Even At Guantanamo, A 9/11 Trial Can Serve Justice
It’s official. Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will be tried by a military commission at Guantanamo Bay.
He will not be tried in Manhattan in the shadow of the World Trade Center. He will not be tried before the vast majority of the victims’ families. Nor will he be tried in any federal court. Instead, he will be tried offshore in a military commission process established in 2009 and yet to be tested. It is likely that he will be convicted of conspiring to plan and commit the attacks of 9/11 and that, he, along with his four co-defendants, the other 9/11 detainees at Guantanamo, will be given life sentences, if not the death penalty.
For those of us who have fought vociferously for the use of the federal court system to try terrorism suspects, the Obama administration’s decision is, on its surface, a defeat. The numbers make it clear: Since the Sept. 11 attacks, 174 individuals have been convicted of jihadi-related terrorism in federal court, an 87 percent conviction rate, according to the most recent figures from the NYU Center on Law and Security terrorist trial report card.
From the early 1990s on, the courts have learned how to handle the challenges of terrorism cases, from classified or tainted evidence to the relevance of al-Qaeda’s strategic and tactical goals. The abandonment of the hard-earned professionalism of the judges, prosecutors and defense attorneys is a loss.
But it is not a defeat for justice itself. It is time to give up our long-standing protest and consider the good that can come from these trials — even if they are held at Guantanamo, and even if they are conducted by the military.
In prosecuting Mohammed, we will be trying the individual without whom there presumably would have been no 9/11 attack; the fact that he is secondary to Osama bin Laden in al-Qaeda’s hierarchy does not reduce his guilt. In a sense, he is the Eichmann of the attack, and his trial is no less important than was that of Hitler’s operational director.
Trying Mohammed and his co-conspirators for a crime that took place 10 years ago can only be seen as a positive. It is unfair that the country has waited this long to bring to justice anyone directly linked to 9/11. If part of the purpose of trials is to bring closure to the open wounds that result from wrongdoing, then the trial matters more than the venue, the jurisdiction or even the system itself.
The country’s need for some sort of closure around the Sept. 11 attacks was illustrated in part by the fear of having this trial in Manhattan. Although it is likely that few victims’ families will now be able to watch the proceedings in person, they will know what is happening, and they will be able to achieve some sense of justice and begin to heal.
There is a further benefit. The details of the 9/11 conspiracy remain a mystery to much of the American public. The trial will turn mystery into fact.
At present, we know generally about bin Laden, al-Qaeda’s determination to harm the United States and the failures of U.S. intelligence. But we don’t know details about these five men and their step-by-step intersection with the attacks — details that were outlined in the criminal indictment that was unsealed in New York this past week. The indictment lists the sequence of activities that made up the attacks and highlights the criminality of the conspiracy. Presumably, those facts will be central to the evidence presented at trial at Guantanamo.
The 9/11 attacks were a carefully conceived and coldheartedly implemented plot of immense destruction. They were not the work of men with superhuman powers, as al-Qaeda terrorists are often portrayed. Better knowledge of the story will not diminish the magnitude of the harm, but it will probably diminish the powerful mystique that so often surrounds al-Qaeda. Reducing the organization to flesh-and-blood figures, to individuals rather than a vast and dangerous specter, will be hugely significant in teaching the country that, although al-Qaeda is an enemy that arguably perpetrated the worst crime in American history, it is not invincible.
Admittedly, there are numerous pitfalls that threaten the military commission system. These trials will differ from those in the federal system in several ways. They will rely on a panel of at least five military judges, and the evidentiary standards will not be the same as those in federal court, though it is unlikely that evidence attained by torture will be allowed. There will be broader allowances for hearsay, and access for families to view the proceedings will be more limited.
In addition, there are worries — which would come with any trial — about giving a platform to Mohammed and his ideological pronouncements. Even the possibility of the death penalty is problematic, as he has expressed a desire to be martyred. In addition, the judges must able to keep the defendants and the courtroom under control, and the track record of trials at Guantanamo has fallen well below standards for evidence, legal tactics and courtroom decorum.
The fact is that this trial is going to take place. It’s not ideal. I would have preferred to see the case in the civilian courts. But a military trial is far preferable to the perpetual limbo of indefinite detention without trial — the very definition of Guantanamo.
