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02.12.10

New York Needs a Terror Trial

Lost in the discussion of the costs and security risks of trying a 9/11 mastermind in New York is the potential benefit to its still-grieving residents. Karen Greenberg on how KSM could be our Adolf Eichmann trial.

As New Yorkers debate whether to host the trial of 9/11 mastermind Khalid Sheikh Mohammed, they might do well to reflect on another trial—that of Adolf Eichmann in Jerusalem. The decision to try Eichmann in Jerusalem offers valuable insights into the potential benefits of trying Mohammed in New York.

Politicians who are determined to move Mohammed's trial from New York City cite security issues, a $200 million price tag, the disruption of downtown business, and a reluctance to upset the victims of the 9/11 attacks. But lost in the controversy is a fundamental purpose of the trial: to heal victims and survivors by presenting them with a show of justice against those who harmed them.

Holding Mohammed's trial in New York would place the suspect directly before those he most harmed. To hold the prosecution elsewhere would deny New Yorkers direct access.

While the magnitude of Eichmann's crimes differs exponentially from those of the 9/11 plotter, the similarities between the Mohammed and Eichmann cases are striking. Both served as proxies for the person who created the ideology and movement that led to the killings.

The 1961 proceedings against the "architect of the Holocaust" were embroiled in controversy from the start, beginning with the choice of location and extending to issues of jurisprudence and morality. But the Eichmann trial allowed the emerging state of Israel to demonstrate that it could apply the rule of law without vengeance.

In the words of Hannah Arendt, the trial offered escape from "dark times." In the United States, the Mohammed trial could help restore the rule of law and transparency to a system that, during the past decade, has been forced to confront its own dark times.

The choice of location for the Eichmann trial was fraught with political repercussions. The Nazi was kidnapped from Argentina and brought to trial in Jerusalem, though many—including Telford Taylor, the chief prosecutor at the Nuremberg trials—argued that Eichmann should be tried in Germany, where he committed his crimes. The Israeli government had a different view and held the trial in Jerusalem, among the survivors. At the time, the trial generated an outpouring of emotion. Some felt it would reawaken, as one survivor wrote, "all the feelings of horror that are churning in our hearts."

Holding Mohammed's trial in New York would similarly place the suspect directly before those he most harmed—9/11 families and New Yorkers, who live with the memory of the attack. To hold the prosecution elsewhere would deny New Yorkers direct access to the trial.

The Eichmann trial was as an opportunity to retell the story of the Holocaust to Israelis—and to the world. So, too, the Mohammed trial, moving beyond the 9/11 Commission Report, will retell the story of 9/11 by presenting the most comprehensive narrative to date about the means, methods, alliances, and ideological breadth of the crimes. The complexity of the tragedy will be exposed, including weaknesses in the U.S. government's national-security structure before the attack.

As with the Eichmann trial, the legal details of the Mohammed trial will be challenging. Matters such as the rules of the courtroom, public access to the trial, and the role of the victims' families will likely plague the proceedings. At the Eichmann trial, concentration camp survivors supplied heartrending testimony. The role of the 9/11 victims and survivors in the upcoming trial is not yet known. Surely one of the prickliest issues likely to emerge will be Attorney General Eric Holder's plan to seek the death penalty in a state that suspended the punishment in 2004.

To be sure, the Eichmann trial should not be the model for the Mohammed trial. The Eichmann trial—as the Mohammed trial might be—was a national encounter with emotion, in which the courtroom often was overtaken by political passions rather than judicial restraint. Nevertheless, the state of Israel did not shy from overwhelming political and administrative challenges.

The Israeli government, unpopular with many Allies for mounting the trial, kept its focus on its society's need to confront the past as a path to the future. The Israeli decision to mount a civilian trial, and to do so among its survivors, despite controversy, enabled survivors—and Jews generally—to begin healing.

Perhaps the lesson for New Yorkers, and Americans, is that sometimes a high price must be paid and burdens and inconveniences borne if we are to put to rest all the feelings of horror that are still churning in our hearts.

Karen Greenberg, executive director of the Center on Law and Security at New York University, is author of The Least Worst Place: Guantanamo's First 100 Days.