in Guantanamo. But ultimately, this was going to be handled by our federal courts. There were going to be years of appeals anyway. Federal judges were going to be looking at this. And Frankly, if anything, I think the military judges and the military commissions, particularly in these cases, probably would have been more lenient, or at least potentially more lenient, than a federal judge, because they wanted to demonstrate to the world that they were not the kangaroo courts that they've unfortunately been made out to be in the press. So perhaps would've been more lenient than a federal judge.

KHALIL: So if I could summarize, John Bellinger, you're saying that the federal courts were going to be intimately involved in any case, and Steven Simon, that public relations and national security cannot be differentiated and intimately tied. I'm wondering if I can bring it back to another point that was made earlier this week in op ed by John Yoo, a former senior Justice Department official in the Bush Administration. He wrote an op ed in the Wall Street Journal saying that the KSM trial will be an intelligence bonanza for al Qaeda, and that a public trial will reveal intelligence sources and methods.

John Bellinger, are there any truth to these claims? Perhaps you can tackle this first.

BELLINGER: Well, I know Steve's got some views on this, because he just wrote a very good op ed about it. You know, I don't agree with John Yoo on that. You know, one, the federal courts -- and again, let me be clear here. I am not one of those people that believes that all of these cases ought to be tried in federal court for ideological reasons. I think, actually, most of the rest of the cases probably ought to be tried in military commissions. But I also think that in this case that it's not going to be an intelligence bonanza. Federal courts, in fact, are used to dealing with classified information, probably more used to it than military judges. We have a Classified Information Procedures Act that has worked well for a long time, and moreover, in the military commissions it's not at all clear that the military judges would've been able to protect classified information any better than the federal judges would. If there's a perception that somehow the military commissions would've been better at protecting the information -- and certainly, the procedures were in place, but it was all going to be up to the judge.

And the record so far has been by some pretty independent-minded military judges, who have really been putting the prosecutors through their paces. So I think it's not correct to suggest that it would be an intelligence bonanza if you're in federal court, whereas there would've been no intelligence that would've been provided in the military commissions. And as I think Steve will say, you know, it's also not really clear how much intelligence information is really clearly left that has to be protected at this point.

KHALIL: Steven Simon, let me take this back to you. You wrote in your excellent op ed this morning about this issue a bit as well, and you referenced the Nuremberg trials where you said, "Historically the public exposure of state-sponsored mass murder on terrorism through a transparent judicial process has strengthened the forces of good and undercut extremists." But I'm wondering if you could differentiate between these trials in federal court under our current system and the Nuremberg trials, which were essentially special courts that were set up to address a particularly thorny issue, how to process Nazis and war criminals. Do you thin it would be better to open up some sort of terrorism court that is not a closed military tribunal or not trying terrorists in the same system as other criminals, a middle path so to speak?

SIMON: Well, actually, that's a question that is better directed at John. I mean, to me, it looks like the two alternatives we have, you know, are pretty resilient and pretty versatile, and they would cover 99.9 percent of the cases that could conceivably arise. It's also worth noting that -- at least with respect to the military commission venue in Guantanamo -- and John can correct me if I'm wrong on this point, but there is a press gallery, which is very elaborate. So even a military commission trial wouldn't in a sense be a secret trial. It would be more, you know, constrained, I guess, in a number of ways, but it certainly wouldn't be secret. But again, I defer to John on that.

The analogy with Nuremberg, I concede, was not perfect because Nuremberg was a special court that was presided over, I believe, by military judges. Certainly, the lawyers were all military and the trial was administered by military forces. But the key thing about that trial that struck me as analogous to the current situation is that it was open. And there were a very large number of observers and there was a lot of reporting of it, and it was decisive, I think, in showing the world the evil of the National Socialist regime that ran Germany for -- you know, since '33 up until its destruction in 1945. So that was hugely important. And it was that link to the KSM trial that really intrigued me, because this, likewise, is a chance to show the world, you know, the evil, for lack of a better word, of the people who visited this terrible, terrible thing on New York City and the people in those buildings on 9/11, and I think that's really important.

And again, it's important with a view towards influencing a Muslim audience that seems slowly and haltingly to be coming around to the view that killing civilians is the wrong way to protect and defend the interests that they see as besieged by the West.

BELLINGER: Let me just follow up on one thing, Steven, 'cause it's a good point, and I sort of throw this out for sort of lead purposes for the press here. But I think you're on to something. As I understand it, actually, the federal courts in New York have never had televised trials. I don't believe that there are cameras allowed in the courtrooms in New York, and so unless something changes, this would not actually be televised in any way, so it will be simply open up to the press and press artists to go and report out anything that KSM may have said, whereas I believe for the trials in Guantanamo, they actually were going to be televised with a delay, or at least back to some people on the mainland. I don't know whether it would've been broadly available, but there was -- there were actually going to be cameras in the courtrooms admittedly with some delay, a three second delay, unless there was, you know, something extremely sensitive blurted out. But that might be interesting for the press to sort of follow up on.

