Why Is It a Problem?

November 16, 2009 6:25 a.m.

A lot of people — mainly but by no means exclusively Republicans — were on the Sunday shows yesterday denouncing the administration’s decision to jail and try KSM and four accused 9/11 plotters in New York City. And most of the criticism comes under three distinct but related arguments: 1) civilian trials give the defendants too many rights and protections and thus create too big a risk they’ll get acquitted and set free, 2) holding the prisoners and trial in New York City puts the city’s civilian population at unnecessary risk of new terror attacks, and 3) holding public, civilian trials will give the defendants an opportunity to mock the victims, have a platform to issue propaganda or gain public sympathy.

The first two arguments strike me as understandable but basically wrong on the facts. The third I find difficult in some ways even to understand and seems grounded in bad political values or even ideological cowardice.

Let’s start with the idea that civilian trials have too many safeguards and create too big a risk these guys will go free. This does not hold up to any scrutiny for two reasons. First, remember all those high-profile terror prosecutions where the defendants went free? Right, me neither. It just does not happen. The fact is that federal judges are extremely deferential to the government in terror prosecutions. And national security law already gives the government the ability to do lots of things the government would never be allowed to do in a conventional civilian trial. (People who really think this is an issue seem to base their understanding of federal criminal procedure on watching too many Dirty Harry movies, which, as it happens, I’m actually a big fan of. But remember, they’re movies.) KSM is not going to be able to depose or cross-examine CIA Director Leon Panetta or President Bush or Vice President Cheney or anyone else.

The possibility that a judge would suppress evidence obtained through torture is a real one. But Eric Holder made clear he and his prosecutors believe they have more than enough untainted evidence to obtain convictions. So that should not be an issue.

Finally, even in the extremely unlikely case that any of the five were acquitted of these charges, the government has a hundred other things it can charge them with. Indeed, the government could as easily turn them over to military commissions or indefinite detention post-acquittal as it can do those things with them now. That may not make civil libertarians happy. But it is the nail in the coffin of any suggestions that these guys are going to be walking out of the federal courthouse in lower Manhattan saying they’re headed to Disneyland. It’s simply not going to happen.

(The best argument against what I’ve argued here is probably the case of El Sayyid Nosair, the murderer of Jewish extremist leader Meir Kahane, who received a partial acquittal when he was tried in 1991. Here I would say that the case came prior to modern counter-terrorism law in the United States, which I’d date to the first World Trade Center bombing in 1993. And the Nosair example actually proves my larger point since a subsequent terrorism conspiracy trial got Nosair a life without parole plus fifteen year sentence, which he is now serving at the SuperMax facility in Florence, Colorado.)

We can imagine a different set of facts, where all the most damning evidence was obtained through torture, and acquittal seemed at all a reasonable possibility. In that case there might be a real question as to whether it was worth taking the risk when military commissions which have been used in the past are available. But this ‘risk’ simply doesn’t appear to exist so you do not even need to get to the constitutional or deeper rule-of-law questions.

Next we have the question of danger to the people of New York City. As I said in my first post on this question, just on the facts I don’t think al Qaeda terrorists are holding off on attacking New York now because they lack or incentive or feel we haven’t pushed things far enough yet to merit another hit. The symbolic value of hitting New York might increase a bit. But it’s already so high for these people that the increase seems notional at best. And more to the point, I choose to trust the people already charged with keeping the city safe.

On a more general level, however, since when is it something we advertise or say proudly that we’re going to change our behavior because we fear terrorists will attack us if we don’t? To be unPC about it, isn’t there some residual national machismo that keeps us from cowering even before trivially increased dangers? As much as I think the added dangers are basically nil, I’m surprised that people can stand up as say we should change what we do in response to some minuscule added danger and not be embarrassed.

And finally we come to the fear of what KSM and the others will say. I don’t see what factual dispute there is here. And at some level I don’t even understand the argument. Logically I understand it; I understand what they’re saying. But it’s so contrary to my values and assumptions that at some level I don’t get it. I cannot imagine anything KSM or his confederates would say that would diminish America or damage us in any way. Are we really so worried that what we represent is so questionable or our identity so brittle? (Some will say, yes: torture. The fact that some of these men were tortured is a huge stain on the country. But it happened and it’s known about. To the extent that it is a stain it is the kind of stain that is diminished not made worse by an open public accounting.) Does anyone think that Nuremberg trials or the trial of Adolph Eichmann in Jerusalem in 1961 or the war crimes trials of Slobodan Milosevic and others at the Hague advanced these mens’ causes? Or that, in retrospect, it would have been wiser to hold these trials in secret?

At the end of the day, what are we afraid these men are going to say?

What we seem to be forgetting here is that trials are not simply for judging guilt and meting out punishment. We hold trials in public not only because we want a check on the government’s behavior but because a key part of the exercise is a public accounting and condemnation of wrongs. Especially in great trials for the worst crimes they are public displays pitting one set of values against another. And I’m troubled by anyone who thinks that this is a confrontation in which we would come out the worse.

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