Friday the Thirteenth – always an unsettling day – and on the one this November, Attorney General Eric Holder announced that the five men accused of conspiring to commit the 9/11 attacks – and most importantly the alleged mastermind, Khalid Sheikh Mohammed, who actually says he was the mastermind, if you ask him under certain conditions – will be prosecuted in United States Federal Court – in the United States itself, in lower Manhattan in fact – actually about ten blocks northeast of Ground Zero. And yes, Holder was clear about what he was doing – “I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures.”
That should have been that – done. Holder has the goods on them, no matter what evidence is tossed out as the tainted fruits of torture or whatever, or he wouldn’t have called for this trial, or trials. But of course the reaction was what you would expect – everyone was striking a pose. The tough guys knew these guys should just be strung up now, and there were the defenders of the rule of law, who believe that the rule of law is what makes us who we are and we shrug it off at our existential peril, and these trials should proceed. And there were the legal scholars who worried about the vague line between criminal conspiracy and acts of war, which is more unclear now than it ever has been, what with these free-floating international terrorist organizations not affiliated in the slightest with any nation-state, which is something that should be thought through before we do anything rash. All three groups seemed to be seeking our awe and admiration, or demanding it.
But everyone had chosen sides, more according to their temperament rather than any issues of policy or public safety or how the law worked here, what with all that stuff about what the constitution guarantees and just who is guaranteed what, and in what circumstances, and when. Mayor Bloomberg said he was onboard – his police force could handle any security issues, and after all “it is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered.” His police chief puffed up his chest and said New York’s Finest could handle anything that came up – no one messes with them. New Yorkers were split on the matter – forty-five percent fully supporting a trial in the city, forty-one percent saying it was a really bad idea, and fourteen percent undecided. The margin of error was four points, so that was a wash – no consensus.
And when there’s no consensus, issues never die. People argue endlessly, or more precisely, they quarrel.
There’s a reason for that. Argument presupposes logic and involves the clear exposition of ideas, and an array of verifiable facts supporting those ideas, to demonstrate their validity. Quarrelling is just posing, a clash of temperaments. As G. K Chesterton one said, generally people quarrel because they cannot argue. It’s easier. Or to move from the general to the specific, perhaps they don’t care for processes of argument – they find it distasteful. Heck, some people just don’t like anchovies, or radishes. Or perhaps they know they don’t have that particular skill set. There’s no point in embarrassing yourself. Or perhaps they know that there are more votes to be had by copping an attitude, as their constituency finds logical argument, as a process, puzzling, and, given their emotions about this issue or that, deeply offensive. If you want to hang onto your position of power you do consider that. There’s no percentage in logical argument. It offends people, and often makes them feel insecure and inadequate – it can undermine your deeply felt emotional surety real fast. No one likes that. And shallow demagogy does win elections, so even against your inclinations, you use it.
And the matter of the New York trials, John Shadegg, the Republican congressman from Arizona, took that out for a spin. On the Monday following the Holder announcement he was so upset with Mayor Bloomberg saying that New York City is up the challenge of trying the 9/11 plotters that he was basically taunting the mayor with the prospect of his daughter being kidnapped by al Qaeda:
“I saw the mayor of New York said today, ‘We’re tough. We can do it.’ Well, Mayor, how are you going to feel when it’s your daughter that’s kidnapped at school by a terrorist?” Shadegg said.
“How are you going to feel when it’s some clerk – some innocent clerk of the court – whose daughter or son is kidnapped? Or the judge’s wife? Or the jailer’s little brother or little sister? This is political correctness run amok,” he continued.
Now Talking Points Memo is based in New York, in painfully trendy Chelsea, just north of Ground Zero, and one of their readers offers this:
Let me get this straight: we kept KSM and his buddies in Gitmo for eight years, no trial, no process, under harsh conditions including torture – and now that we’re finally giving them a trial in civilian court, NOW Al-Qaeda wants to retaliate? NOW they’re going to kidnap the mayor’s daughter and demand that KSM be released? It doesn’t even make sense on its own terms.
Well, Shadegg apologized for his remarks about a terrorist trial in the city leading to Mayor Michael Bloomberg’s daughter being kidnapped – “I apologize for the insensitivity of my remarks with respect to the mayor or his family; however, I think it is important to note that this decision involves potential risk to innocent people.”