KHALIL: Well, one final question before we open it up to the others on the call. I want to give you both a chance to redirect the conversation. We've had a very noisy public debate about this. But what do you think we're missing? What are the pundits and the public and the Obama administration not addressing or considering with regard to this issue that we should be paying attention to in your expert opinions?

John, would you like to address this first?

BELLINGER: Well, I think I would just say -- it's really the points that I made before, which is as with everything in the detainee debate, people tend to make it look like it's either black or it's white, when actually, in many ways, these -- the trials were not going to be that dissimilar. The military commission trials would've ended up in federal court anyway. So I don't think these are going to be easy to do these in New York, and I think there are going to be lots of problems, and certainly, just as a matter of traffic congestion and so forth, it probably would've been easier doing them in Guantanamo. But, you know, the idea that this is going to be a disaster I think is just not true.

In fact, I will make this last point. The federal prosecutors are really more used to doing these kinds of cases anyway. One problem that certainly we had experienced in the Bush administration was that although we have a very well functioning military justice system that -- unlike the characterization, the demonization of it in the press by human rights groups and others, was, in fact, a well functioning system with good judges and good lawyers who I think would've been fair.

The fact is none of the military prosecutors had had experience in dealing with a massive murder or terrorism case like this. They're used to trying, you know, one or two soldiers at a time who may have done something wrong, and we were already, actually, moving in the Bush administration trying to shore up the military prosecutors with people from the Justice Department. And this case, actually, will be the other way around. The federal prosecutors who actually do have a lot of experience in this area will be in the lead.

I guess my last point will be -- the one concern, actually, that I do have is that in the -- as I understand it, in the Southern District of New York there is a so-called wheel system to pick the judge and that will -- it's possible that if they pick the wrong judge out of the hopper, that there could be real problems if they do not pick a judge who can really manage this trial. I mean, we saw what happened with Judge Ito a number of years back in the O.J. trial. And even Judge Brinkema, who's an outstanding judge, but, you know, who had some difficulty with the Masawi trial. It will be very important to try to get the right judge if it is possible to do with the lottery system in New York.

KHALIL: Steven Simon, do you have any thoughts about how we can redirect the debate into something that's more meaningful?

SIMON: Let's talk about the Yankees. Just kidding. Look, first, on the military trials, I think we need to refocus on the propaganda value to us, that is, the U.S., of this trial. And bearing that in mind, you know, acknowledge the fact that, in the Arab Middle East at any rate, these sorts of trials are carried out by the military. And they are seen as the worst form of pseudo-judicial regime justice and not the real thing. So when they would look at, you know, a trial conducted by the U.S. military, even though it would, as John points out, adhere to, you know, more than just a semblance of due process, they're looking at men in uniform trying other men, and they're just going to draw certain conclusions on the basis of mirror imaging. I mean, they're just going to say that's what happens here. It's no different over there. And, you know, I think we need to be attentive to these things.

The only other thing I'll add is that we do these trials pretty well, I mean, on the civilian side, and despite Judge Brinkema's issues in the Zacharias Masawi trial, you know, that did work out well enough, it seems to me the trial of the blind Sheikh, Omar Abdel-Rahman, I think, you know, worked out pretty well, as did the trial of Ramzi Yusef. So, you know, we know how to do these things. We know how to manage them. And for important influence purposes, that is, influence over foreign audiences, I think it's just a great thing that this is being done in a civilian setting. That's it.

KHALIL: Okay, well, let's open it up to the professionals. Who has questions for our experts?

OPERATOR: Okay, at this time we will open the floor for questions. If you would like to ask a question, please press the star key followed by the one key on your touchtone phone now. Questions will be taken in the order in which they are received, and if at any time you'd like to remove yourself from the questioning queue, press star-two. Once again, if you'd like to ask a question, press the star key followed by the one key.

Okay, and our first question comes from Adam Serwer from the American Prospect. Please go ahead.

QUESTIONER: Hi, Mr. Bellinger, I'm sorry. This is just a clarification. When you said that these cases would end up in the federal -- the military commissions cases would end up in the federal courts anyway, were you talking about the specific detainees being tried, or were you talking about the military commissions possibly being challenged again by civil liberties --

BELLINGER: No, no, all of -- there's an appeal system of the -- from the military commissions so that -- you know, this is something that just -- critics of doing these in federal court have not focused on -- is that although the initial trial of anyone in a military commission would be before the military judges, then there was a multiple level appellate system that went -- that fed into the federal appellate courts and then ultimately up to the Supreme Court. So while perhaps the detainee -- if KSM had been tried in Guantanamo before a military commission, although he might physically have never been brought to the United States, nonetheless, you know, over the years -- I mean, assuming he had been convicted, certainly his counsel would've appealed into the federal courts and all the way up to the Supreme Court, and that's the way the Military Commissions Act worked.

QUESTIONER: Okay, great. Thank you. That's it.

OPERATOR: Okay, thank you for your question. Our next question comes from James Kirchick from the New Republican Magazine. Please go ahead.

QUESTIONER: That's the New Republic Magazine. I was just calling to find out how do other democratic countries try terrorists?

