The Obama administration’s decision to try Khalid Sheikh Mohammed, the self-described mastermind behind the 9/11 terrorist attacks, and four alleged co-conspirators in civilian court is a laudable return to the rule of law from the Bush administration’s kangaroo military commissions, which convened offshore in Guantanamo to avoid giving defendants full legal rights under domestic or international law. But it is not enough.
Conservative commentators harshly criticized the move as either giving the heinous terrorists a break or, in the words of Sen. John Cornyn (R-Texas), treating the 9/11 attackers as "common criminals." Even liberals on the MSNBC television network couldn’t seem to grasp the greatest significance of Obama’s move, saying that it would restore U.S. prestige around the world.
Sen. Cornyn’s comments indicate that conservatives, in their haste to conduct their own crusade against a non-Christian religion, would rather buy into the terrorists’ warped conception of themselves as holy warriors than treat them for what they are: dastardly common murderers. The liberals would rather have other countries like the United States than focus on the restoration of constitutional safeguards.
The Fifth Amendment to the Constitution says that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a 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…." The Sixth Amendment ensures the defendant, for all criminal prosecutions, a public jury trial in the state or district in which the crime was committed, which includes getting a list of specific accusations, being confronted with hostile witnesses and compelling favorable witnesses, and having the right to a defense counsel.
The exception for the Fifth Amendment includes an alternative justice system only for U.S. military personnel during wartime, not "unlawful enemy combatants." Thus, despite earlier precedents in U.S. history, including during World War II, military tribunals for enemies are unconstitutional, especially when they violate many of the requirements of the Sixth Amendment.
Thus, the main benefit of Obama’s move is partially restoring a constitutional justice system after years of Bush administration abuse. Yet at least five other Guantanamo prisoners, and likely many more, will be denied a civilian trial. These five are being held for an attack on the USS Cole, an American warship, in 2000. Ostensibly, hitting a military target means a trial in a military tribunal. Although Obama has improved safeguards in such tribunals, the reality that some terrorists get better justice than others – evidently the more people you kill, the more justice you get – smacks of prosecution forum-shopping in order to get convictions.
Administration officials even admit that the vast majority of Guantanamo prisoners will continue to be held indefinitely without any kind of trial. Even more horrible, acknowledged innocent people will be held until a foreign country accepts them, because U.S. administrations have been politically scared to admit they terribly wronged these people and release them into the United States.
Undermining even the civilian trials is the unlikelihood that any of the 9/11 defendants would be released even if acquitted. U.S. Attorney General Eric Holder declined to say whether this was possible. In any normal trial, it is a given. Holding a high-profile prisoner even after he is exonerated could subvert the perceived fairness of the U.S. justice system even further. Autocracies hold show trials; a republic does not.
But if these defendants are treated as any other similarly accused murderers, bringing them to justice in a civilian court is one step out of the abyss.
Read more by Ivan Eland
- Why Most Counterinsurgency Wars Fail – November 10th, 2009
- Knocking Our Heads Against a Wall in Palestine – November 3rd, 2009
- Obama Still Doesn’t Grasp Blowback – October 27th, 2009
- Is Adulation of the Military Really Patriotic? – October 20th, 2009
- Five Facts About Afghanistan – October 13th, 2009
Robert Hutchinson
November 18th, 2009 at 12:50 pm
The noninterventionists make a very good point that 9/11 was blowback for our foreign policy in the Middle East. If 9/11 was a deliberate, planned attack in response to perceived American aggression in the Middle East, then it should be treated as an act of war and the exception in the Fifth Amendment directly applies to this case.
It would seem strange that we could have military tribunals for American soldiers who commit crimes as soldiers but not for those fighting the US. Critics of the American conduct of our counter insurgency are better grounds fighting the abuses and torture that the CIA and others are accused of engaging in.
Bob
November 18th, 2009 at 5:51 pm
I'm confused. How can we have "trials", military or civilian, without investigating the crime. 9-11 was NEVER properly investigated. What part of that don't the morons that populate this country get?
First you INVESTIGATE, then you charge. Where's the evidence? I hear a lot of conspiracy theories, primarily from the federal government, but I haven't seen any evidence. In case you Faux News true believers haven't realized, the feds constantly lie to us, the peasants.
Concerned Citizen
November 18th, 2009 at 11:59 am
Mr. Eland. In my opinion, you are greatly mistaken about assessing the 9/11 terrorists as common murderers. Do not underestimate them. They orchestrated their operations like military units, with training, intelligence, financing, and logistics. We have a war being waged against us. Make no mistake about it. __Many people criticized our government for not preventing the 9/11 attacks. Our government has come a long way in counter-terrorism. Let's not undermine their efforts by improperly categorizing the terrorists within our domestic judicial system.__I do strongly believe in upholding the rule of law, which has not been perfectly upheld in these cases I agree. So maybe to the benefit of all, and the protection of the American people, we need to have our lawmakers look at creating a new set of criteria and laws for international terrorists.
