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Terrorist Trials November 16, 2009

Posted by Dwight Furrow in Criminal Justice, Current Events, Dwight Furrow's Posts.
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Last week, the Justice Department announced their decision to try Khalid Shaikh Mohammed and four others connected to the 9/11 attacks in federal court in New York. Predictably, the announcement has sent conservatives into paroxysms of melodramatic hand-wringing. Here is Joe Leiberman:

“The terrorists who planned, participated in and aided the Sept. 11, 2001, attacks are war criminals, not common criminals,” Lieberman said in a statement. “The individuals accused of committing these heinous, cowardly acts of intentionally targeting unsuspecting, defenseless civilians should therefore be tried by military commission rather than in civilian courts in the United States.”

And here is Rudy Guiliani:

“I do not understand why they cannot try Khalid Sheikh Mohammed in a military tribunal.  That also would demonstrate that we are a nation of laws.  That is the way we have tried enemy combatants in the past, whether it was the Second World War or the [U.S.] Civil War.  In this particular case, we are reaching out to give terrorists a [legal] benefit that is unnecessary.  In fact, Khalid Sheikh Mohammed, when he was first arrested asked to be brought to New York.  I did not think we were in the business of granting the requests of terrorists,” he said

I don’t understand what the problem is.

Zacarias Moussaoui, Ramzi Ahmed Yousef, Sheik Omar Abdel Rahman, Jose Padilla, Ali Saleh al-Marri, and Masoud Khan are just a partial list of dangerous terrorists who we have tried and convicted of crimes in U.S courts. None of them have escaped from their jail cells or gained some sort of propaganda victory as the result of their trials.

And I don’t remember conservatives complaining when these trials were announced.

The conservative position seems motivated by nothing but the belief that our principles aren’t worth defending, our justice system is too incompetent, or that this collection of misfits and fanatics have magical powers. There is nothing rational about these worries.

As Glenn Greenwald wrote:

[T]he Right’s reaction to yesterday’s announcement — we’re too afraid to allow trials and due process in our country — is the textbook definition of “surrendering to terrorists.” It’s the same fear they’ve been spewing for years. As always, the Right’s tough-guy leaders wallow in a combination of pitiful fear and cynical manipulation of the fear of their followers. Indeed, it’s hard to find any group of people on the globe who exude this sort of weakness and fear more than the American Right.

People in capitals all over the world have hosted trials of high-level terrorist suspects using their normal justice system. They didn’t allow fear to drive them to build island-prisons or create special commissions to depart from their rules of justice. Spain held an open trial in Madrid for the individuals accused of that country’s 2004 train bombings. The British put those accused of perpetrating the London subway bombings on trial right in their normal courthouse in London. Indonesia gave public trials using standard court procedures to the individuals who bombed a nightclub in Bali. India used a Mumbai courtroom to try the sole surviving terrorist who participated in the 2008 massacre of hundreds of residents. In Argentina, the Israelis captured Adolf Eichmann, one of the most notorious Nazi war criminals, and brought him to Jerusalem to stand trial for his crimes.

It’s only America’s Right that is too scared of the Terrorists — or which exploits the fears of their followers — to insist that no regular trials can be held and that “the safety and security of the American people” mean that we cannot even have them in our country to give them trials. As usual, it’s the weakest and most frightened among us who rely on the most flamboyant, theatrical displays of “strength” and “courage” to hide what they really are. Then again, this is the same political movement whose “leaders” — people like John Cornyn and Pat Roberts — cowardly insisted that we must ignore the Constitution in order to stay alive: the exact antithesis of the core value on which the nation was founded. Given that, it’s hardly surprising that they exude a level of fear of Terrorists that is unmatched virtually anywhere in the world. It is, however, noteworthy that the position they advocate — it’s too scary to have normal trials in our country of Terrorists — is as pure a surrender to the Terrorists as it gets.

As to the principles of justice involved, these people are not prisoners of war.

Prisoners of war are uniformed members of states who are party to the Geneva Conventions. Prisoners of war are not necessarily criminals but have been captured on the battle field and can be held until the war is over. The procedures that govern treatment for prisoners of war differ from criminal trials because no crime has been alleged and the rights of criminal defendants are not at stake.

By contrast, the 9/11 terrorists are not uniformed members of states and more importantly they have allegedly committed heinous crimes on U.S soil. Thus, they are properly considered criminal defendants.

But anyone accused of a crime has a right to a jury trial, competent representation, and rules of evidence that exclude hearsay, evidence obtained by excessive coercion or torture, etc. In the U.S., regardless of citizenship, we do not deprive someone of life or liberty without due process, which the special military tribunals set up by the Bush Administration did not provide, according to the Supreme Court. We don’t suspend due process procedures when the crimes are especially heinous.

There was a time in this country, before conservatism was reduced to reactionary authoritarianism, when these principles of basic justice would have been uncontroversial.

Can we please return to that time? That is my conservative thought for the day.

book-section-book-cover2 Dwight Furrow is author of

Reviving the Left: The Need to Restore Liberal Values in America

For political commentary by Dwight Furrow visit: www.revivingliberalism.com