Stateside Trial of Terrorists Raises Interesting, Long-Answered Questions of Public Policy

Friday’s news that Khalid Sheikh Mohammed — the self-professed “mastermind” of the 9/11 attacks — would be tried in New York City did not fail to generate the frenzied blend of misinformation and paranoia that we’ve come to expect from the right. Let’s have a look.

First, there’s Politico (which reads the post-Boumediene release of 30/38 detainees as a sign of Obama’s leniency, rather than Bush’s willingness to jail brown people); and second, of course, RedState (which actually questions the constitutional guarantee of counsel for criminal defendants). Both attempt to build on a fear that detainees will be released into the United States; that the inhumane procedures used in the capture and interrogation of detainees will result in their release; or that their trials will result in the disclosure of classified information.

The latter is simply wrong. Counterterror experts uniformly agree, CIPA has for years provided a leak-proof model for balancing the defendant’s rights against the state’s needs, unsourced scare stories notwithstanding. The first concern is misinformed: the administration has carefully seen to it that even harmless detainees, arrested for their unfortunate proximity to rather than their involvement in violence against the United States, were released abroad, under careful supervision. Any possibility that detainees would be released in the U.S. presumes an incompetence so pervasive, throughout all branches of government, and so thorough, that it’s best treated if it happens, not in advance.

And as for the second — oh, the second. It says more about the opposition than it does about us, I think, that the right is willing to (first) engage in gross human rights abuses, like waterboarding, and (second) use the same practices as a reason not to accord the victims any semblance of humanity going forwards. Unfortunately, they do have a point: coerced confessions would be inadmissible in a criminal trial, as would confessions procured by torture — as they should be, because of their inherent unreliability. But the administration’s decision to try Khalid Sheikh Mohammed, and other detainees, suggests a confidence that they can be convicted on currently admissible evidence.

The conclusion must be that trying terror suspects in criminal court carries a risk — but not one that isn’t manageable and, more importantly, required, as the price of constitutional democracy and civil society. A free people should willingly take up the challenge of living by its own rules, for better or worse. I for one couldn’t be prouder of my city for placing trust in our Constitution, rather than living in fear, with all the misery and violence that entails.


  1. If we shouldn’t try these people in open court, then maybe we should just take them somewhere secret and put bullets in their heads. The whole argument presumes that not one of them is actually innocent and that we do not have confidence in our own justice system. So if we “know” they’re guilty and we’re afraid our system will fail us, we should do the only sure thing and execute them, no questions asked. Right?

    1. If I hesitate to reply “that is why they hate you” then only because I have no illusions about the morality of radical islamists – they would hate the USA even and probably especially if they, purely hypothetically speaking, operated on a basic-human-rights-for-non-US-citizens basis.

      A stance like the one evident above does, however, make the USA no friends among those watching the war on terror from the sidelines, and I am awaiting with trepidation the moment this country will show weakness. Be it after a national bankruptcy or after the economic crisis following a dollar devaluation to avoid the former, be it in ten years or in fifty, there will come a time when the USA will depend on the goodwill of other nations. And then its citizens will have to live without the privilege that comes with belonging to the sole superpower in a world that is exactly as callous towards the rights of the individual as the contemporary US role model has made it.

      1. Exactly. This isn’t about how our enemies view us (“they hate our freedom,” while not technically correct, isn’t exactly wrong, either), but rather about how our friends view us, and about how we view ourselves in the mirror.

  2. Honestly? Yes. If we’re convinced these people are so evil that criminal court and the Constitution are too good for them, keeping them detained indefinitely, and trying them by kangaroo courts that we already know can’t tell innocent from guilty (U.S. v. Parhat, D.C. Cir. 2009), seems like a kind of weak solution. Man up, conservatives!

  3. Any possibility that detainees would be released in the U.S. presumes an incompetence so pervasive, throughout all branches of government, and so thorough, that it’s best treated if it happens, not in advance.

    NOw Ames, lest you forget, neocons find government such anathema to their economic world view that they do, in fact BELIEVE THIS VERY THING about governemtn agencies and government employees. WHy else is State Department securiy overseas contracted to the likes of Blackwater, instead of expanding the Bureau of Diplomatic Security?

  4. Clearly you’re right. Although mercenary armies have been the downfall of every state to use them, ever (New Kingdom Egypt, Ptolemaic Egypt, Carthage, England, etc.), we’re the exception that proves the rule.

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