He knew he stepped over the line, but he needs to maintain the attitude – he’s a tough guy, and he’s afraid, and everyone should be afraid. No, that cannot be right. Ah! – Obama and his crew are going to get us all killed, so we should be very afraid, or something. He finds that logical, but as for the array of verifiable facts supporting that idea, he offers rather fanciful hypothetical scenarios. Bloomberg does seem worried. He said he would not dignify the congressman’s remark with a comment. That’s pretty much saying that if you want to argue the issue, fine, but if you just want to quarrel, using nonsense, go away, as everyone here is busy right now and has no time for such silliness.
And Ben Armbruster at Think Progress has an interesting video clip from that same evening – on Fox News, the network’s top legal analyst, Judge Andrew Napolitano, mixed it up with Bill O’Reilly on this issue. Armbruster notes that the Fox News personalities have been up in arms over this – Karl Rove, on their payroll now, called Holder’s plan part of a “long-standing plot” by the Obama administration’s “left-wing lawyers who do not love America.” And Armbruster also notes that Judge Napolitano has been known to disagree with Fox’s narratives on legal issues — yep, that was torture, yep, the wiretapping thing was unconstitutional, and Guantanamo too. And he seems to have this notion that the accused has the constitutional right to be tried in the place where the crime has been committed – like, it’s in there.
Of course O’Reilly copped an aptitude. He shouted out “I don’t care about the Constitution!”
O’REILLY: So why is he entitled to come to New York City to be tried in the civilian criminal court if he’s arrested in Pakistan?
NAPOLITANO: Because the document you don’t want me to talk about says when the government is going to prosecute you, it must do so in the place where the alleged harm was caused.
Armbruster also notes that later in the program, Brit Hume said he’d “been scouring the columns of various people opining about this to see if somebody makes a good argument for doing it.” He said he hadn’t heard one. Hume then noted Napolitano’s opinion and said, “I’m not certain I agree with that.”
Of course Olbermann at MSNBC had fun with this exchange:
NAPOLITANO: There was no declaration of war.
O’REILLY: All right, so, because there is no declaration of war, you say that any terror – and it fits the bill, right? Surely 9/11 fits the bill of a terrorist act…
NAPOLITANO: But it is not I who is saying it. It is the Constitution that is saying it.
O’REILLY: I don’t care about the Constitution.
NAPOLITANO: I do.
O’REILLY: The Constitution isn’t here. You’re here. Don’t be a pinhead!
Yep, most people quarrel because they cannot argue. A friend, a prominent attorney now, had Napolitano for Constitutional Law at Seton Hall Law School. He was impressed. Napolitano is an oddball, yes, but he knows the constitution inside and out. Brit Hume can scan all the conservative opinion columnists he can find, to assemble that array of verifiable facts supporting his idea that Napolitano is dead wrong. Good like with that. Actual argument can be difficult. It’s harder than you think.
But Brit Hume has the public on his side, according to CNN:
Two-thirds of Americans disagree with the Obama administration’s decision to try Khalid Sheik Mohammed in a civilian court rather than a military court, according to a new national poll.
But six in 10 people questioned in a CNN/Opinion Research Corporation survey released Monday say that the alleged mastermind of the 9/11 attacks should be tried in the United States, as the administration plans to do, rather than at a U.S. facility in another country.
The poll indicates that 64 percent believe Mohammed should be tried in military court, with 34 percent suggesting that he face trial in civilian court. Six in 10 people questioned say Mohammed should be tried stateside, with 37 percent calling for the trial to take place at a U.S. facility in another country.
“The decision to bring Khalid Sheikh Mohammed in front of a civilian court is universally unpopular – even a majority of Democrats and liberals say that he should be tried by military authorities,” says CNN Polling Director Keating Holland. “Despite that, most Americans say that he will get a fair trial in the U.S.”
That’s odd – give the guy a fair trial, here, even in New York if you want, but don’t make it a civilian trial. We may not be a war, officially, but it feels like one, so go with your feelings, not the law.
Josh Marshall, the editor and founder of Talking Points Memo, is puzzled by all this:
A lot of people – mainly but by no means exclusively Republicans – were on the Sunday shows yesterday denouncing the administration’s decision to jail and try KSM and four accused 9/11 plotters in New York City. And most of the criticism comes under three distinct but related arguments: 1) civilian trials give the defendants too many rights and protections and thus create too big a risk they’ll get acquitted and set free, 2) holding the prisoners and trial in New York City puts the city’s civilian population at unnecessary risk of new terror attacks, and 3) holding public, civilian trials will give the defendants an opportunity to mock the victims, have a platform to issue propaganda or gain public sympathy.
