CBS News Legal Analyst Tries to Tamp Down 'Hysteria' Over Terror Trials

November 14th, 2009 9:35 PM

CBS News legal analyst Andrew Cohen is a long-time critic of the Bush administration, enhanced interrogation techniques, military tribunals, Gitmo, and many aspects of the government's prosecution of the war on terror. For general background, see Cohen's CBS News blog "Court Watch." It is, therefore, no surprise at all to see Cohen defending the propriety of the upcoming New York City terror trials. 

In his latest article in Washington Post ("A terrorism trial's myths"), Cohen attempts to counter some of the [very legitimate] concerns of those opposed to the idea of criminal trials for the 9/11 terrorists.

Cohen writes:

A Mohammed trial for Sept. 11 crimes -- the case might actually be styled United States v. Mohammed -- could be one of the biggest legal landmarks in American history. It's not surprising that bringing one of the "faces of terror" to within blocks of Ground Zero would generate a lot of fear, trepidation and political hysteria. So let's try to separate sizzle from steak.

Cohen then violently points to "six myths about Mohammed and his trial that ought to be destroyed." Cohen spins, justifies, and apologizes, but doesn't quite destroy the six myths he lists. Taking them in order ...

Cohen myth #1: Mohammed's lawyers are going to rely on the fact that he was waterboarded to get his case dismissed. Cohen boldly states this "ain't gonna happen," explaining that "it's likely that the government's post-capture treatment of Mohammed will be a factor in the trial. But it won't determine the outcome."

Cohen here admittedly smashes myth #1, but only because of sleight of hand in framing the argument. The concern about waterboarding, and enhanced interrogation techniques generally, is they will be described in graphic detail during the trial (not that they will determine the outcome of the trial). The public disclosure of sources, procedures, and the identity of classified agents is what's at stake here, which Cohen does not address.

Cohen myth #2: Mohammed's judge won't be able to find an impartial jury. Cohen's explanation here is borderline comical. He states that very few juries come to court without preconceived notions about publicized cases, but as long as these poisoned jurors will promise to fairly evaluate the evidence, then everything is peachy-keen.

It seems highly unlikely that KSM will find an impartial jury of his peers in Manhattan. A change of venue might change the playing field, but then that's a different discussion entirely.

Cohen myth #3: Trying Mohammed in New York will significantly raise the risk of another terrorist attack there. Cohen counters this myth by writing that "[n]o one can determine how big that increased risk would be."

In knocking down this myth, Cohen concedes that there is a heightened risk. His only squabble is how big that risk will be, which admittedly nobody can know. Apparently here, Cohen is trying to destroy the word "significantly," and he hasn't done it very well.

Cohen myth #4: The transfer of Mohammed to a federal civilian court is a concession of defeat by the government and a soft-on-terror approach to suspects.

This, of course, is a political point rather than a legal one. And Cohen's main point is that "a civilian trial is the best chance of ensuring conviction and sentencing." This is strictly Cohen's opinion, but in making it he conveniently overlooks the decision by the Obama administration to have other Gitmo detainees proceed with miliary tribunals. What about those guys, Mr. Cohen?

Cohen myth #5: Mohammed will be acquitted on some technicality endorsed by a federal judge. Cohen states that this won't happen, and he is right on this point. But Cohen also argues: "even if Mohammed is somehow acquitted, which isn't going to happen, the feds will then immediately pick him up and put him back in the military brig." I agree with this second point too, but won't that "second arrest" be precisely the same type of detention we have right now? And if KSM's indefinite detention is inevitable, why have a trial at all?

Cohen myth #6: Mohammed will turn his trial into political theater. Cohen's answer is: "Yes, he will try. But he will mostly fail."

Wrong. The trial will be political theater regardless of what KSM does. And KSM, and the other terrorist defendants, will do whatever they can to cause chaos. Keep in mind that KSM previously confessed and asked to be executed. What does he have to lose? At the very least, he can take the stand in his own defense - and who knows what will be said at that point (with MSNBC copiously taking notes).


Cohen takes his best shot, and maybe a few impressionable WaPo readers will be convinced, but most of the concern surrounding these terror trials still remains.