Dispatch November 2009

Khalid Sheik Mohammed and You

Prosecuting the alleged 9/11 mastermind in New York is a good thing. But try telling that to Americans who stood by as terror suspects were improperly treated.
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If you are upset about the Obama Administration’s 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 didn’t 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 “worst of the worst” were on a foreign island and away from you, you were fine with it.

For years, you didn’t raise your voice and tell your elected officials that you welcomed a fair trial for the detainees under military rules. For years, you didn’t 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 didn’t 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 Court’s 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 couldn’t or wouldn’t 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 nation’s ideals. You delegated the job. You vaguely remember former Justice Sandra Day O’Connor’s quote that “war is not a blank check for the president when it comes to the rights of the nation’s citizens,” but you didn’t object when the White House and the Congress consistently presented that blank check to be cashed at the expense of people like Mohammed.

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, “Good,” 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 nation’s torture policy. You didn’t read the torture memos. You didn’t read the International Red Cross’s seminal report. You didn’t want to know what Bush-era lawyers like John Yoo and David Addington and Jay Bybee were up to. To you, they were brave soldiers of the law standing on the parapet protecting you from guys like Mohammed.

But now it’s 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. The tabloids already have turned this mortal man into a monster. The very same politicians whose failed compromises stalled the tribunals in Cuba for nearly a decade now suddenly are projecting their own failures upon the federal courts. Suddenly the so-called rule of law isn’t good enough; suddenly it’s the federal judiciary and federal prosecutors who are inept.

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 shouldn’t get the same rights as you? Okay, that’s fair. But so what? The Gitmo tribunals were stalled, dead in the water, so aren’t you willing to sacrifice your feeling of indignation for the quicker conviction and sentence Mohammed’s civilian trial almost surely will bring? Aren’t 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? Don’t 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? Don’t you think it hurts their cause to be considered murderers and not jihadist soldiers?

Are you distrustful of the federal judiciary? Why, because you believe the dangerous lie about how judges are ruining the rest of the government’s war on terrorism? 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? Why, because O.J. Simpson went free in 1995? 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, it’s 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 Mohammed’s incriminating statements made to tribunal officers in Cuba? What about all of that makes you think he’s suddenly going to turn into a John Demjanjuk and deny, deny, deny it all?

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. It’s old news. Mohammed is just a man, and soon he’ll be a defendant, and then he’ll be a ranting, shrieking crazy person in court, then he’ll be convicted and then he’ll be sentenced. Don’t be angry about it now that is going to occur. Don’t 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.

Andrew Cohen is a legal analyst and commentator.
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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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