The Real Trial Of The Century


Marc Ambinder at The Atlantic:

Here’s what the Attorney General isn’t doing. He’s not following public opinion, which generally opposes conducting any sort of 9/11 terrorist trial in the United States. He’s not following perceived political wisdom, in that the administration is not providing cover for Democrats who are afraid of Republican remonstrations on terrorism. He is not appeasing special interest groups, the bulk of whom — the ACLU being an example — oppose quite vociferously the prospect of any new military commissions.

If this is politics, it’s really dumb politics. And that’s why it’s probably not politics. Occam’s razor applies. Obama and Holder are sincerely — perhaps naively, but that’s something we won’t know for a while — attempting to change the way the American people and the world think about counterterrorism. They want to change the narrative from a “strength/weakness” metaphor to an “example/rule of law” metaphor. This sounds a little PoMo, but it’s the mark of a president who, on this issue in particular, does not believe that the old ways of thinking make America any safer. Certainly, they don’t contribute to a national security politics of consensus.

This will be a hard sell. The chief GOP arguments — that terrorists don’t deserve the same rights as Americans — even common criminals — and that the 9/11 terrorists are inherently of a different and more nefarious breed of species than people who break the law — are generally supported by Americans.

Andy McCarthy at NRO:

Let’s take stock of where we are at this point. KSM and his confederates wanted to plead guilty and have their martyrs’ execution last December, when they were being handled by military commission. As I said at the time, we could and should have accommodated them. The Obama administration could still accommodate them. After all, the president has not pulled the plug on all military commissions: Holder is going to announce at least one commission trial (for Nashiri, the Cole bomber) today.

Moreover, KSM has no defense. He was under American indictment for terrorism for years before there ever was a 9/11, and he can’t help himself but brag about the atrocities he and his fellow barbarians have carried out.

So: We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda’s case against America. Since that will be their “defense,” the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see — in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America’s defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.

Michelle Malkin:

See here for a petition to the president.

If this White House thought Tea Party activists were an “angry mob,” wait until they see the backlash from 9/11 family members and their supporters nationwide. We’re not going to sit down and shut up about the reckless, security-undermining Obama 9/10 agenda and conflict-of-interest-ridden AG Eric Holder.

Call them out.

Glenn Greenwald:

Obama is certain to be bombarded with all sorts of right-wing idiocy and fear-mongering as a result of his decision to bring 9/11 defendants into the U.S. in order to give them trials.  Doing that is clearly the right thing to do:  trials and due process is how civilized countries treat people who are accused of engaging in terrorism.  Given how Democrats and Republicans will talk about this decision, media coverage will almost certainly fixate on the narrow question of whether (a) 9/11 defendants should be given trials in the U.S.  or (b) we’re all now Endangered because these Omnipotent Monsters are being brought into our communities (in handcuffs, shackles, and maximum-security prisons).  The AP article already includes this preview of the inane attacks on Obama certain to come:

It is also a major legal and political test of Obama’s overall approach to terrorism. If the case suffers legal setbacks, the administration will face second-guessing from those who never wanted it in a civilian courtroom. And if lawmakers get upset about notorious terrorists being brought to their home regions, they may fight back against other parts of Obama’s agenda.

In a just-posted New York Times article, Charlie Savage also notes that bringing an accused terrorist of Mohammed’s notoriety to the U.S. for trial is unprecedented and likely to provoke intense political controversy.  In that “debate,” I’m squarely on Obama’s side, as is any person who believes in the most basic Constitutional precepts.

But the more consequential impact of Obama’s decision is likely to be overlooked:  we’re now formally creating a multi-tiered justice system for accused Muslim terrorists where they only get the level of due process consistent with the State’s certainty that it will win.  Mohammed gets a real trial because he confessed and we’re thus certain we can win in court; since we’re less certain about al-Nashiri, he’ll be denied a trial and will only get a military commission; others will be denied any process entirely and imprisoned indefinitely.  The outcome is pre-determined and the process then shaped to assure it ahead of time, thus perfectly adhering to this exchange from Chapter 12 of Alice in Wonderland


Rahim al-Nashiri will be tried in a military commission–though it’s not clear where he’ll be tried.

The AP makes no mention of where Abu Zubaydah will be tried. The AP also made no mention of Mohammed al-Qahtani, who is alleged to be the 20th 9/11 hijacker.

While I’m glad a trial of KSM will demonstrate that our criminal system can deal with the worst of the worst, it’s the treatment of the others–al-Nashiri, Abu Zubaydah, and al-Qahtani–that will truly demonstrate the strength or failures of our legal system. KSM, after all, has said he wants to be executed; KSM freely boasts of his role in 9/11. That’ll make it easier to avoid discussing his brutal torture.

But what do you do with someone like Abu Zubaydah, who is probably not fit for trial, whose diaries (which the government still won’t give him) would prove he was tortured, and who wasn’t who they said he was when they waterboarded him 83 times?

John Hinderaker at Powerline:

Later this morning, Eric Holder will announce that five top terrorists, including Khalid Sheikh Mohammed, will be prosecuted and tried in federal court in New York City. This is, of course, the logical consequence of treating terrorist attacks as crimes rather than as asymmetrical warfare.

The potential for these trials to turn into fiascoes is large; perhaps President Obama and his Attorney General have forgotten the “political” trials of the 1960s and 70s. But they seem committed to returning to the pre-September 11 model of treating terrorism as a law enforcement matter, regardless of the consequences.

Ask yourself this question: suppose that Khalid Sheikh Mohammed’s trial results in an acquittal or a hung jury. Would the Obama administration really let him go? If so, they are crazy. If not, why are they holding the trial?

Steve Benen:

Rep. Pete King (R-N.Y.) added that a trial “a few blocks from the World Trade Center site” necessarily puts the United States “at greater risk.”

Keep in mind, this bizarre nonsense came by way of written statements. The comments weren’t made off the cuff, before they could really think about what they were saying — these were carefully crafted sentiments, which just happen to be ridiculous.

Greg Sargent added, “The larger point is that Republicans are already seizing on the Obama administration’s decision to revive memories of 9/11 in order to give fresh urgency to GOP criticism of current terrorism policies. The amount of time that has passed since 9/11 had caused terrorism to fall dramatically on the list of voter concerns, making Republican criticism of the administration’s moves on terror seem almost like a sideshow and a distraction.”

I just wish conservative Republicans would come up with an argument here. I’m not looking for air-tight reasoning — just something coherent and half-way intelligent. Because at this point, I have a hard time imagining that even the most dimwitted member of Congress actually believes that fair trials for almost-certainly-guilty terrorist suspects are “dangerous.”

Who is it, exactly, that Boehner & Co. don’t trust? The American system of justice? Federal prosecutors? Officials at federal detention facilities?

Or are we back to Republican fears that terrorist suspects are comic-book villains with super powers?

UPDATE: Emptywheel

Jennifer Rubin at Commentary

UPDATE #2: James Joyner

UPDATE #3: The argument re-opens: Michelle Malkin

Jonathan Turley

Cully Stimson at Heritage

Chris Good at The Atlantic


1 Comment

Filed under Crime, GWOT, Homeland Security, Political Figures

One response to “The Real Trial Of The Century

  1. Pingback: What We’ve Built This Weekend « Around The Sphere

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