The inherent challenge in trying high-profile terrorism cases is not made any better by the secrecy of a military commission
As Khalid Sheikh Mohammed and four other September 11 suspects face a military commission hearing at Guantanamo Bay on Saturday, the US finds itself on a collision course between its own high-minded ideals of justice and a baser – but undeniably powerful – desire for vengeance. While liberals worry that the Obama administration is betraying its own earlier promises and endorsing a shamefully compromised form of trial, conservatives and law-and-order hawks are less interested in due process than in seeing the men executed by the fastest means possible.
The truth, though, is that high-profile cases involving terrorism or other acts of political violence are notoriously difficult to try under any circumstances – either by military commission or in the civilian courts. Whether or not lawyers and judges brandish the constitution and tout the benefits of an open, democratic system, emotions invariably run high, public opinion and the media invariably bay for blood, and defense lawyers get accused of apologizing for the heinous acts with which their clients stand charged.
Liberals point, correctly, to the ignominious history of previous military commissions in the US, which condemned an innocent woman, Mary Surratt, to death in the wake of the assassination of President Lincoln and brought about the execution of six Germans accused of acting as Nazi saboteurs in 1942, even though they had planned little and seemed capable of less. Then, as now, the military tribunals were criticized for their lack of openness, their predisposition to find defendants guilty, and rules of evidence that admitted testimony obtained under duress or torture.
But civilian courts have their own problems. When Timothy McVeigh was tried for the Oklahoma City bombing 15 years ago, the government promised an unprecedented degree of openness, all the better to get to the truth. But prosecutors ultimately mounted a case that played heavily on the jury's emotions and emphasized, over and over, the horror and suffering caused by a bomb that killed 168 people, including 19 babies and toddlers, inside the Alfred P Murrah federal building. The reason: they felt they had to obtain the maximum sentence, no matter what, and that required papering over some gaping holes in their case.
"If you convicted him but did not get the death penalty, that would not be okay," prosecutor Scott Mendeloff told me. "A lot of the victims were pinning some sense of resolution on us getting justice for this guy. We couldn't lose this... It was like a pressure cooker."
While McVeigh's guilt is not in doubt – he later confessed everything in the book American Terrorist – the government had no coherent explanation of how McVeigh learned to build such a devastating device, no conclusive evidence that McVeigh had rented the Ryder moving truck used to deliver it, and no eyewitnesses that the prosecution was willing to call who could place McVeigh in Oklahoma City on the morning the bomb went off.
Mendeloff and his colleagues relied instead on wrenching pictures of dead babies and the tear-filled testimony of their loved ones. And it worked. The problem, of course, is that it is not the job of the courts to run on emotion, but rather to examine the hard evidence and see how far it really leads. Such serene detachment from the crime is rare in terrorism trials, not because prosecutors are themselves over-emotional, but because they become reluctant to answer some of the hard questions that researchers interested in unearthing the full story invariably come back to. Has the government really made its case, or is it cutting corners? Are the defendants really the biggest culprits, or just the ones the government managed to find and arrest? Are there other conspirators still out there?
The Oklahoma City trials – McVeigh's, and the two faced by his old Army buddy Terry Nichols in federal and state court – are an instructive counterpoint to the debate about KhalId Sheikh Mohammed, because they embraced, at least in theory, all the ideals of full disclosure and due process that critics of the Guantanamo court now yearn for. The government promised to give the defence unprecedented access to its case files, and the two sides cut a deal on disclosure going well beyond the Supreme Court's 1963 Brady v Maryland ruling.
From the beginning, though, the prosecution dragged its feet, especially when it came to material pointing to possible co-conspirators beyond McVeigh and Nichols. The defense counted at least 16 separate occasions when the government claimed to have disclosed everything, only to have that claim countermanded by an order from Judge Richard P Matsch to produce something that had in fact been withheld. "It's about the worst I've ever seen", said Rob Nigh, the number two on McVeigh's trial team.
Judge Matsch himself ended up complaining about "a number of questions unanswered" and urged the government to keep investigating after McVeigh and Nichols were convicted. He was largely ignored.
Behind the scenes, the prosecution team had furious internal disputes about other possible conspirators, the extent of Nichols's guilt, and the wisdom of calling certain witnesses who might, under other circumstances, have been pursued as suspects instead. None of this was made public at the time.
Ultimately, it was incumbent on the defense teams to conduct their own investigations and develop a fuller picture. Broadly speaking, the McVeigh team did a poor job of this, while the Nichols team did much better in unearthing some extraordinary material going well beyond the FBI's efforts. It was partly for this reason that Nichols was found guilty of involuntary manslaughter, not murder, and escaped the death penalty.
Still, only slivers of the vivid new material could be introduced in court, because the trials were ultimately about determining the guilt or innocence of the defendants, not the shortcomings of the investigation as a whole. That's the reality of all trials, not just terrorism cases. The full story almost always remains elusive.
None of this should detract from the clear differences between civilian and military courts. An adept defense team in a civilian trial undoubtedly has more leeway to make the challenges and do the digging necessary to unearth a more complete picture – an important public service, regardless of the verdict. And the full documentary record in civilian trials is far more likely to become public, as it now has in the Oklahoma City bombing case. So there is an opportunity, however belated, for full scrutiny.
Ultimately, the debate over KSM's trial is not so much wrong as missing the bigger picture. The question here is not just whether his rights as a defendant are being sufficiently upheld; it is also about getting to the truth. A secretive process with less than rigorous standards of proof is not conducive to establishing that truth or disclosing it. It's a problem in all high-profile cases, whatever the rules of the game. And the best corrective is constant public pressure. This is not just about President Obama placating his Republican adversaries in Congress, or going back on his campaign pledges; it's about having the information to be able to learn from the past and prevent future September 11. Everyone should be able to agree on the wisdom of that.
• Andrew Gumbel is co-author of the just-published Oklahoma City: What The Investigation Missed - And Why It Still Matters (HarperCollins)