Friday, November 20, 2009

Pro and Con: Justice at Ground Zero. Yes or No?


A battlefield in the courtroom.

By Eugene Robinson

Critics of Attorney General Eric Holder's decision to bring the self-proclaimed mastermind of the Sept. 11 attacks and four other accused terrorists to New York for trial can't seriously believe the city will have trouble handling the expected "trial of the century" hoopla. The critics can't really think a judge is going to give Khalid Sheik Mohammed an open microphone to spew his jihadist views, or fear that a jury -- sitting just blocks from Ground Zero -- will look for reasons to let an accused mass murderer off on some technicality.

In the enemy's version of history, the West -- meaning the United States, Israel, Britain and what used to be called Christendom -- has a long history of exploiting the Muslim world. We occupy Muslim lands to steal their resources. We install corrupt lackeys as their rulers. For all our high and mighty talk about fairness and justice, we reserve these luxuries for ourselves. In this warped worldview, we deserve any atrocities that jihadist "warriors" might commit against us.

Protesting that all this is absurd and obscene does not make it go away. And our troops' military success actually helps to further the jihadist narrative about a "crusade" against Islam.

It's ironic that many of the officials and commentators who are so upset about the decision to give KSM a civilian trial were also quick to call the Fort Hood killings an act of terrorism. If the suspect, Maj. Nidal Hasan, is indeed a terrorist -- and not just a deranged man who snapped -- then his awful rampage helps demonstrate my point. Hasan reportedly considered the U.S. military deployments in Iraq and Afghanistan a war against Islam, at one point arguing that Muslim soldiers should be excused from combat as conscientious objectors. In other words, he apparently bought at least part of the jihadist line. If killing a terrorist in Kandahar creates one in Killeen, we'll never make progress.

In this context, putting KSM and the others on trial in a civilian proceeding on U.S. soil is not just a duty but also an opportunity. It's a way to show that we do not have one system of justice for ourselves and another for Muslims, that we give defendants their day in court, that we insist they be vigorously defended by competent counsel -- that we really do practice what we preach.

Even if a military tribunal would be just as fair -- and a military court might be even more offended than a civilian one by the fact that KSM was subjected to waterboarding -- a trial by men and women in uniform would be seen as an extension of the "war on Islam."

Holder's choice is not without risk. The biggest question I have is whether an impartial jury could be impaneled in New York. And while I believe the chance of an acquittal is incredibly remote, if it happened, KSM would be kept in indefinite detention anyway -- a nightmare scenario.

But there's one more huge benefit to a civilian trial: It would show the preachers of hatred and their followers that we're not afraid of them or their poisonous ideas. It would show that they haven't changed us or our ideals -- and that they never will.

I say bring it on.



Travesty in New York

By Charles Krauthammer

For late-19th-century anarchists, terrorism was the "propaganda of the deed." And the most successful propaganda-by-deed in history was 9/11 -- not just the most destructive, but the most spectacular and telegenic.

And now its self-proclaimed architect, Khalid Sheik Mohammed, has been given by the Obama administration a civilian trial in New York. Just as the memory fades, 9/11 has been granted a second life -- and KSM, a second act: "9/11, The Director's Cut," narration by KSM.

September 11, 2001 had to speak for itself. A decade later, the deed will be given voice. KSM has gratuitously been presented with the greatest propaganda platform imaginable -- a civilian trial in the media capital of the world -- from which to proclaim the glory of jihad and the criminality of infidel America.

So why is Attorney General Eric Holder doing this? Ostensibly, to demonstrate to the world the superiority of our system, where the rule of law and the fair trial reign.

Really? What happens if KSM (and his co-defendants) "do not get convicted," asked Senate Judiciary Committee member Herb Kohl. "Failure is not an option," replied Holder. Not an option? Doesn't the presumption of innocence, er, presume that prosecutorial failure -- acquittal, hung jury -- is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place.

Moreover, everyone knows that whatever the outcome of the trial, KSM will never walk free. He will spend the rest of his natural life in U.S. custody. Which makes the proceedings a farcical show trial from the very beginning.

