Argument: KSM will almost certainly be convicted in NY civilian courts
Steven Simon. "Why We Should Put Jihad on Trial." New York Times. November 17th, 2009: "Others complain that Mr. Mohammed might take advantage of quirks of the criminal justice system and go free. That’s highly unlikely. First, he has already confessed to the crime; and, given the zero acquittal rate for terrorists in New York previously, any anxiety about a “not guilty” verdict seems unwarranted."
Dan McLaughlin. "Why Terrorists Don't Deserve A Court Date." CBS. November 18, 2009: "Since Holder's career may be riding on the outcome of Mohammed's trial, a not-guilty verdict doesn't sound very likely. Holder has said he has enough evidence to win a conviction, even though Mohammed is known to have been waterboarded during interrogations. Experts like Sen. Patrick Leahy, D-Vt., a former prosecutor who heads the Armed Services Committee, agree that the government had enough evidence to prosecute Mohammed before waterboarding took place."
Stuart Taylor. "No Need To Fear A Manhattan Terrorist Trial." National Journal. November 21, 2009: "in the 9/11 prosecution -- in which the government's evidence is so strong that the defendants will almost certainly be convicted and sentenced to death or to life in prison without parole -- the advantages of a civilian trial seem to outweigh the risks."
[...] The chance of an acquittal seems infinitesimal. Yes, a few juries have done crazy things. But to have a chance of emulating O.J. Simpson's success at playing the race card, for example, Mohammed would need a jury full of jihadist sympathizers. That's a statistical impossibility. In any event, any defendant acquitted of war crimes could still lawfully -- if awkwardly -- be held as an enemy combatant.
Crazy judges. Also apparently infinitesimal is the chance that the courts would dismiss the case on technical grounds, such as a violation of the Speedy Trial Act or prejudicial pretrial publicity. Yes, there are eccentric judges. But they get reversed on appeal. As for pretrial publicity, the law requires only that jurors credibly promise to be guided by the evidence presented in court, not that they be comatose."
Josh Marshall. "Why is it a problem?" TPM. November 16, 2009: "Let's start with the idea that civilian trials have too many safeguards and create too big a risk these guys will go free. This does not hold up to any scrutiny for two reasons. First, remember all those high-profile terror prosecutions where the defendants went free? Right, me neither. It just does not happen. The fact is that federal judges are extremely deferential to the government in terror prosecutions. And national security law already gives the government the ability to do lots of things the government would never be allowed to do in a conventional civilian trial. (People who really think this is an issue seem to base their understanding of federal criminal procedure on watching too many Dirty Harry movies, which, as it happens, I'm actually a big fan of. But remember, they're movies.) KSM is not going to be able to depose or cross-examine CIA Director Leon Panetta or President Bush or Vice President Cheney or anyone else.
The possibility that a judge would suppress evidence obtained through torture is a real one. But Eric Holder made clear he and his prosecutors believe they have more than enough untainted evidence to obtain convictions. So that should not be an issue.
Finally, even in the extremely unlikely case that any of the five were acquitted of these charges, the government has a hundred other things it can charge them with. Indeed, the government could as easily turn them over to military commissions or indefinite detention post-acquittal as it can do those things with them now. That may not make civil libertarians happy. But it is the nail in the coffin of any suggestions that these guys are going to be walking out of the federal courthouse in lower Manhattan saying they're headed to Disneyland. It's simply not going to happen.
(The best argument against what I've argued here is probably the case of El Sayyid Nosair, the murderer of Jewish extremist leader Meir Kahane, who received a partial acquittal when he was tried in 1991. Here I would say that the case came prior to modern counter-terrorism law in the United States, which I'd date to the first World Trade Center bombing in 1993. And the Nosair example actually proves my larger point since a subsequent terrorism conspiracy trial got Nosair a life without parole plus fifteen year sentence, which he is now serving at the SuperMax facility in Florence, Colorado.)
We can imagine a different set of facts, where all the most damning evidence was obtained through torture, and acquittal seemed at all a reasonable possibility. In that case there might be a real question as to whether it was worth taking the risk when military commissions which have been used in the past are available. But this 'risk' simply doesn't appear to exist so you do not even need to get to the constitutional or deeper rule-of-law questions."