Thursday, February 11, 2010

Tinker, Tailor, Soldier, Sailor

The KSM trials will not be held in New York.

This much is not news, it was inevitable. Even if the trial had started in the city, a change of venue request would have been considered and resolved before the opening arguments were given, and the process for finding another county in New York in which to hold the trial would have taken place. So the recent decision not to have the trials in New York city saves 'We the Taxpayers' a few weeks and a few dollars. Huzzah.

The real issue is whether or not KSM (Khalid Sheikh Mohammed), the alleged but obvious mastermind behind the 2001 terrorist attack should be tried by a civilian court or by a military tribunal.

I believe that the main reason that many people assume that KSM should be tried by tribunal is that he is not an American citizen, and therefore not a civilian. This is erroneous because it assumes that the status of “civilian” is reserved only for Americans. I’m sure there are plenty of Europeans (to name a few) that consider themselves civilians. [Tomorrow’s headline: ROMAN POLANSKI TO FACE MILITARY TRIBUNAL.] KSM is a civilian, if not an American. But this does not preclude a military tribunal. After all, civilians can also be soldiers. Anyone who is a prisoner of war is subject to military tribunal. KSM is most definitely a prisoner, but prisoner of war?

Five men do not an army make.

What are the grounds by which these terrorists are considered military? They are not soldiers. They are not generals. They are evil mass murdering madmen.

That is not to say that we are not at war.

We declared war against Iraq. They were not affiliated with Iraq. We declared war on the Taliban. They were not affiliated with the Taliban.

If a handful of Canadians took down the Sears tower [or whatever they call it these days: money well spent, Whoever Owns the Old Sears Tower] they would not be tried as soldiers, they’d be tried as civilians.

You could argue that they are war criminals because we are fighting a “war on terror”. But we are also fighting a “war on drugs.” When we catch drug dealers and smugglers, we don’t open up tribunals. If that were the case MPs and tanks would be patrolling the corners in Baltimore and Washington.

Conservatives like to lob accusations at Democrats of being fascist, of using the government to oppress the people. What they are asking is for the military to be given powers over civilian matters. I do not personally put a lot of faith in slippery slope arguments, but conspiracy theorist conservatives should be concerned that such a move will eventually lead to martial law. I just want to point out that in the historical pattern of fascism the government does not take over the private sector until the military takes over the government. So people that accuse liberalism as fascism should keep their eye on the military more so than the White House.

Many conservatives equivocate in their translation of “jihad” as a holy war. The terrorists declared their attack as an act of jihad, and conservative America is all too anxious to embrace both aspects of that claim, “holy” and “war.” It makes us feel so very special when God and Country are on the line. We want to believe that our loved ones died for God and the U.S.A., not for Being In the Wrong Place at the Wrong Time and the Borough of Manhattan. The unwilling sacrifice made by the victims of 9/11, including the families, friends, and loved ones of those lost is no less grave or meaningful if you call it a war or an attack. Trying KSM in civilian court will not change the fact that New Yorkers died for their country.

Surprisingly most opposition to a civilian trial for KSM seems to be that it will somehow lead to his acquittal (e.g. Congressman Peter King). Personally I find the opinion that 12 New Yorkers will unanimously find KSM innocent is downright laughable. Even if the defense manages to get 12 Muslim Arab-Americans on the jury, I hardly think they will be falling over themselves to thank KSM for the treatment they’ve been getting in their own country over the last ten years. I think it would be appropriate to give New York City the pleasure of convicting the man that attacked their city, and I wish they would have had the chance.

Of course, realistically speaking, a change of venue would have been inevitable anyway. Even if it wasn’t, there were still the complaints of the added security and its affect on local businesses. This takes us from the debate over whether or not KSM should get a civilian or military trial to the discussion of where the trial should be held and this discussion comes down to one thing.


The mayor of Newburgh, NY is begging to have the trials in his town... presuming that someone else will foot the bill and bring business to his town. Bloomberg and other city politicians were itching to have the trial in their city, but wanted the White House to foot the bill. Local business people were all in favor of having the trials downtown until they realized that it's not the sort of circus that sells popcorn, it could stretch out over a matter of years, and that the security measures would drive away business.

That this was even a political debate demonstrates nothing else than the state of bipartisanship in America today. When Holder announced his decision, anyone with a political affiliation was itching to find out what side of the fence they were supposed to be on. The blogosphere lit up with various concoctions of how the matter had far more at stake than money, to herd everyone to their designated political seating arrangements. Now that the Big Apple has been eliminated from contention as a location, the bipartisan buzz has died off revealing the real matter: a fight among Democrats about money.