Yes, those are, broadly, the arguments being presented, and Marshall says that if you treat them as arguments, the first two seem to be understandable but basically wrong on the facts. The third he finds “difficult in some ways even to understand and seems grounded in bad political values or even ideological cowardice.”
But he dives in anyway, starting with the idea that civilian trials have far too many safeguards and create too big a risk that these guys will go free:
This does not hold up to any scrutiny for two reasons. First, remember all those high-profile terror prosecutions where the defendants went free? Right, me neither. It just does not happen. The fact is that federal judges are extremely deferential to the government in terror prosecutions. And national security law already gives the government the ability to do lots of things the government would never be allowed to do in a conventional civilian trial. (People who really think that this is an issue seem to base their understanding of federal criminal procedure on watching too many Dirty Harry movies, which, as it happens, I’m actually a big fan of. But remember, they’re movies.) KSM is not going to be able to depose or cross-examine CIA Director Leon Panetta or President Bush or Vice President Cheney or anyone else.
The possibility that a judge would suppress evidence obtained through torture is a real one. But Eric Holder made clear he and his prosecutors believe they have more than enough untainted evidence to obtain convictions. So that should not be an issue.
Finally, even in the extremely unlikely case that any of the five were acquitted of these charges the government has a hundred other things it can charge them with. Indeed, the government could as easily turn them over to military commissions or indefinite detention post-acquittal as it can do those things with them now. That may not make civil libertarians happy. But it is the nail in the coffin of any suggestions that these guys are going to be walking out of the federal courthouse in lower Manhattan saying they’re headed to Disneyland. It’s simply not going to happen.
That’s an array of verifiable facts. And it’s not an array of hypothetical fears:
We can imagine a different set of facts, where all the most damning evidence was obtained through torture and acquittal seemed at all a reasonable possibility. In that case there might be a real question as to whether it was worth taking the risk when military commissions which have been used in the past are available. But this “risk” simply doesn’t appear to exist so you do not even need to get to the constitutional or deeper rule-of-law questions.
As for the question of danger to the people of New York City, Marshall argues that just on the facts he doesn’t think al Qaeda terrorists are holding off on attacking New York now “because they lack or incentive or feel we haven’t pushed things far enough yet to merit another hit.” You just need to look at things logically:
The symbolic value of hitting New York might increase a bit. But it’s already so high for these people that the increase seems notional at best. And more to the point, I choose to trust the people already charged with keeping the city safe.
But he senses that logic isn’t the issue here:
On a more general level, however, since when is it something we advertise or say proudly that we’re going to change our behavior because we fear terrorists will attack us if we don’t? To be un-PC about it, isn’t there some residual national machismo that keeps us from cowering even before trivially increased dangers? As much as I think the added dangers are basically nil, I’m surprised that people can stand up as say we should change what we do in response to some minuscule added danger and not be embarrassed.
And the really illogical thing is that we’ll be giving these guys a forum:
I don’t see what factual dispute there is here. And at some level I don’t even understand the argument. Logically I understand it; I understand what they’re saying. But it’s so contrary to my values and assumptions that at some level I don’t get it. I cannot imagine anything KSM or his confederates would say that would diminish America or damage us in any way.
Are we really so worried that what we represent is so questionable or our identity so brittle? (Some will say, yes: torture. The fact that some of these men were tortured is a huge stain on the country. But it happened and it’s known about. To the extent that it is a stain it is the kind of stain that is diminished not made worse by an open public accounting.) Does anyone think that Nuremberg trials or the trial of Adolph Eichmann in Jerusalem in 1961 or the war crimes trials of Slobodan Milosevic and others at The Hague advanced these men’s causes? Or that, in retrospect, it would have been wiser to hold these trials in secret?
At the end of the day, what are we afraid these men are going to say?
And here’s his logic:
What we seem to be forgetting here is that trials are not simply for judging guilt and meting out punishment. We hold trials in public not only because we want a check on the government’s behavior but because a key part of the exercise is a public accounting and condemnation of wrongs. Especially in great trials for the worst crimes they are public displays pitting one set of values against another. And I’m troubled by anyone who thinks that this is a confrontation in which we would come out the worse.
