Last week, Attorney General Eric Holder announced that five men held in the prison camp at Guantanamo Bay, Cuba, would be moved to the United States in preparation for upcoming criminal trials in New York City. Included in this group is Khalid Sheikh Mohammed, who has claimed to be among the masterminds of the Sept. 11, 2001 terrorist attacks on Manhattan and Washington, D.C.
Predictably, this has led to roars of outrage from the political right (predictably, because the move was made by the Obama Justice Department, and anything done by the Obama Justice Department elicits roars of outrage from the right). Their criticism, when it is intelligible, falls into three categories. First, there is the concern that bringing a “known terrorist” to trial in New York City (or, presumably, anywhere on U.S. soil) will make that location a target for terrorist attack. Second, some conservatives are disgusted by the idea that a foreign national is being accorded the right to civilian trial, when he is actually an “enemy combatant.” Third – and I’ve sat up over beers at a bonfire recently discussing the finer points of this one – many are worried that the trial will be a “circus” that turns into an excoriation and “embarrassment” of the United States’ intelligence community, specifically, the CIA.
To address these in order:
No additional security threat is posed by holding KSM’s trial in New York.
It is not uncommon to hear conservatives cite the fact that no terrorist attacks have struck the U.S. since Sept. 11, 2001 as evidence for the effectiveness of Bush-era security policies (or, strangely, as justification for the war in Iraq). This isn’t too surprising – it’s human nature to tend to assume causation when only correlation exists. However, what’s odd is that the same people who would so eagerly assume that America’s security posture is so improved would suddenly become concerned over nascent terrorist cells in their own backyards. Are we to imagine that al Qaeda has managed to establish “sleeper agents” in the United States since March, 2003 (when KSM was reportedly captured), whose sole task is to lie in wait until that day when operatives would be tried in U.S. courts? If we can imagine that, we can imagine anything. Perhaps the terrorists have built a Death Star and are waiting until 2012 to shoot a gigantic laser at Los Angeles from high orbit. Maybe they’ve used the intervening five years to dig tunnels from Afghanistan to Iowa. I don’t know that they haven’t, so it must be possible – probable, even.
In any case, several terror suspects have already been tried in New York courts, and U.S. prisons already house 355 convicted terrorists, 216 of them foreign nationals, and one of them being Zacarias Moussaoui, another 9/11 conspirator. All of them were brought to trial before being locked up. If any of their hearings were ever attacked (or credibly threatened with attack), I’ve been unable to discover such. If there is any threat to security, it will be negligible.
Because of the Bush administration’s insistence on denying terror detainees “Prisoner of War” status, civilian trials are the only option
The means by which many of the eventual detainees at Guantanamo’s Camp X-Ray came to the prison created a legal miasma that we are still working on escaping. At the time, early on in the war in Afghanistan, the Bush Justice Department decided that “War on Terror” detainees could not be regarded as prisoners of war. This was done primarily to avoid the requirements set by the Geneva Conventions on how enemy POWs could be legally treated. This eliminated one of two categories of criminal into which terror suspects could fall – the other is “civilian.”
Civilian courts, therefore, are the proper venue for their trials. However, there is still the argument that these ought to wait until “cessation of hostilities.” Again, this is war crimes language, and for it to apply, one would have had to understand the detainees to be prisoners of war – which, of course, we have been unwilling to do. In any event, the “war” we are currently engaged in isn’t a normal kind of war. Our presences in Afghanistan and Iraq have become protracted peacekeeping/nation-building/police actions, and only recently have we seen even a glimpse of an endpoint in either of them. The “War on Terror” (now a defunct term, happily) has more in common in terms of unbounded timeline with the “War on Drugs” than with World War II. Should we similarly hold illegal narcotics suspects until a “cessation of hostilities”?
What civilian trials for terror suspects will allow is conviction and imprisonment of terrorists. Although the notion of putting terrorists in prison here has frightened people (including the craven Sen. Harry Reid), life sentences for convicted terrorists will improve our security by locking up actual security threats and closing down what is regarded by the rest of the world as a state-sanctioned gulag at Guantanamo Bay. Win-win.
Potential “embarrassment” of a government agency is not a good reason for us to break our own rules
The CIA’s list of crimes is long and well-documented. However, there is some concern afoot that allowing a trial for KSM to move forward will mean publicizing evidence of CIA wrongdoing, and that this must be avoided in order to allow the agency to maintain its effectiveness. First of all, given its recent track record, there’s not a whole lot of “effectiveness” to maintain over at Langley; although one hopes that recent and pending reforms will improve this. In any case, the agency is more or less immune from embarrassment – miles of pages have been printed detailing its complicity in some of the worst offenses of the late 20th century, and yet it thunders on, seemingly unimpeded by, to take just one example, its admission of complicity in General Augusto Pinochet’s systematic human-rights abuses in Chile.
A variant of this “argument” is to claim that a trial – and specifically, the discovery process – will ultimately tip the CIA’s hand to “our enemies” and allow them to form a better picture of the limits on U.S. intelligence-gathering. This is a disingenuous way of saying, “I know the CIA does illegal stuff, but I don’t want to know about it and I don’t want them to stop.”
Why a trial should make conservatives happy
When the trial is over, Khalid Sheikh Mohammed will face sentencing from a judge who will be urged by the Obama Justice Department’s prosecutor to assign the death penalty. Even if the sentence is not execution, it will be a symbolically high number of consecutive life sentences, which solves the problem conservatives have been scratching their heads over for several years now: how do we keep these guys in prison forever? Using our own criminal justice system, that’s how. Trials, at their heart, are the way in which we establish guilt or innocence, and it takes only a shred of faith in this system to be able to comfortably assume that any New York jury will find the defendant guilty in this case. Afterward, we can all rest a little easier knowing that we went through the process of legally establishing the guilt of this monster and put him away legally, which fixes our current problem: that we are so unconvinced of the validity of our case against Khalid Sheikh Mohammed that we are compelled to keep him locked up “out of sight, out of mind.”
We’ll have done the right thing, which is supposed to be what separates us – a “freedom-loving people,” as we’re so fond of saying – from them.