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.

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.

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Andrew Cohen is a legal analyst and commentator.

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