I was out of pocket for a few days visiting the folks in Alabama and missed commenting on a few stories. Most notable among these was Friday’s announcement that five Guantanamo Bay detainees, including 9/11 mastermind Khalid Sheikh Mohammed, would be tried in New York.
This one’s a real head scratcher, in that I see no upside and lots of downside.
First, these men are not citizens of the United States. Second, they’re accused war criminals. They simply should not be tried in U.S. civilian courts. Rather, they should either be held accountable in a Nuremberg-style international forum or treated as war criminals by a U.S. military tribunal under the mechanisms provided by Congress and approved by the Supreme Court.
Aside from the virtual certainty that the trial will devolve into a media circus, there’s an incredibly good chance that Mohammed and his comrades will go free. The fact that KSM was repeatedly waterboarded would seem to taint any subsequent evidence, including his own confession.* [See update in footer]
As regular readers know, I oppose torture as a means of intelligence gathering on moral, legal, and practical grounds. Further, I think the Bush administration went too far in refusing to grant even minimal due process rights to the Guantanimo detainees, who at very least were entitled to present evidence that they were falsely imprisoned because of mistaken identity.
We took the mantra that counterterrorism was a matter of war rather than law enforcement too far, overcorrecting for the previous policy which went too far in the other direction. But the fact remains that KSM and the others were held under rules based on their status as terrorists rather than ordinary criminals. To pretend now that they are they equivalent of members of an inner city street gang borders on farce.
See also my follow-up, “Terrorism vs. Crime.”
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* UPDATE: I’ve clarified this point in subsequent posts but feel I should note here as well that this declaration is wildly incorrect. It was not fear-mongering but rather a mistaken belief that the fact that KSM has been horribly mistreated and had his rights to due process, speedy trial, and counsel violated for years would lead to a judge throwing the charges out. Alex Knapp, my colleague and an attorney, and others have assured me that the law does not work this way in practice. Alex cites the case of Jose Padilla, the American citizen who was illegally held as an enemy combatant for years and nonetheless convicted.
