Over the past few days, an increasing number of New York politicians, to everyone’s shame, have followed Governor Paterson’s cowardly example and called for President Obama to select another site — or a non-Article III court — for the trial of alleged 9/11 mastermind, Khalid Sheikh Mohammed (KSM). I’ll cut some slack to Mayor Bloomberg and my State Senator, Daniel Squadron, who appear to be motivated by cost and concern for disruptions to the daily life of their constituents. That’s legitimate: plus, Dan Squadron’s just a great guy. But woe to Lindsey Graham (R-S.C.) and Diane Feinstein (D-CA) whose concerns are either nakedly political, or, in the case of Graham, outright lazy:
Criminalizing the war, the whole process, I think could bring this administration down because it makes no sense to most Americans.
Then explain it to them. As an elected official, that’s your job.
Unfortunately, I’ve recently heard, thirdhand but through the right channels, that Feinstein and Graham may be dangerously close to getting their way, in the form of a Senate bill somehow blocking the President’s authority to try KSM in New York, or in any civil court. Such a bill would likely take the form of “jurisdiction stripping,” a politically and legally controversial process by which Congress removes federal jurisdiction from the courts. A localized jurisdiction stripping bill — i.e., “New York [Second Circuit?] courts shall lack jurisdiction to…” — may bump up against what law professors call “external limits” on Congress’ control of the federal judiciary, but a total removal of federal jurisdiction would likely square with existing law. Recall that Boumediene v. Bush, 553 U.S. ___ (2008) requires that Guantanamo detainees be afforded the extraordinary remedy of habeas corpus — which provides limited access to federal court, but is by no means a full criminal trial. A jurisdiction stripping bill that left habeas intact could deal President Obama the political blow for which it’s so clearly designed, and dance around existing law. According to my source, they have the votes in the Senate.
Not to oversell the issue, but this is objectively bad for democracy. The notion that civil courts are inappropriate for terror trials may stem from, as conservatives wish to paint it, a surfeit of patriotism, and a conviction that anything but a bullet in the head is too good for terrorists, but lurking in the background is a lack of faith in the American judicial system, and a healthy dose of terror. Most of the rhetoric on this issue is geared towards making KSM into not just a monster, which he surely is, but a monster whose very words would lay low the republic. We should all hope we’re made of sterner stuff than that. More than a few madmen have wound their way through the federal court system, and we’ve lasted this long. What’s one more? He’s just a man.
Sadly, though, we should’ve seen this push coming. For the Republican Party, the stakes surrounding the KSM trial couldn’t be higher. They’ve spent decades (think Joe McCarthy) building a national security platform on the theory that civilian institutions don’t work in wartime, and that “wartime” includes any national security crisis that occurs on a Republican president’s watch. Should the KSM trial proceed to an orderly conclusion, that entire line of argumentation would, in a single moment, dissipate. If push comes to shove, we, the Democratic Party, will be up against the momentum of fity years of Republican rhetoric. But it’s a fight we have to win, if we’re to trust ourselves and our country once more.