So who should foot the bill?

If I had to venture a prediction, I would expect the same game of musical cities that was inevitable as soon as the closing of Guantanamo was announced. The Feds who are best equipped, will handle the trial in a smaller town which will cut down costs. It will probably be a once notable suburb that wants back on the map for something. And the collection plate will be passed from city to county to state before making the Federal rounds to pay for everything.

If it were up to me?

If the concern is strictly financial I'd set up a military tribunal. It would still cost the taxpayers millions of dollars, but government could bury it under discretionary spending which would keep the general public from further politicizing something that's completely out of their hands anyway.


  1. I might note that we are not in a declared war against Iraq, nor were we ever. Congress authorized President Bush to use military force, under the War Powers Act, but did not declare war. The United States has not been in a state of declared war since World War II.

    This matter should not be handled in a military tribunal. Civilian courts are perfectly capable of trying him on the charges, and are capable of handing down a just punishment if he is convicted. I agree that the notion that 12 American jurors are going to unanimously find him not guilty is pretty far fetched. The US would have to botch the prosecution even worse than the LA District Attorney did with O.J.Simpson.

  2. My thing is why are we having a trial? He admitted and still admits he did what he is accused of. I am not sure how most states do it but when there is a confession the innocense or guilt phase of a trial is skipped and they go straight to punishment phase. So in all seriousness when he is admitting guilt why are we spending one dime to determine if he is guilty or not?
    Just have a hearing for him to lay out anything that he thinks the judge or jury should take into consideration when sentencing him and then sentence him.

  3. Tinker, tailor, soldier, sailor--
    Rich man, poor man, beggar man, thief.

    --Children's nursery rhyme (British)

    Yes, Apathy Boy, John LeCarre is the greatest "spy novelist" of all time. I put "spy novelist" in quotes because he is so very much more than that....

    Anyone who has not read his novels has no idea what he or she is missing. Let it suffice to say this: they are missing the ACTUAL REALITY of the spy world (and NOT the pseudo-celebrity of it, which LeCarre hates).

    He is as good as it gets, and even perhaps slightly better than that.

  4. Tucker,

    First, even in a trial where someone is going to plead guilty, there is still a trial phase (albeit very brief) - the defendant enters a plea, the prosecution makes any arguments about why such a plea is valid (or answers any questions about it), and typically the defendant allocutes to his/her offenses about which it is agreed he/she will plead.

    However, no one has said this man will plead guilty. He will try to argue that his cause is justified and represents actions established as valid in time of war by prior national actors (including the US and the UK). When he attempts to do so, much like the trial of Scott Ridder, the judge will cut off the defendant and remind him that his defense is effectively NOT germane as he does not represent a nation-state, and used what would be deemed illegal spy tactics to kill 2900 plus people.

    When we tried Richard Reid, the world didn't end, neither did it end when we tried Zacarias Moussaoui, the world did not end. Moussaoui used the same tactics KSM will use, and he failed, in a short, and non-public trial. We weren't embarrassed nationally or internationally.

    Make no mistake, this is a power struggle between those who believe we have the right to indefinetely detain and torture anyone we want to simply because of 9/11 and because 'we are the US', and those who don't agree (including the US Supreme Court). It is wrapped in trappings of "oh, it won't be safe", and "oh, why give him a pulpit", but the bottom line still is those in a position of leadership who are arguing against a trial didn't fight such trials when Bush was President. They are doing so here because they don't like the idea that KSM might bring up he was tortured (in fact he probably will), and they don't want the US embarrassed - which it will be - and thus they fundamentally don't like the idea that this guy who helped kill 2986 (iirc) people is going to be allowed to speak. So, they'd prefer to violate ALL of our legal tenents and simply put him away. It's dead wrong. (and NO Tuck, I don't include you in that group, I include you in the group which reads what they right and says "yeah, the guy's a jerk"). Of course he's a jerk, but that doesn't mean we abandon our legal and ethical principals. If we do, where do you draw the next line, and the next and the next?

    What this case points out is NOT that we shouldn't give someone like him a 'pulpit', but that we shouldn't have used torture to get things from him that were highly dubious. This case will highlight the assininity of our conduct under Bush, will highlight the crappola information they got from KSM, and the fact that we broke the law. That's not convenient of course, but the remedy isn't cover-up, it's in fact the opposite, it is to draw such a spotlight on the idiocy and illegality that it won't be done again, EVER.