The trial of Mohammed and his co-conspirators will signify a step forward in the nation’s ability to counter terrorism in a rational fashion. Rather than assume that the proceedings will fall below the standards of federal courts, let’s expect wise judgment in place of retributive justice. Let’s look for an enlightened use of the leeway provided by the Military Commissions Act. Let’s hope that, despite the unique limitations and allowances of that law, the presiding judge will keep this trial as close to the federal standards as possible.
These proceedings, nearly 10 years in the making, are likely to set the precedent for how this country tries terrorism suspects. Although it is outside the federal justice system, this trial could begin to restore the nation’s confidence in its ability to administer justice to even the most vile criminals — a confidence that may one day return trials for detainees in the war on terror to the nation’s long-tested federal courts system.
By: Karen J. Greenberg, The Washington Post, April 8, 2011
Will We Even Notice If The Government Shuts Down?
You’ll still get mail — but won’t be able to visit the Grand Canyon. Here’s a look at what a shutdown feels like:
The probability of a partial government shutdown is increasing with each passing hour. With funding set to expire at the end of Friday, federal agencies have begun drawing contingency plans if President Obama and GOP congressional leaders fail to reach an agreement by then.
The basics of a shutdown, which we last experienced more than 15 years ago, are known: Hundreds of thousands of federal workers will be placed on furlough, and only those deemed essential to the protection of human life and property will continue to work — without pay. But the details are nebulous. What, in practical terms, would a shutdown actually mean to ordinary Americans? Would it disrupt their lives? Would they even notice?
To help answer these questions, we’ve put together the following guide to life under a shutdown:
- Social Security payments will be fine. The Social Security Administration doesn’t receives its funding from annual congressional budget appropriations, but rather through the Social Security Trust Fund, which is financed through payroll taxes. The Social Security Administration will likely continue doling out payments, and employees essential to guarantee those payments will continue working, although new applications may be affected.
- Medicare is safe … for now. Recipients will continue to receive checks for a limited time. However, if the shutdown were to stretch out for several months, payments could be cut off.
- The military will keep operating. Members of the armed services will continue to work, although they wouldn’t receive pay during the shutdown. Officials are rushing to put in place contingency plans to ensure that vital national security and foreign policy operations keep running. Two-thirds of State Department staffers would go on furlough.
- The Veterans Health Administration would be unaffected. The V.A. operates on a two-year funding cycle that began last year, meaning it has already received the money it needs to keep operating.
- Good luck trying to visit national parks and museums. More than 350 federally run park sites, as well as federal museums, such as the Smithsonian and the National Archives, would be closed to visitors. Some museums that also receive private financing, such as the Kennedy Center, will remain open. The cumulative effect of the closures mean a half-million visitors could be turned away this weekend alone, according to some estimates. Security personnel, however, would remain in place.
- Federal courts could conceivably operate unaffected. During past government shutdowns, the courts remained fully open through the use of fees collected by federal bankruptcy courts. Still, an extended shutdown could require furloughs for “court clerks, technical staff, security guards and other court employees.”
- Homeland Security doesn’t stop. Most department employees would continue to work without pay. That includes border patrol, airport security and U.S. Coast Guard patrol. The department’s e-Verify system — which enables employers to check the immigration status of prospective hires — would be suspended.
- You’ll still receive your mail. The U.S. Postal Service, which is funded through customer payments, in large part from postage stamps, will continue to operate as normal.
- You’ll also still have to do your taxes. Income earners are still expected to file their taxes on time, although the IRS will suspend the processing of paper tax forms until government operations resume.
- Federally funded clinical research takes a hit. New research at the National Institutes of Health would be suspended, although ongoing research would continue.
- Tough luck if you need a new passport or visa. Most applications for passports and visas would likely go unprocessed. Such was the case in the ’95-’96 shutdown, when “nearly 30,000 visa applications were unprocessed” and “200,000 applications for passports were ignored.”
- Home loans will take a hit. The Federal Housing Administration could curb new home loan guarantees that private mortgage lenders often require for assurance that loans will be honored.
By: Peter Finocchiaro, Salon, April 6, 2011
On Health Care, Justice Will Prevail
The lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.
But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.
Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?
Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.
In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.
The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.
Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.
Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.
Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.
Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.
It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.
There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.
By: Laurence H. Tribe, Op-Ed Contributor, New York Times: Professor, Harvard Law School and author of “The Invisible Constitution”, February 7, 2011
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