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.