BELLINGER: Well, Steven, you want to take a crack at your knowledge, and I'll go second?

SIMON: They don't try them in military courts. I mean, look, it depends on which questions -- on which countries you're talking about. If you look at Italy, Spain, France, Britain, Denmark, the Netherlands, Belgium and Germany, the trials are conducted in civilian courts.

BELLINGER: The only thing I will add to that -- and I agree with what Steven just said -- is, you know, when I was the legal advisor at the State Department, I was frequently asked, you know, in Europe, well, we've been able to deal with terrorism for years without using this war model in -- with the Red Army faction or the Red Brigades of the IRA. I mean, the one difference here is that all of those individuals were people who were arrested by law enforcement authorities inside those countries. And the one thing that is different here is that all --

QUESTIONER: Werent they all citizens too?

BELLINGER: Sorry?

QUESTIONER: Were they also citizens of those countries?

BELLINGER: I think they all were. And in this case, you know, all of these people were captured outside the United States, and their conduct all occurred outside the United States. Now --

QUESTIONER: Right.

BELLINGER: -- you know, as Steven will say -- now we have -- there have been cases in the United States where we have -- the long arm of justice has tracked people down, rendered them back into federal courts. And in some ways, KSM and the other four being tried are more like those people, even though they were captured outside the United States and brought back in. You know, they are more like the traditional kinds of terrorists who are tried in criminal courts.

What I would say, though, to the human rights groups who say, well, everybody ought to be tried in federal courts -- and all other democracies do that -- is the one thing that is different here is we've got a couple hundred people who were, in fact, captured by soldiers, you know, on or near the battlefield in -- who never set foot in the United States and who were captured under battlefield conditions and that really -- those people really are, one, not very good candidates to be tried in a federal court, and two, it's not at all clear that our federal courts even had jurisdiction over their activities in other countries. So, you know, there are -- that's why I think the hybrid model, although it's been criticized by some, actually does make sense here.

OPERATOR: Okay, thank you for your question. Once again, ladies and gentlemen, if you would like to ask a question, press star-one on your touchtone phone. And our next question comes from William Fisher from Inter Press News Service. Please go ahead.

QUESTIONER: Yeah, hi. Thanks for holding this briefing. Very interesting. One of the issues that I haven't heard discussed this morning is what happens to those people who are never going to be tried? And by my arithmetic, it looks like maybe 60 to 75 people who are deemed too dangerous to free, but can't be tried mostly for evidentiary reasons. What do you think the United States should do with those people?

BELLINGER: Well, it's a great question, and it's one of the ones that the Obama administration has had to essentially punt on, because in President Obama's archive speech he said at the time that they were going to have to seek a -- what he called euphemistically a prolonged detention authority, and he said that he would work with Congress to get that authority. And more recently, the Obama administration has apparently realized that they -- there's just no chance of getting any legislation from Congress that would provide a more robust and clearer framework to hold any individuals indefinitely without trial.

So what it looks like is going to happen is that yes, there will be some number of individuals, perhaps as many as 60 or 70, who would be held by the United States indefinitely without trial under the laws of war, which, of course, was the Bush administration theory, and it is very unpalatable theory to our allies. And under this very general authority the Authorization to Use Military Force Act of 2001, which was the congressional authority that -- it allowed the executive to use force against terrorists, but doesn't say the first thing about detention. So it does look like there will continue to be indefinite detention without any new legislation on which to base it. And that I think will end up being a point of contention between the Obama administration and some of our allies around the world.

QUESTIONER: Wouldn't that also be a point of contention between the Obama administration and the Supreme Court?

BELLINGER: Well, potentially so. That, I think, will certainly end up being challenged. And I would actually expect that our courts would back the executive under either legislative power or constitutional power to hold terrorists without trial. I mean, people often ask, well, what might happen if KSM were acquitted in either a military commission or a federal court? I don't believe for a moment that the Obama administration would say, okay, fine, we're going to let the guy go. It just wouldn't happen. He couldn't take it politically, and he would then have to continue to hold KSM, just as he's holding these other individuals under the laws of war, and if that were, then, challenged in the courts, I actually would be pretty confident that the courts would uphold that authority. But we're looking at a lot of litigation on all these issues for a long, long, long time to come.

QUESTIONER: Right. Thank you.

OPERATOR: Okay, thank you for your question. And at this time, Ms. Khalil, we have no further questions, so I will turn it back over to you.

KHALIL: Well, if there's no further questions, I would just let either Steve or John make any final points that they feel that they haven't made.

BELLINGER: Nothing from my end. I've talked a lot already.

SIMON: Same here.

KHALIL: Well, thank you very, very much for your expertise and all of your excellent points on these issues, and they've helped clarify a lot of things, not just with this trial, but the larger issues of detainees and terrorism prosecutions. So thank you both very much.

BELLINGER: Thanks very much.

SIMON: Thank you.

BELLINGER: Bye bye.

KHALIL: Bye.

SIMON: Bye.

OPERATOR: This now concludes today's teleconference. You may disconnect.

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