Apart from the fact that any such trial will be a security nightmare and a terror threat to New York -- what better propaganda-by-deed than blowing up the courtroom, making KSM a martyr and turning the judge, jury and spectators into fresh victims? -- it will endanger U.S. security. Civilian courts with broad rights of cross-examination and discovery give terrorists access to crucial information about intelligence sources and methods.

That's precisely what happened during the civilian New York trial of the 1993 World Trade Center bombers. The prosecution was forced to turn over to the defense a list of 200 unindicted co-conspirators, including the name Osama bin Laden. "Within 10 days, a copy of that list reached bin Laden in Khartoum," wrote former attorney general Michael Mukasey, the presiding judge at that trial, "letting him know that his connection to that case had been discovered."

Finally, there's the moral logic. It's not as if Holder opposes military commissions on principle. On the same day he sent KSM to a civilian trial in New York, Holder announced he was sending Abd al-Rahim al-Nashiri, (accused) mastermind of the attack on the USS Cole, to a military tribunal.

By what logic? In his congressional testimony Wednesday, Holder was utterly incoherent in trying to explain. In his Nov. 13 news conference, he seemed to be saying that if you attack a civilian target, as in 9/11, you get a civilian trial; a military target like the Cole, and you get a military tribunal.

What a perverse moral calculus. Which is the war crime -- an attack on defenseless civilians or an attack on a military target such as a warship, an accepted act of war that the United States itself has engaged in countless times?

By what possible moral reasoning, then, does KSM, who perpetrates the obvious and egregious war crime, receive the special protections and constitutional niceties of a civilian courtroom, while he who attacked a warship is relegated to a military tribunal?

Moreover, the incentive offered any jihadist is as irresistible as it is perverse: Kill as many civilians as possible on American soil and Holder will give you Miranda rights, a lawyer, a propaganda platform -- everything but your own blog.

Alternatively, Holder tried to make the case that he chose a civilian New York trial as a more likely venue for securing a conviction. An absurdity: By the time Barack Obama came to office, KSM was ready to go before a military commission, plead guilty and be executed. It's Obama who blocked a process that would have yielded the swiftest and most certain justice.

Indeed, the perfect justice. Whenever a jihadist volunteers for martyrdom, we should grant his wish. Instead, this one, the most murderous and unrepentant of all, gets to dance and declaim at the scene of his crime.

Holder himself told The Post that the coming New York trial will be "the trial of the century." The last such was the trial of O.J. Simpson.


ichbinalj said...

dhsmith1 said: This is the most foolish analysis of the decision to conduct civil trials that I've seen. The Islamist's vision of justice does not converge nor can it ever converge with ours. So Eugene, with whom are we trying to communicate in this holy mission?

ichbinalj said...

RossEmery said: Let's be real. We are in a shooting war with terrorists. It will be next to impossible to find an impartial jury in New York City for the September 11th trials. The civilian justice system is neither appropriate nor workable under these circumstances. The military venue is the only viable option.

ichbinalj said...

Crites said : Eugene Robinson purports in this article to understanding the enemy, who in fact favors a much harsher system of justice called Sharia Law and basically views our civilian court system as weak, ineffective, and vulnerable. The trial of KSM in New York will have absolutely no effect on the Muslim world other than to demonstrate our cultural weakness. This is all about liberals patting themselves on the back over their Utopian ideals while placing our citizens at risk of attack. KSM is not an American citizen; he is a war criminal deserving only of a military tribunal and sentence of execution. Shame on George Bush for not accomplishing this objective. Furthermore, Robinson and other liberals continue to point out that KSM will not ever see freedom thereby undercutting their own argument of judicial fairness, and rendering the entire trial a fiasco.

ichbinalj said...

ftlipkin Bravo to Eugene Robinson for stating that we also have to win the war of ideas -- and that so many people have such little interest in understanding the enemy to find its
After Sept. 11 a report from an Arab source on CNN stated that this had nothing to do with Islam. The U.S. was supporting the King of Saudi Arabia the same way that they had supported the Shah of Iran and they would both go down the same way.
That says it all. It is the key to understanding the enemy and no one is listening.
We should remember our own revolution and our hero, Nathan Hale, who said he regretted that he only had one life to give for his country.
The "terrorists" whose planes crashed on Sept. 11 were not jihadist martys dying for Islam. They were the Nathan Hales of the Arab revolution fighting for their freedom against the Saudi
regime. Our first step in understanding the enemy is to understand this.
Harry J. Lipkin
Rehovot, Israel


ichbinalj said...

tescherm said: Eugene, I am always quite relieved when I read you, whom I respect and consider a voice of reason.

