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
McCarthyism Revisited: Peter King’s Modern-day Witch Hunt
“There is nothing radical or un-American in holding these hearings,” Rep. Peter King (R-N.Y.) claimed Thursday as he launched his McCarthyite probe of American Muslims. He could not have been more wrong. If King is looking for threats to our freedoms and values, a mirror would be the place to start.
Here’s why. Imagine a young man, a Muslim, who changes in troubling ways. His two best friends become concerned, then alarmed, as the young man abandons Western dress, displays a newfound religiosity and begins to echo jihadist rhetoric about the decadence of American society. Both friends suspect that the young man has become radicalized and might even attempt some kind of terrorist attack.
One friend is Muslim, the other Christian. Does the Muslim friend have a greater responsibility than the Christian to contact the authorities? By the logic of King’s witch hunt, he does.
The Homeland Security Committee hearings that King has convened are billed as an inquiry into “The Extent of Radicalization in the American Muslim Community and That Community’s Response.” In other words, King suspects that the Muslim community is somehow complicit. Individuals of one faith are implicated; individuals of another faith are not.
As Rep. Keith Ellison (D-Minn.), one of two Muslims in Congress, said in his moving testimony, King’s premise assigns “collective blame” to American Muslims. “Demanding a community response . . . asserts that the entire community bears responsibility,” Ellison said.
In his pugnacious opening statement, King noted that his plan to hold these hearings had been criticized by “special-interest groups and the media,” which he said had gone into “paroxysms of rage and hysteria” at the prospect. “To back down would be a craven surrender to political correctness,” he said. In case someone missed the point, King later said it was our duty to “put aside political correctness and define who our enemy truly is.”
King asserted that “this committee cannot live in denial.” He then went straight there – into denial – by paying no heed to the witness best situated to answer the committee’s question.
Los Angeles County Sheriff Lee Baca testified in opposition to King’s premise, citing figures demonstrating that radical, extremist acts of crime are committed by non-Muslims as well, and that seven of the past 10 known terrorist plots involving al-Qaeda have been foiled in part by information provided by Muslim Americans. Baca said his officers have good, productive relationships with Muslim leaders and citizens. Law enforcement officials from other jurisdictions where there are large Muslim communities could have given similar testimony, had they been invited.
King is trying to peddle the hooey that moderate Muslims do not speak out against extremism. It took Rep. Sheila Jackson Lee (D-Tex.) to note the irony that among the committee’s witnesses were two devout Muslims – one Syrian American, the other Somali American – who were there to speak out, quite loudly, against extremism.
King, in effect, was demanding to know why he didn’t see what was taking place before his eyes. Perhaps he was distracted by the need to maintain constant vigilance for any hint of political correctness.
That’s really what King’s grandstanding is all about. The purpose of these hearings isn’t to gather information. If it were, officials of the FBI and the Department of Homeland Security would have been asked to testify. In addition to inviting Minneapolis-based Abdirizak Bihi, a Somali American whose nephew was recruited by the terrorist organization al-Shabab, King could have brought in police from the Twin Cities to testify about cooperation by the Somali immigrant community.
King’s intent is theatrical, not substantive; he’s not trying to elicit facts, he’s inviting catcalls – and cheers.
It should not be so, but Islamophobia is a powerful force in American politics. There are those who will applaud King for associating the phrase “American Muslim community” with the phrase “who our enemy truly is.”
But decency is a powerful force, too. The hearing’s indelible moment came when Ellison broke down in tears. He was telling the story of Mohammad Salman Hamdani, a young Muslim who rushed into the World Trade Center to try to rescue victims just before the towers collapsed. His remains were found in the rubble.
Hamdani was not just a Muslim, Ellison said, fighting to choke out words that no one could dismiss as politically correct. He was “an American who gave everything for his fellow Americans.”
By: Eugene Robinson, Op-Ed Columnist, The Washington Post, March 10, 2011
Rep Peter King, Flailing After Muslims
It has often been the case in America that specific religions, races and ethnic groups have been singled out for discrimination, demonization, incarceration and worse. But there have always been people willing to stand up boldly and courageously against such injustice. Their efforts are needed again now.
