The decision, announced yesterday, that Khalid Sheikh Mohammed will not stand trial in New York or any other corner of the United States hardly came as a surprise. He will be tried before a military tribunal at Guantanamo Bay instead. The Obama administration gave up fighting for its own policy a long time ago. Sometimes retreats are sensible. Sometimes it’s necessary to acknowledge blunders or superior firepower. But even allowing for those considerations – and a Congress* more than happy to demagogue the issue – there’s a tinge of shame to this retreat.
Power need not corrupt but it always changes those who hold it. Obama’s approach to terrorism and justice once seemed robustly optimistic and liberal. That seems a long time ago now. Most of the Bush-era counter-terrorism apparatus remains and so too, it is now confirmed, does the notion that terrorists cannot be tried in civilian courts. Some of this is a matter of necessity, some the product of the changed perspective – and responsibility – that follows victory and some of it is a capitulation to hysteria, fear-mongering, ignorance and stupidity. Trying KSM before a Military Commission at Guantanamo Bay falls into the latter category. Since the administration lost the argument it’s a tired acceptance of political reality but it also feels craven and more just a little bit sad.
The evidence is not the problem. Even allowing that some of it must be inadmissable and allowing that other parts of the cae against KSM are too sensitive to be revealed in open court, there is enough evidence to convict KSM and his accomplices many times over. Nor is there any reason to suppose that a New York jury – or one located anywhere else – would have been unable to decide the matter for themselves. The notion of granting terrorists “rights” scarcely comes into play at all.
Of course terrorism is not always subject to the same rules as other crimes. But as a general rule the idea that terrorists should be treated as “ordinary” criminals is greatly preferable to the contrary presumption that their cases are so special or so dangerous they preclude the possibility of a normal criminal trial. This is true, I think, even in a case such as KSM’s when he can reasonably be considered an “enemy combatant”.
Previously, including during the Bush administration, it was possible to try high-profile cases in the civilian courts. Richard Reid, the thwarted shoe-bomber, was read his rights no fewer than four times. He was tried before a civilian court and received a life sentence. So too did Zacarias Moussaoui. At the time of his conviction Rudy Giuliani said he was “in awe of our system. It does demonstrate that we can give people a fair trial.” If only Rudy and his chums still enjoyed that kind of confidence in the “system” and what it’s supposed to represent.
So what changed? Nothing much except a new President was elected. But that was all it took. Jane Meyer’s account of the affair, published in the New Yorker last February, makes depressing reading, nowhere more so than when a weary Eric Holder tries to insist that “History will show that the decisions we’ve made are the right ones.” Not any more it won’t.
Worse still and no matter how rigorous the procedures in place at these new, improved military commissions may be the guilty verdict will surely, and avoidably, be seen as tainted. The contrast between a civilian trial and a military court is important, especially whn the verdict is bound to be followed by the death penalty. Sure, the Obama administration inherited a mess but they’ve failed to clean it up – or at least they’ve failed in this case – and they’ve been bullied and blackmailed into submission. Principle and decency are among the casualties. So too, naturally, are “our values”.
The whole affair reeks. It’s the kind of stupid thing one would expect from a shabby, clapped-out regime unable to appreciate either justice or public relations. The United States doesn’t like to think of itself in those terms but this decision, politically prudent and realistic as it may be, marks another moment when the rhetoric of American exceptionalism is revealed as just so much baloney.
Announcing this capitulation to the mob on the same day as opening your campaign for re-election is a nice touch too. Only a cynic would suggest it weakens the potency of any promises made between now and polling day next year. Right?
*Yes I know that Congress, via the current Defense Appropriations bill, has made it impossible to fund trials for Gitmo detainess in the continental United States. As I say, this defeat has been in the works for months but it is still a poor piece of business.
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