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.

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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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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