Wednesday, November 18, 2009

Not a convincing case: The argument against Eric Holder

I was somewhat surprised last week when Attorney General Eric Holder announced that the U.S. Department of Justice was going to put Khalid Shaikh Mohammed and four of his co-conspirators in the 9-11 attacks on trial in federal court. I had presumed they would be tried in a military tribunal and quickly executed.

Not surprisingly, all of the usual right-wing nut-jobs (RWNJs) have jumped out of their high-chairs to call for Holder's head for this decision. Yet if you really examine what the RWNJs have to say against a trial in federal court, the critique does not hold up to scrutiny.

Here, for example, is former GW Bush speechwriter Michael Gerson:
America will be subjected to the airing of intelligence sources and methods, to the posturing of mass murderers fully aware of their terrorist star power, to the possibility of mistrial and procedural acquittal, and to an increased threat of revenge attacks against New York City. Holder seemed to concede this last complication by asserting that New York is "hardened" against possible terrorism. If I were a New Yorker, that would fall into the category of chilly comfort.

I don't buy any of that. Neither does Steven Simon, a fellow at the Council on Foreign Relations and the co-author of “The Age of Sacred Terror” and “The Next Attack.”

Mr. Simon, in the New York Times, addressed these charges one at a time:

1. America will be subjected to the airing of intelligence sources and methods.

Simon says no:
Our prosecutors are certain that there is enough unclassified evidence to make their case. Moreover, the most prized intelligence is recent, specific and actionable. Al Qaeda today is most concerned with discovering when and where the next drone missile attack will take place in Pakistan, information not likely to be disclosed during a trial about a conspiracy hatched more than a decade ago.

2. America will be subjected to the posturing of mass murderers fully aware of their terrorist star power.

Simon says no:
The truth is, if the trial provides a propaganda platform for anybody, it will be for our side. First, federal courts do not permit TV cameras in the courtroom, so the opportunity for “real time” jihadist propagandizing won’t exist. And while defendants and their lawyers can question witnesses, they cannot make speeches; judges are kings in this domain and can quash irrelevant oratory. Some point out that in earlier terrorism trials, like those of the plotters of the 1993 World Trade Center attack, the defendants did ramble at length. True, but does anyone who fears a circus now remember a single word from those earlier trials? The real propaganda event is likely to unfold very differently. Instead of Khalid Shaikh Mohammed making his case, we will see the full measure of the horror of 9/11 outlined to the world in a way that only methodical trials can accomplish. Historically, the public exposure of state-sponsored mass murder or terrorism through a transparent judicial process has strengthened the forces of good and undercut the extremists. The Nuremberg trials were a classic case. And nothing more effectively alerted the world to the danger of genocide than Israel’s prosecution in 1961 of Adolf Eichmann, the bureaucrat who engineered the Holocaust.

3. America will be subjected to the possibility of mistrial and procedural acquittal.

Gerson says "possibility," but doesn't say how likely that possibility is. So his statement could be true if there is a 0.001% chance of it happening. Insofar as a trial in federal court is likely to result in an acquittal, Simon says no:
That’s highly unlikely. First, he has already confessed to the crime; and, given the zero acquittal rate for terrorists in New York previously, any anxiety about a “not guilty” verdict seems unwarranted.

I would add this: But for the fact that even loathsome assholes have the right to a fair trial in our country, we would not have a country worthy of pride. If the argument is that there should be no chance of acquittal, then there is no reason to have a trial at all.

4. America will be subjected to an increased threat of revenge attacks against New York City.

Increased compared with what alternative? Already the crazed Muslim fanatics want to attack New York or anywhere else they can murder "infidels." This trial won't change that.

Steven Simon argues that compared with a secret military tribunal, a trial in federal court will do the least to inspire more attacks against us:

In the case of Khalid Shaikh Mohammed, the alternatives — indefinite incarceration without trial, or a military tribunal closed to the public followed by execution — are far more likely to inspire militant recruits. And highlighting the transparency in our judicial process would strengthen America’s reputation just as cracks are beginning to appear in the jihadist base. ... Polling since 2001 has shown that in most Muslim-majority countries, tolerance for terrorism and support for Al Qaeda is gradually eroding. It is strongly in our interest to reinforce these trends by underscoring the terrorists’ killings of civilians and our own commitment to the rule of law.

In the National Review Andy McCarthy makes a different case against the trial in federal court:

If we are at war, and the Attorney General said this morning that we are, we have to treat it like a war. Pressed by Sen. Graham this morning, the AG could not name a single time when, during war, we captured an enemy combatant outside the U.S. and brought him into the United States for a civilian trial — vesting him with all the rights of an American citizen. That's because hasn't happened. That's not how you treat wartime enemies.

McCarthy could be right to say that is not how you (normally) treat wartime enemies, even if we have decided they are not prisoners of war. However, it is not clear why McCarthy thinks granting these defendants a federal trial is harmful to our war effort. He doesn't say he thinks they will get away with their crimes because of this decision by the AG. (He actually says, "I'm also very confident that KSM and the others will be convicted.") He doesn't argue this trial will lead to more attacks, will compromise our intelligence sources and methods or will turn the defendants into stars or beloved martyrs.

The two primary reasons I thought these criminals would be tried in military tribunals were 1) that a military tribunal would be faster; and 2) that it would be impossible to marshall an effective case in federal court because of the problem of admitting evidence.

The second reason seems to have been shot down. Even most RWNJs admit as much. And the first, as I understand it, is untrue because the military itself cannot adequately get its tribunals in order. That is a primary reason why there are still many prisoners at Gitmo: the military's court system is terribly slow, too.

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