Notre Dame Expert: Standing by the rule of law in terrorism trials

Author: Susan Guibert

Mary Ellen O'Connell

As President Obama considers a recommendation to reverse the decision to prosecute Khalid Sheikh Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, in a civilian court and instead try him in a military tribunal, legal questions from both parties continue to cloud the issue.

University of Notre Dame legal expert Mary Ellen O’Connell believes that the original ruling by Attorney General Eric H. Holder, Jr. was legally sound.

“President Obama and Attorney General Holder made a politically tough, but legally correct, decision when they announced that Khalid Sheik Mohammed and others would be tried in civilian courts for the crime of terrorism,” says O’Connell, who specializes in international law, international legal regulation and use of force and conflict resolution.

“Now it appears that the president is bowing to political pressure and reversing the decision. If he does so, he puts the United States on the wrong side of the law. Deciding on proper courts, proper procedure, and proper charges rests fundamentally on legal principles—not political ones. The law requires that the president make the right decision, popular or not,” says O’Connell.

“I have full confidence in the American criminal justice system to be able to hold fair trials of terrorism suspects without endangering the public. If the president does not have this confidence, then his alternative is to return Khalid Sheik Mohammed to Pakistan. The Pakistanis are holding numerous terrorism suspects and trying them in regular courts.”

According to O’Connell, only members of the armed forces and combatants captured on the battlefield may be tried before military commissions, if necessary. Mohammed fits neither of these categories.

The Robert and Marion Short Professor of Law at Notre Dame, O’Connell is vice president of the Society of International Law and is the author of “The Power and Purpose of International Law.”

More on O’Connell, including a videotaped interview on the protection of human rights and a high-res photo, is available here

Contact: Professor O’Connell at 574-631-7953 or MaryEllenOConnell@nd.edu