I have always been revolted by the Bush term "war on terror", since I associate war with a known country which has declared the United States the enemy and has begun the fight. The Bush Doctrine, wherein he adapted, and successfully sold, the idea of "get them (Iraq) before they get us" is disgusting and criminal in and of itself.

KSM and his cronies are not enemy combatants in a war-they are common thugs who happened to be driven by ideology and who, by the sheer magnitude of the horror they inflicted on the people of NYC, have earned the title of terrists. They are not enemy combatants.

It is constitutional common sense that they be tried like any scumbag who commits a crime here (think Timothy McVeigh and the other middle easterners who have successfully been tried and convicted here under US law.)

The republicans and others who kick up the fear level and condemn Attorney General Holder for doing the right thing are simply doing what they've been doing with everything-anything they can to tarnish the Obama presidency and bring his administration down. The fact that they persist in this with such callous disregard for the fallout from their actions on all of us and on this country is beyond evil, and I am heartsick over the damage they do.

Hold the trial, get a change of venue if an impartial jury can't be found, and get on with this the right way.

ichbinalj said...

Deadulus said: Doesn't the presumption of innocence, er, presume that prosecutorial failure -- acquittal, hung jury -- is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place.

No! We have an adversarial legal system and Eric Holder speaks for the prosecution as Attorney General--of course he believes he will and of course he thinks the people he is prosecuting are guilty and will be convicted as such. Holder does not speak for the Judicial branch! The finder of fact must presume innocence--not the prosecution--it would be absurdity for a prosecutor to presume innocence and still be able to prosecute them as a legal matter.

ichbinalj said...

mischanova said: Krauthammer comes from the "be afraid, very afraid of the world" school that believes that holding a trial for terrorists gives them a platform that will cause many to come over to the side of the terrorists. It never occurs to the Krauthammers and Cheneys that that very exposure may work against those people, that bringing their vile spew to the public will turn people from them, not to them. The Krauts and Cheneys are also afraid of the very system they purport to want our troops to fight on behalf of. If our system is so fragile and unworthy of using, why send hundreds of thousands of troops around the world to defend it?

ichbinalj said...

shewholBinkyLover wrote:
imnothome wrote:
BinkyLover, my understanding is that neither an act of Congress nor the inherent powers of the Executive laid out in the Constitution expressly authorized the sort of military commission at issue in the case. Absent that express authorization, the commission had to comply with the ordinary laws of the United States and the laws of war. The ordinary laws of the US would include the Constitution and its protections.
Yes, that was the problem in Hamdan. There weren't any relvant laws governing the tribunals. They were set up by the executive branch, which was construed as making law (though 3 justices disagreed). By doing so, it was ruled that the executive branch was acting outside of the law. Congress had to authorize the tribunals.

The 5th Amendment excludes people like KSM from inherent constitutional privileges when it comes to trial: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..."

There is a specific exclusion of rights for acts of war or when there is a presence of public danger (KSM falls under both categories). It IS within the authority of the federal government to indict KSM, but they are by no means bound to do so. This is made obvious by the fact that other terrorists will face a military tribunal. What this amounts to is an extraordinarily stupid decision by an administration who can't seem to give a rational explanation for their actions. I can only presume that it's intended to be some more "let's get Bush" BS.
ives said;

ichbinalj said...

LeftGuy wrote:

"Many of Holder's critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including "shoe bomber" Richard Reid; al-Qaeda agent Jose Padilla; "American Taliban" John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again. "

Anonymous said...