  5. Scott Roeder, sorry for the typo.

  6. Well actually since he freely admitted he did it before we used any sort of torture on him the judge could very well cut off that also on the grounds that it has no bearing on what he did. My whole point is that in WWII Germans caught out of uniform committing or trying to commit acts like KSM did were just shot on sight. Maybe that is a bit extreme but giving him the full rights and protections a US citizen has is going to the other extreme. It seems like there should be some other solution that is more of a middle ground and does not cost the taxpayers millions. As far as security that is crazy. I would be willing to bet that by now every New Yorker recognizes his face and if he got loose his chances of living to get out of the city are much lower than his chances of going free in a trial.

  7. Actually Tuck, the case of the Germans caught sabotaging US facilities out of uniform is one of the seminal cases in US court history (in terms of treatment of combatants). Out of uniform, they were on US soil, were caught and were tried using military tribunals. It was about this case that (iirc) the quote "The Constitution isn't a suicide pact" was coined, meaning, that the german SPIES were not due trial as civilians would otherwise be - and so were tried by tribunal.

    However, that case is manifestly different from this one. First, they were ACTIVELY engaged in sabotage, out of uniform and in contravention to the laws of war. Second, they WERE in fact citizens of an enemy state, fighting for an representing that state, and so could have been defined as POWs, however, due to their flagrant violation of laws of war, were eligible to be summarily executed should the state catching them have been that mendacious. Yet, UNLIKE Germany, we in fact tried them. They were not shot on sight. The only kinds of peopl 'shot on sight' were those who either were in a high risk position and armed, or those who resisted. We were smarter then, and realized a live captive is worth more than a dead spy.

    KSM, though is none of these. He was captured in his sleep. He is not a member of an enemy state's forces, he was NOT actively engaged in sabotage on our soil and captured here. As such, he is neither eligible to be treated as a spy, nor is he eligible to be treated as a POW. He engaged, unlawfully, in violence against the citizens of this country. He can be freely tried, and will doubtless be found guilty. To deny him of this trial and due process is to begin to set a bar that can be EASILY moved from that point forward. We can say NEXT that anyone who engages in terrorism, because we treated KSM without a trial, can be treated without a trial. Then we can say anyone who acts out against government policy in any way which even is remotely violent can be, and so on. The Supreme Court RIGHLY said no to this kind of thing, and we ought to be out PROTESTING those who would try, not being ambvilenant about their words. They are essentially saying that certain kinds of actions are 'special', like say, hate crime definitions, and therefore the participants don't deserve rights any longer, don't deserve the very principals we established our country on, and gauranteed NO MATTER WHAT, would be provided to everyone. To do so is to embrace classifying certain people as 'no longer people' effectively, and it is a very short jump from there to racism, to political totalitarianism, to genocide, and to fascism. We establish our worth by standing up for freedoms when it is uncomfortable or inconvenient, not by doing so when it is popular or easy. The man who said that helped write the Declaration of Independence and was one of the brightest of our founding fathers - Ben Franklin - and his position was endorsed by no less than Jeffesron and Adams both.

  8. Tuck,

    BTW, I do see you trying to find common ground, and I commend you for it. I just see no reason to look for common ground with those who seek to deny rights.

    Our Declaration of Independence reads, "We hold these truths to be self-evident; that ALL men are created equal. That each is endowed by our creator with certain inalienable rights..."

    The point being ALL men, and these rights cannot be alienated, a specific term to mean both they cannot be denied, nor can they be stripped simply because someone is an OTHER to the nation. It does not say, 'we hold these truths to be self-evident that all CITIZENS or all MEN, or all English poeple.' They understood the universality of liberties, and we should not cease to uphold that call simply because we don't like the defendant, for to do so, is to say that we not only have exceptions, but that we embrace such exceptions, whenever convenient or popular. It is the epitome' of situational ethics, and the epitome' of wrong.

  9. There is one thing here though, Al-Queda did declare war on us. They had their organization deliberately and purposefully attack and kill Americans. They attempted a bombing in 93, they blew up the USS Cole, they blew up a US embassy in Kenya. The problem here is that when our constitutio and the geneva conventions were written no one anticipated a multinational organization dedicated to war on whatever they considered a threat to Islam. So if Al-Queda was a nation he would have been the equivalent of a german general who planned a successful attack against civilians and was taken in his sleep. That would probably be a military tribunal like Nuremburg was,but because they span several countries and are self financed he gets treated as a civilian. He really kind of falls into a grey area that was not anticipated until the last 20 yrs or so.

