Rudy Giuliani vs. the Federal Courts

When last we heard from him, Rudy Giuliani had spent $59 million to win one delegate to the 2008 Republican National Convention. Now he's disrespecting the career attorneys at his old stomping ground, the U.S. Department of Justice, and setting new records in the competitive sport of scaremongering. (Click here to follow Jonathan Alter).

The decision of Attorney General Eric Holder (not President Obama) to prosecute Khalid Sheikh Mohammed (KSM), the mastermind of the attacks of 9/11, in New York City has kicked off a predictable political flap. Republicans smell political advantage—"The Obama administration is finished. The Democratic Party is finished," exulted Mike Huckabee—and even some Democrats, such as embattled New York Gov. David Paterson, are running for cover. (Article continues after video...)

But the New York officials who count—Mayor Michael Bloomberg, Police Commissioner Ray Kelly, and Sen. Chuck Schumer—came fully on board with Holder's decision once they were reassured that the city would be reimbursed for the extra security. They have no doubt that New York can handle the trial, which is at least a year away.

As Giuliani knows, there are practical prosecutorial reasons to proceed against the biggest criminal in the history of the United States in federal court. Unlike some other detainees, KSM has confessed so many times outside of his interrogations that prosecutors won’t need to introduce evidence obtained through waterboarding. For that reason, efforts by the defense to make the trial about the abuses of the U.S. government will surely fail. And because federal courts have ample precedent in handling terrorism cases, the case will proceed much faster than it would in a military tribunal: by order of the Supreme Court, military justice is subject to extensive judicial review. After convictions in military courts, the appeals process can drag on, because everything about those tribunals is new and therefore subjected to endless adjudication.

As a longtime federal prosecutor in the Southern District of New York, the same jurisdiction in which KSM will be tried, Giuliani knows this. Were he still in his old job, a Justice Department official told me, Giuliani would no doubt be bombarding Washington with memos about how the swiftest and surest way to win the case would be to let the Southern District handle it. Just two years ago, when Zacarias Moussaoui, the so-called 20th hijacker, was convicted in federal court in Alexandria, Va., Giuliani said that "it shows that we can give people a fair trial, we are exactly what we say we are."

Now he’s taking a different line. But in doing so, he's also being dishonest about federal prosecution.

When Neal Cavuto of Fox raised the possibility of the terrorist who plotted 9/11 walking the streets of Manhattan "eating pretzels" as a free man, Giuliani said, "I don't know what you do if he gets acquitted. I mean, presumably then the government would say, 'Oh, gee, but actually he's a terrorist that we can hold anyway.' And wouldn't let him out. And try to send him to another country. If it's a 50-50 case, he's supposed to get acquitted. If there are mistakes that have been made in the processing of this case by the government, it is conceivable that evidence will be suppressed."

The former mayor knows perfectly well that there is zero possibility of KSM being freed to eat pretzels. And he knows that should the government have the misfortune to draw a jury that acquits (though none has in terrorism cases) or a judge who, in a thousand-to-one shot, throws the case out, prosecutors would immediately file fresh charges for a new trial. That might mean that it takes a while longer to reach a conviction, though it likely wouldn't take as long as the six and a half years the Bush administration has spent trying and failing to bring KSM to justice.

And does Giuliani really think top-notch prosecutors would bring a "50-50" case? He knows better, which is why he eventually reached for an argument outside the courtroom: "We're kind of granting his wish to be brought to New York. Since when are we in the business of granting the wishes of terrorists?"

So does that mean that if, like other terrorists, KSM "wishes" to be executed, we should deny his wish to be a martyr and give him life imprisonment instead? Besides, the truest wish of terrorists is that they be treated as soldiers of jihad, not criminal killers of the innocent. Trying them in civilian courts strips them of their military pretensions.

Rudy Giuliani served New York well in the days immediately following 9/11. He's entitled to his opinion about the appropriateness of trying terrorists here, but he shouldn't scare and mislead people about the criminal-justice system to which he devoted so much of his career.

Jonathan Alter is also the author of The Defining Moment: FDR's Hundred Days and the Triumph of Hope.