Who is Really on Trial in the KSM Case?

By Adam Serwer, American Prospect - November 25, 2009

This July 2009 photo downloaded from the Arabic language web site shows a man identified by the site as Khalid Sheik Mohammed. (AP Photo/

The decision to try Khalid Sheik Mohammed, the alleged mastermind behind September 11, and his alleged co-conspirators in a civilian court sparked charges of "irresponsibility" from the Republican Party. The GOP rallied around the fear that a civilian trial would give the accused a platform to air his indictments of the United States, and Liz Cheney's "Keep America Safe" organization warned of "the dangers of giving war criminals the same rights as American citizens."

In fact, the thing that was most horrifying about the decision was that it was made by a Democrat. In 2006, former federal prosecutor Rudy Giuliani said that trying 9-11 co-conspirator Zacarias Moussaoui in federal court "demonstrate[d] that we can give people a fair trial, that we are exactly what we say we are. We are a nation of law." That same Giuliani, to the delight of conservatives everywhere, called the Obama administration's decision to try Mohammed in federal court "dangerous and irresponsible," insisting, like many other conservatives, that Mohammed should instead be tried by military commission.

Republicans' view of whether trying a terrorist in federal court is a victory for the rule of law or "irresponsible" tracks closely with whether a Democrat or a Republican is in the White House. The U.S. has far more to gain from trying the alleged 9-11 conspirators in civilian court than it has to lose. Despite conservatives' fears, there will be no TV cameras in the courtroom, no Khalid Sheik Mohammed monologues on the evening news except for those delivered by transcript. What the trial will put on display is the United States' commitment to due process, and it may potentially prove America is unafraid to confront its own wrongdoing when it comes to the abuse of the accused while in government custody.

The military commissions are, essentially, a new legal system the Bush administration invented almost from scratch to solve a very specific problem: the weakness of the government's evidence against some Guantánamo Bay detainees. Early incarnations were declared unconstitutional by the Supreme Court, so the commissions only managed to try three cases -- while federal criminal courts tried more than a hundred terrorism cases over the same time period. It's likely just a matter of time before the constitutionality of the new military commissions is challenged, meaning cases tried through military commissions could be delayed indefinitely. The recently revised guidelines for the commissions haven't even been released by the Department of Defense. David Danzig, who recently observed the proceedings for Human Rights First, said the commissions have a "making-it-up-as-we-go feel."

During the Bush administration, Republicans praised the convictions of terrorists like Moussaoui and Richard Reid in federal court. Now, they're arguing that military commissions should be used almost exclusively, claiming that accused terrorists don't "deserve" the same rights as Americans. This argument undermines the entire concept of a fair trial by assuming the accused is guilty prior to conviction -- and misunderstands that the right to a fair trial isn't just about granting individuals rights; it's about restricting the government's power through due process. The Republicans arguing that Mohammed should be tried by the haphazard ad-hoc legal system described above are willing to destroy the very foundations of American democracy in order to toss the rubble at al-Qaeda.

Actions matter -- which is why trying Mohammed in a civilian court with all the rights of any other criminal defendant is not just an opportunity to indict the murderous philosophy of al-Qaeda before the international community but to show that Americans are not afraid of our own system of justice, that we can stand scrutiny of our own behavior -- particularly from an alleged mass murderer, which seems like a low bar to clear. The only things Mohammed or the other accused might say about America that have any relation to reality have to do with policies that have become an implicit part of the Republican Party platform.

National Review's Andy McCarthy admitted last week that one of his concerns was that a civilian trial would involve "putting the Bush administration under the spotlight." This is what conservatives are truly afraid of. Their aggressive support for violating international human-rights laws and domestic prohibitions against torture has been a boon to terrorist recruitment around the world. And the Obama administration does not get off clean -- these are policies it has in some cases continued. Torture apologists are naturally apoplectic that such policies will bear scrutiny in a court of law rather than in the fun house of cable news. Ultimately, how the trial is perceived abroad will also depend on the government's willingness to refrain from using the Classified Intelligence Procedures Act to block the disclosure of information that is already known -- such as the abuse Mohammed suffered in American custody. The Obama administration will have to show courage that has been lacking since it originally disclosed the Bush administration's torture memos months ago.

In court, no amount of Cheney-style dissembling about the mythical efficacy of torture would hide the fact that torture is a crime and that in the name of "safety," Mohammed was waterboarded more than 183 times and told that if he didn't talk his children would be murdered. This behavior is not defensible because Mohammed has done wrong -- prohibitions on torture, like guarantees of due process, are about how government is allowed to treat those in its custody, not about the individual's moral self-worth. A trial by military commission might feed into the alleged terrorists' perception that they are "holy warriors" instead of murderers -- a notion that complements the conservative perception of terrorists as superpowered villains rather than as thugs.

This trial is as much about showing the world that America is a country dedicated to the rule of law, a nation that will stare unflinchingly at its own sins, as it is holding Mohammed and his cohorts to account for their alleged crimes. But the sad truth is that while this trial is an important step, the Obama administration's continuation of other Bush policies remains a liability. Maintaining a "hybrid" legal system in which the venue is based on the strength of the government's case, rather than the nature of the alleged crime, and continuing a policy of indefinite detention outside a military context will continue to undermine the perception that the U.S. is governed by the rule of law rather than its own fearful impulses. PRINT THIS ARTICLE SEND A LETTER TO THE EDITOR

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