Ellis
November 18th, 2009 at 7:36 pm
"The Obama administration’s decision to try Khalid Sheikh Mohammed, the self-described mastermind behind the 9/11 terrorist attacks, and four alleged co-conspirators in civilian court is a laudable return to the rule of law."
In factual reality, 9/11 was done by Israelis and Americans, not Muslims. And a key feature of the 9/11 mass murder is that this crime was and is designed to be blamed on Muslims.
And now we have an actual Muslim prisoner, who we know has been tortured into confessing, and who has thereby been forced into the position of being the official Defendant. And you call that "a return to the rule of law"! What is it really? It is a deliberate continuation and enlargement of the crime itself. The criime was to commit mass murder and then blame it on Muslims. Now, that deliberate, pre-planned, false accusation is being focused on one small group of specific people.
People as smart and sophisticated and well-informed as you and Justin Raimondo cannot possibly be unaware (in the privacy of your own minds) that what I am saying here is valid. What is it that you get from relentlessly pretending?
john hatch
November 18th, 2009 at 8:55 pm
How on earth can you waterboard someone 181 times (or whatever) to induce a false confession and then use it to convict. So Khalid Mohammed confessed. You would have too. Now he wants to be a martyr and to get it over with, and dopey America is about to oblige.
Did he also manufacture the weaponized anthrax in his cave? What about the nano-thermite found in dust samples taken from various WTC locations? Did he take out put options on airlines and investment houses about to go poof? Did he deliberately block any investigation into 9/11, destroy evidence, and then cripple the 'investigation' once it became unstoppable? Did he steal all the photos of whatever hit the Pentagon?
What a mess!
fedupandsick
November 18th, 2009 at 8:59 pm
So any crime that involves training, logistics, intelligence and money should be considered to be an act of war because the miliyary operates similarly? Maybe we can try mob bosses in a miltary tribunal.
Robert Hutchinson
November 19th, 2009 at 12:07 am
The unconstitutional aspect of this situation is that the US Congress did not declare war. Hence we did not have an actual debate on our Middle East policy and how it relates to the post 9/11 conflicts.
Al Qaeda is not the mafia. It has political aspirations and perceives itself as fighting for the political independence of Saudi Arabia and other Middle East countries. Al Qaeda's stance is that they are at war with the US. The US reaction (sending thousands of soldiers overseas to fight a conflict) demonstrates we treat them as a party we are at war with. Their actions should be tried by military standards, not civilian.
fedupandsick
November 19th, 2009 at 2:06 am
I was only responding to the four words used to describe a military operation. No wehere did I even imply that al qaeda was the same as the mafia. The mafia is much more scary.
Senator Cornyn Does Not Trust the Judicial System | Blogging Senator John Cornyn
November 19th, 2009 at 8:13 am
[...] And here’s more insight: Civilian Trials for 9/11 Suspects Aren’t Enough [...]
ERIK
November 19th, 2009 at 3:35 pm
Mr. Eland, your calling of terrorists common murderers serves your cause well, though I suspect that your work with the government in the past has led you to having held a security clearance however brief, and more than likely being something more than a simple TS/SCI. The "Kangaroo Courts" that you speak of were held in a manner so as not to allow these "common murderers" to have the opportunity to speak freely on camera to spread their rhetoric. Shame on you for not seeing/reporting what was really taking place, simple censorship.
The biggest flaw in our collecting of intelligence is Democracy itself, since FOIA demands that we share everything or face penalty.
Tarleton
November 21st, 2009 at 1:57 am
Both Holder and Obama are making it sound like there will be no real trials and the 5 defendants will be trotted in to plead guilty. Maybe they'll let them make some kind of statement, one that these now-likely-deranged defendants have been practicing for a few years, trying to figure out what they can say that most pleases their captors.
How common is it for defendants facing the death penalty not to avail themselves of a real trial, a not guilty plea, and whatever defense they can put on to say they got the wrong guy? That happened with Moussaoui but he seemed to have just given up, plus they had him wearing a "stun belt" to keep him quiet in court. When the judge was about to rule that the prosecution could not play cockpit voice recorder tapes because there was no evidence connecting Moussaoui to the 9/11 plot, the prosecution came up with a card – 3 years after the event – on which was handwritten a phone number that Moussaoui had called. So the judge let them play the tapes.