  10. That's true, Tuck, but Al Qaeda isn't a nation. It is effectively the Mafia. Do we begin to deny the rights of people because they belong to a criminal organization?

    The alternative to treating them as civilians is to treat them as Prisoners of War. I deny/refute/refuse to allow for that, because it would mean NOT trying them until hostilities ceased. If we treat them as such, then KSM, who was not captured on our soil in the act of a spy, would be, by law, held in a prison of our chosing, safely, with access to health care, letters from his family, free from ridicule or the actions of the citizenry which might bring him harm. I deny that this is appropriate, I believe he should be tried, and if found guilty of engaging in terrorist acts, sentenced to the most severe punishment allowed by law. I personally think he should be imprisoned for life in some way which is degrading to his particular faith, but understand that while imprisoned others may try acts to force his freedom. Nonetheless, that doesn't abbrogate our responsibility to treat him within the law. If the law mandates he should be executed, as abhorant as I personally find such things, that IS the law, and he should be treated under it.

  11. BTW, Tuck, to be clear, our Constitution is plenty adequate to deal with Al Qaeda, it is brilliant in it's general approach, and subsequent international and US law have further helped to define how such organizations CAN be treated and treated VERY successfully under the law.

  12. Tuck, I second the comments by Pen here. Reading the Geneva Conventions - which can be done online - there are very specific distinctions made with how individuals are treated who belong to uniformed standing military members of nation states and very specific definitions of who is not included in those definitions. Some of those protections and agreements were made specifically at our own insistence and the insistence of our allies to protect, for example, resistance fighters in groups like the Maquis in France.

    We can't have it both ways. We cannot redefine rules and treaties, accords and conventions, to mistreat somepeople and not have our own or our allies mistreated. We most certainly cannot do so on the basis of national origins OR on the basis of them being adherents of Islam.

    While I agree with you in nearly every particular, I disagree with you that KSM should be imprisoned in a way that is
    "degrading to his particular faith".

    We gain tremendously by doing this trial and other trials the right way, by taking the high road in holding public civilian trials. We would subsequently lose all of that if we degrade a prisoner in a religious way subsequent to that kind of trial.

    We can do this right, and we should do it the right way, not the wrong way. No short cuts, no hidden actions, no unusual and bizarre special punishments.

    Civilian trials have been consistently successful in several hundred trials, while two out of three of those military tribunal trials were released, and all were found to have huge problems by our SCOTUS.

    The only - ONLY - factor which has changed in all of the discussion from the Bush administration era civilian trials of terrorists is who is in the white house and what party has control of the congress and senate. The right has pursued a political tactic and strategy of obstruction, and in some instances of outright lies - like the assertion made by Republican senators that Miranda rights and Constitutional protections are specific and unique to US citizens and do not apply to anyone else.

    They are either deliberately lying, or they could not themselves pass the most fundamental and basic kind of 'civics literacy tests'
    called for by Tancredo at the Tea Party convention last week where Palin was reading off her hand.

  13. DG, I suspected I might get a comment or two about that.

    There is a visceral desire for vengence, it drives our thoughts to deny him a trial, to torture, to mistreat, to execute.

    There is a part of justice which is vengence, perhaps not its best part, but still, for the victims, there is a sense of retribution which punishment must achieve. I don't SERIOUSLY desire to disparage his faith, certainly not Islam, but if there were a way to have is time spent in his own personal hell, I would not argue against it. It is not to argue for cruel treatment, but rather to hope that whatever his imprisonment is, it is personal agony for him. It is not the better part of me which wishes for this, but it is the part of all of us which is so viscerally angry, so filled with a desire to wrap our hands around his throat and scream at him "WHY!!!!!!???!!, Why did you seek to kill so many innocent people?" I already know his answer, but accept that wishing his time in prison to be as unenjoyable as possible is as close as I can get to wrapping my hands around his throat and/or showing him he is a traitor to his faith. It is what I, and the rest, have to be content with. It is not turning the other cheek, but it is human, and in the case of the families of the victims, we must recognize, it is part of justice to see the punishment fit the crime.

  14. Vengeance is different from justice.

    I appreciate that you know that difference in your own heart, and make the distinction too.

    Deep down it is I think a mix of frustration and fear, combined with anger and a desire for vengeance and retribution, that drives the desire to torture the prisoners at Gitmo.

    Getting actionable intelligence is, I think, just a pretext. Particularly given the number of Gitmo detainess who are too low level to have any useful information - IF they are even Al Quaida at all (and many are not).