ATTORNEY General Eric Holder has called his decision to bring professed 9/11 mastermind Khalid Sheikh Mohammed and his accomplices to the U.S. for a civilian trial the toughest he's ever had to make.

But due to rising concerns about cost and the security implications of holding a civilian trial in New York City, the Justice Department is now considering a range of other venues, including Pennsylvania. But rather than seek out a new jurisdiction for the trial, Holder should seize this opportunity to reverse his original misguided decision.

The 9/11 attacks that claimed the lives of 2,973 Americans were not just a "violation of federal law" and "extraordinary crimes," to use Holder's words. These heinous actions were an act of war against the United States perpetrated by individuals who should be tried in military courts as war criminals.

Many rightfully argue that a civilian trial will provide Mohammed and his fellow plotters with a soapbox from which to espouse their hatred of America. Others cite costs ranging in the hundreds of millions of dollars to provide adequate security.

Supporters of the administration's approach counter that civilian trials for terrorists are not without precedent and note that the perpetrators of the 1993 World Trade Center bombing were tried that way.

A fair point. But those trials also illustrate the ramifications of trying war criminals as ordinary felons - the very real threat of exposing intelligence-gathering methods and sources.

For example, during the trial of Ramzi Yousef, mastermind of the '93 bombing, seemingly innocuous testimony about a cell phone tipped off terrorists that their communications network had been compromised. They promptly shut it down and a potentially valuable source of intelligence was lost. Let's not repeat a mistake like that.

Holder's own decision in the USS Cole case to use military commissions to try the bombers underscores his confidence in their ability to achieve fair and reasonable verdicts. What he fails to deliver is a compelling case for why they aren't appropriate for Mohammed and the other conspirators in the 9/11 attacks.

The inconsistency of the Holder rationale is further underscored by his dual calculation. He states, "I would not have authorized the bringing of these prosecutions unless I thought . . . in the outcome we would ultimately be successful."

Yet Justice officials have stated that in the event of a criminal acquittal, Mohammed would be locked up indefinitely as a combatant under the laws of war. It is a heads-I-win, tails-you-lose calculation. With such statements already on the record, the international community we are attempting to appease will see the process as a sham.

What few realize is that Holder's boast, particularly when coupled with the president's claim that Mohammed will be convicted and given the death penalty, directly violates the rules of the New York federal court. These rules presume that a government agent has likely interfered with a fair trial when he publicly offers "any opinion of the accused's guilt or innocence."

Remember, Mohammed and his fellow conspirators are now being afforded constitutional rights. Few would be surprised if one of the first actions of his defense team is to file a motion to dismiss the case on the bias of prejudicial pretrial publicity.

Such a motion will certainly not get Mohammed and his fellow plotters off. But it drives home one of the more subtle but provocative points about this whole process: The pressure is going to be enormous on the federal trial and appellate judges to not be the ones who let Mohammed walk on a technicality.

As prosecutors, we have a saying: "Bad cases make bad law."

 

WHERE DO you suppress evidence because the defendant didn't know he had a right to a lawyer? Because his statements were coerced? Because he was put in solitary?

Reams of evidence may be thrown overboard. Maybe it isn't needed. But at some point, it's predictable that a judge will have to stretch his reasoning to sustain a ruling. The effect will be to set a precedent that will be cited in subsequent, entirely unrelated criminal cases in American courts.

For civil libertarians, this is a nightmare: the unintended consequence of a knee-jerk condemnation of the military tribunal process.

Patrick Meehan is the former U.S. attorney for the Eastern District of Pennsylvania and a Republican candidate for Congress in Pennsylvania's 7th District.