by Andrew Cohen
Khalid Sheik Mohammed and You
If you are upset about the Obama Administrationís decision to bring al-Qaeda leader Khalid Sheik Mohammed to New York for a federal civilian trial, and you are looking to blame someone, go straight to your bathroom and look into the mirror. You have no one to blame but yourself.
You sat passively by for years while President George W. Bush and conservatives in Congress (both Republican and Democrat) ginned up one unconstitutional set of military commission rules after another. You didnít pay attention to the details of the Detainee Treatment Act of 2005 or the Military Commissions Act of 2006 or the major Supreme Court cases that told you the due process rules in place to try the terror suspects at Guantanamo Bay, Cuba were unlawful. You wanted revenge and retribution, even at the cost of justice and fairness, and, so long as the men you were (falsely) told were the ďworst of the worstĒ were on a foreign island and away from you, you were fine with it.
For years, you didnít raise your voice and tell your elected officials that you welcomed a fair trial for the detainees under military rules. For years, you didnít demand that the detainees have lawyers, or access to some of the evidence against them, or meaningful appellate review, or protection from abuse. Either you didnít have confidence in the evidence against the men, or the application of the law, or you believed that America would somehow be rendered diminished and vulnerable by giving people like Mohammed more justice than they deserve. When the White House and the Congress reluctantly followed the letter but proudly not the spirit of the Supreme Courtís rulings in Hamdan or Hamdi or Boumediene you just changed the channel and moved on with your life.
You were still so angry, so righteously angry, at what happened on September 11, 2001, that you just couldnít or wouldnít deal with the details. In good faith, you reckoned that the best and the brightest in Washington would figure out a way to get the job done, processing and prosecuting and sentencing the guilty efficiently and consistent with our nationís ideals. You delegated the job.
When learned scholars told you that the vast majority of terror suspects on Cuba had nothing to do with anti-U.S. activities, you turned the page. When you first heard about the torture of terror suspects you said, ďGood,Ē until you saw the pictures at Abu Ghraib. You had doubts then, perhaps, but not enough of them to demand of your representatives any sort of formal inquiry into our nationís torture policy. You didnít read the torture memos. You didnít read the International Red Crossís seminal report. You didnít want to know what Bush-era lawyers like John Yoo and David Addington and Jay Bybee were up to.
But now itís happened. As an indirect result of your inattention, and as a direct result of the strength of our Constitution and the concomitant failure of its political and legal stewards, one of these dark, sinister men is coming to Manhattan, to a courthouse just blocks from Ground Zero, for a federal civilian trial.
Stay in front of the mirror for a second. What are you afraid of? What about a Mohammed trial here in the States makes you so angry? Do you think he shouldnít get the same rights as you? Okay, thatís fair. But so what? Arenít you willing to set aside your rage at his treatment for the diplomatic and political benefits America will receive from giving the guy an open trial? Donít you think that treating Mohammed and his colleagues like common criminals is precisely the right message to send to the world about terrorism and al-Qaeda? Donít you think it hurts their cause to be considered murderers and not jihadist soldiers?
Are you distrustful of the federal judiciary? Have you taken the time to look at the track record that federal prosecutors have in successfully trying terror suspects in New York? Can you name a single case where the feds lost a major terror trial since September 11, 2001? Can you name one from before the terrible events that day? Is Tim McVeigh walking around Buffalo today? Is Terry Nichols walking around Kansas? Is Ramzi Youssef back in Brooklyn or Zacarias Moussaoui out on an airfield trying to fly planes in Minnesota? Have you heard from Jose Padilla or Richard Reid lately?
Are you really worried that Mohammed will go free? Do you really think that a judge and jury are going to let this guy walk? The United States in United States v. Mohammed has the biggest home-court advantage in American legal history. Not only will the government have enough evidence to convict him, itís likely that Mohammed will gleefully help convict himself. Did you pay attention to the Moussaoui trial when he proudly declared his al-Qaeda allegiance in a Virginia courtroom? Have you paid attention to Mohammedís incriminating statements made to tribunal officers in Cuba?
Are you worried that Mohammed will try to turn his trial into political theatre? So what? The world already has heard what he and his al-Qaeda pals think of America. The world already has seen the photos from Abu Ghraib. The world knows about waterboarding. Itís old news. Mohammed is just a man, and soon heíll be a defendant, and then heíll be a ranting, shrieking crazy person in court, then heíll be convicted and then heíll be sentenced. Donít be angry about it now that is going to occur. Donít fear it. Welcome it. And at the same time embrace your own role, and your own responsibility, for ensuring that it had to happen this way, at this time, and in this place.Khalid Sheik Mohammed and You - The Atlantic (November 16, 2009)