Justice in a Time of Terror: Be Not Afraid

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This is the final piece of a three-part series looking at the legal War on Terror since September 11, 2001. Part I focused upon some of the heroes and villains of the story so far. Part II looked at the interconnected ways in which each of the three branches of government reacted to the legal challenges posed by the attacks.

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Zacarias Moussaoui (L), a French citizen of Moroccan descent was the first person indicted for involvement in 9/11 (Reuters)

Part III: Be Not Afraid 

On March 18, 2003, the day America went to war against Iraq, I posted this piece about Zacarias Moussaoui, the man U.S. officials had initially claimed was the "20th hijacker" of September 11, 2001. Moussaoui, you may recall, was arrested in Minnesota on August 11, 2001, exactly one month before the Twin Towers fell, because he was trying to learn to fly commercial planes without learning how to take off or to land. He was in custody on 9/11.

The piece at CBSNews.com, working off fine reporting by CBS News Correspondent Jim Stewart, focused upon the fact that the (recently captured) 9/11 mastermind Khalid Sheik Mohammed had reportedly told his captors that Moussaoui was not part of the 9/11 plot. The headline (which I did not write) of the piece was: "Is Moussaoui Small Fry?" In federal custody at the time, Moussaoui was given the piece by the attorneys who were working with him.

"As the second decade of our war on terror begins, America shouldn't go backwards toward irrational fear of al-Qaeda"

Soon thereafter, as was his way, Moussaoui filed his own hand-written motion with U.S. District Judge Leonie M. Brinkema asking to be given certain additional due process rights. He cited my column, identified me as "the Jew Cohen," and argued that "if even mine (sic) worst enemy, 'the Jew Cohen' thinks I ought to have more constitutional rights then I ought to have more constitutional rights." It was an instant classic. I have a copy still in my files.

Curious that I had captured the attention of a confessed al-Qaeda soldier, I called Frank Dunham, then the federal public defender in Alexandria, Virginia, and asked him what he thought. "Yeah, you definitely made the list," Dunham told me. "You're probably 50th on the list of people he wants to get, I'm in front of you, and if he gets all the way to you we're in bigger trouble than we think," he said, laughing the whole time.

I

Dunham, a great lawyer and a wonderful man, is now gone. He died of brain cancer in November 2006. Moussaoui is gone too. He's serving a life sentence without parole at the Supermax facility near Florence, Colorado, where he spends 23 hours a day in solitary lockdown. But the "small fry" episode has stuck with me through the years because Dunham understood what so many of us have not about the makeup of al-Qaeda's "soldiers of God." 

The terrorists who struck us on 9/11 were suicidal and soulless and they did a monstrously evil thing. But they were not of another world. They were not superhuman (or subhuman) monsters. They did not possess extraordinary powers of intelligence, skill, or cunning. That their plot against America succeeded beyond even their wildest imaginations earns them no extra credit. In many ways, they were as lucky as their innocent victims were unlucky. 

What Dunham understood, and what is so lamentably missing from so much public discourse about terror law these days, is the notion that the terrorists we fight today, the ones we have captured and the ones who still elude us, are more like criminals than warriors, more like thugs than high priests of violence. Of course they pose a threat. But they are all just men. Mortal, fallible, and now mostly incarcerated. Cons, not pros. We shouldn't pretend otherwise.

America has a long, ugly history of demonizing its enemies, especially when they look, act, and speak differently than most Americans. The country was cruel to Germans in World War I and to the Japanese in World War II. And for the past 10 years now xenophobia has found a new calling: the dehumanization of Muslims, both the vast majority who are innocent and the tiny fraction who are not. It's time we stopped indulging in such national insecurity.

II

No civilian will likely ever again hear from or lay eyes upon Zacarias Moussaoui. But I am here to tell you, since Dunham can't, that the convicted terror conspirator was largely a buffoon. He was such a pain in the butt to Khalid Sheik Mohammed -- he kept calling KSM on a cell-phone -- that the 9/11 mastermind basically fired him from the 9/11 terror plot. Yes, Moussaoui was a proud member of al-Qaeda. But his federal jury in Virginia saw through his bluster.

Richard Reid? He is the fellow who tried but failed to light his shoe on fire in an attempt to take down a civilian airplane. When he piped up in court, U.S. Chief District Judge William Young dressed him down and sent him to prison for life without any supper. Jose Padilla, the once-upon-a-time "dirty bomber"? Anyone who closely followed his 2007 trial in Miami understands how little fire existed beneath Attorney General John Ashcroft's smoke.  

How about the single most important al-Qaeda leader ever captured since 9/11? When Khalid Sheik Mohammed was apprehended in Pakistan on March 1, 2003, he was fast asleep. The first photograph of him after 9/11 has him looking almost exactly like Ron Jeremy, the legendary porn star. Just look at this guy! Yes, he was and perhaps still is dangerous. But if America in 2011 still is fearful of the likes of him, it's more on us than it is on him.

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Khalid Sheikh Mohammed after his arrest in 2003/Reuters

Speaking of porn, when justice finally came to Osama bin Laden himself in Abbottabad, Pakistan, he was hiding in a house where at least one computer had pornographic images on it. In Scarface, Al Pacino went down fighting. John Dillinger had the moxie to be out on a date when he was gunned down. Tim McVeigh died with his eyes open. Bin Laden? His wives were throwing themselves in front of him when the Navy Seal bullets flew.

III

By disparaging the prowess of some of the terrorists we know about, I don't mean to diminish the meaning of 9/11 or to discount the current threat to our friends, families, and interests. There is nothing funny about any of this, whether you are victim of the terror attacks or a victim of what has ensued. Instead, I'm here to suggest an end to the Decade of Fear. Over.  Finished. We should be vigilant. We should be stern. But we should no longer be afraid.

That is why the recent tactics of men like Senator John McCain are so discouraging. He wants to treat all terror law suspects under military law, foregoing completely the FBI and civilian trials. What a terrible idea. As the second decade of our war on terror begins, America shouldn't go backwards toward irrational fear of al-Qaeda. It shouldn't be elevating these men into super villains. It shouldn't be getting less tolerant of the Muslim minority in this country.

Enough already! The men behind what's left of al-Qaeda are unworthy of the denudation of our core constitutional rights. Our leaders should stop peddling hatred and fear to the American people, and we ought to stop indulging in convenient and popular prejudices toward Muslims and Islam. It's 2011. We survived. We've largely prevailed. Yahoos like Moussaoui didn't beat us, and they never will. On terror law, we have nothing to fear but fear itself.

If Frank Dunham were alive today, if I may be so bold to say so, he would be appalled at the uptick in anti-Muslim sentiment so many years after 9/11. He would think it absurd that Congress would have vitiated the role of federal courts in terror cases. And he would be treating his al-Qaeda clients for what they are, a bunch of zealous losers who more or less deserve the same rights as any other suspected crooks. He wouldn't be afraid. He never was.

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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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