Representative Peter King, a Republican from Long Island, appears to harbor a fierce unhappiness with the Muslim community in the United States. As the chairman of the powerful Homeland Security Committee, Congressman King has all the clout he needs to act on his displeasure. On Thursday, he plans to open the first of a series of committee hearings into the threat of homegrown Islamic terrorism and the bogus allegation that American Muslims have failed to cooperate with law enforcement efforts to foil terrorist plots.
“There is a real threat to the country from the Muslim community,” he said, “and the only way to get to the bottom of it is to investigate what is happening.”
That kind of sweeping statement from a major government official about a religious minority — soon to be backed up by the intimidating aura of Congressional hearings — can only serve to further demonize a group of Americans already being pummeled by bigotry and vicious stereotyping.
Rabbi Marc Schneier, the president of the Foundation for Ethnic Understanding, was among some 500 people at a rally in Times Square on Sunday that was called to protest Mr. King’s hearings. “To single out Muslim-Americans as the source of homegrown terrorism,” he said, “and not examine all forms of violence motivated by extremist belief — that, my friends, is an injustice.”
To focus an investigative spotlight on an entire religious or ethnic community is a violation of everything America is supposed to stand for. But that does not seem to concern Mr. King. “The threat is coming from the Muslim community,” he told The Times. “The radicalization attempts are directed at the Muslim community. Why should I investigate other communities?”
The great danger of these hearings, in addition to undermining fundamental American values, is that for no good reason — nearly a decade after the terrible attacks of Sept. 11, 2001 — they will intensify the already overheated anti-Muslim feeling in the U.S. There is nothing wrong with the relentless investigation of terrorism. That’s essential. But that is not the same as singling out, stereotyping and harassing an entire community.
On Monday, I spoke by phone with Colleen Kelly, a nurse practitioner from the Bronx whose brother, William Kelly Jr., was killed in the attack on the World Trade Center. She belongs to a group called September 11th Families for Peaceful Tomorrows and is opposed to Mr. King’s hearings. “I was trying to figure out why he’s doing this,” she said, “and I haven’t come up with a good answer.”
She recalled how people were stigmatized in the early years of the AIDS epidemic and the way that stigmas become the focus of attention and get in the way of the efforts really needed to avert tragedy.
Mr. King’s contention that Muslims are not cooperating with law enforcement is just wrong. According to the Triangle Center on Terrorism and Homeland Security, an independent research group affiliated with Duke University and the University of North Carolina, 48 of the 120 Muslims suspected of plotting terror attacks in the U.S. since Sept. 11, 2001, were turned in by fellow Muslims. In some cases, they were turned in by parents or other relatives.
What are we doing? Do we want to demonize innocent people and trample on America’s precious freedom of religion? Or do we want to stop terrorism? There is no real rhyme or reason to Congressman King’s incoherent flailing after Muslims. Witch hunts, after all, are about seeing what kind of ugliness might fortuitously turn up.
Mr. King was able to concoct the anti-Muslim ugliness in his 2004 novel, “Vale of Tears,” in which New York is hit yet again by terrorists and, surprise, the hero of the piece is a congressman from Long Island. But this is real life, and the congressman’s fantasies should not apply.
America should be better than this. We’ve had all the requisite lessons: Joe McCarthy, the House Un-American Activities Committee, the demonization of blacks and Jews, the internment of Japanese-Americans, and on and on and on. It’s such a tired and ugly refrain.
When I asked Colleen Kelly why she spoke up, she said it was because of her great love for her country. “I love being an American, and I really try to be thankful for all the gifts that come with that,” she said. But with gifts and privileges come responsibilities. The planned hearings into the Muslim community struck Ms. Kelly as something too far outside “the basic principles that I knew and felt to be important to me as a citizen of this country.”
By: Bob Herbert, Op-Ed Columnist, The New York Time, March 7, 2011
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