But the fear of all that might happen feels so good. It’s thrilling, even if devoid of any logic. How can you argue with that?
But we will have the trials, and Andrew Sullivan is simply glad we finally have a president not governed by fear:
I do not believe for one moment that this case was brought in a civilian court without sufficient evidence to convict KSM of criminality to put him away for good. But what an open civilian case will also do – and it’s why a war criminal like John Yoo is so apoplectic – is reveal the extent to which the brutal torture of KSM was unnecessary, and led to the government’s inability to prosecute him to the full extent of the law.
It will be a civics lesson to America and the world. It will show the evil of terrorism and the futility and danger of torture. It will be a way in which Cheney’s torture regime can be revealed in all its grotesque excess at the same time as KSM’s vile religious extremism is exposed for its murderous nihilism. That all this will take place in New York – close to where the mass murder took place – is a particularly smart touch.
This will, then, be a Nuremberg-style event – because it will pit al Qaeda barbarism against the cooling, calm and resolute nature of real Western justice in the clear light of history. But it does one more critical thing. It reveals a new confidence in ourselves and the Western way of life.
And Sullivan says our pervious lack of self-confidence is obvious:
When you listen to the Fox News right speak about this, they reveal amazing levels of fear. They have been truly spooked by these men with long beards and chilling eyes. They are so scared of them they are willing to drop any and all legal principles that the West has historically used with respect to mass murderers. Their fear brought them to institute torture, and to engage in mass brutality against prisoners of war in every theater of combat in a manner that will tragically taint the honor of the US military for a very long time. It led them to establish Gitmo, to create for the world a reverse symbol of the Statue of Liberty, and imprint it on the minds and in the consciences of an entire generation of human beings, whose view of America will never be the same.
And he seems to have written that before he knew Bill O’Reilly had proudly declared he just didn’t care about that damned constitution. But Sullivan says anyone can see the damage caused by illegal fear was already done:
It made speedy prosecution of any of those who allegedly plotted and planned 9/11 impossible – and will make actual prosecution of any of them extremely hard. It turns out, then, that the primary (if not the only) thing we had to fear – was fear itself. It was our fear that gave al Qaeda so many propaganda victories.
And it is the refusal to be afraid that reflects the decision to bring this fanatic mass murderer back to the scene of the crime, to remind the world, all these years later, of why he is on trial, to restore a patriotic pride in the system we have, a system which it is al Qaeda’s goal to destroy.
In short, this is “the best symbolic answer to 9/11 – a trial, with due process, after tempers have calmed somewhat, that exposes this evil for all it truly was.” And also reveals “the tragedy of an American government that lost its nerve and has now, under a new president, regained it.”
Kevin Drum agrees, with less hyperbole:
It’s not as if the right’s reaction to these trials is a surprise, not after listening to a year’s worth of wailing about death panels, socialism, birthers, dithering, Chicago thugs, and more. The right wing base today doesn’t just oppose Obama, they’re absolutely terrified of everything he stands for.
But they brought the New York trials on themselves. I’m not categorically opposed to using military tribunals in cases like this, but that’s hardly an option anymore thanks to the Bush administration’s contemptuous efforts to turn them into obvious kangaroo courts. Hell, even military lawyers couldn’t stomach them. As for an international court, that would be fine too except that conservatives have blocked every attempt to make the United States a party to them. The only real choice left, if you want ensure something within shouting distance of a fair trial, is a civilian court.
And he also has no use for hypothetical scare stories:
But does this mean there’s any chance they could get off? In theory, sure. That’s the whole point of having a fair trial. In practice, forget it. The evidence against KSM and the others is too strong. A year from now, they’ll all be convicted, New York City will be intact, and we’ll get on with our lives.
And the right will move on to being outraged and terrified about something else.
Heck, at Foreign Policy, Paul Cruickshank thinks that if that nasty Osama guy is ever captured we should put him on trial:
It would be nothing short of a watershed moment, doing much to restore the public’s confidence in American institutions and the rule of law after years of being told that they were too quaint for the challenges of a new era. And it would go a long way, too, in restoring the moral high ground for the United States in the court of global opinion.
But that’s too logical. People would rather pose and quarrel, and quarrel and pose, and tell scary stories around the campfire. It’s more fun, and easier than formal argumentation.