The right-wing Claremont Independent distributed its December issue the evening of Jan 25th. Featured prominently, on the back cover, is the CI’s “Humor?” section, which tends to feature some sort of esoteric but shallow, not-so-biting and not-so-accurate satire. The December issue’s “Humor?” section worries about 9/11 plotter Khalid Sheikh Muhammed’s civilian trial in New York City, reading:
Scared of the Constitution?
Walking free in New York City: Priceless
And with the jury at 7-5, it was so close to going the other way.
I’ve really come to appreciate the American system, after all.
Then, the CI shows pictures, complete with ticket prices, of various tourist attractions in New York City that Khalid Sheikh Muhammed could, ostensibly, visit in the unlikely event that he is not convicted.
What is the CI’s point here? Following the Republican Party’s primary tactic after Obama’s election in 2008, they seek to spread fear, uncertainty and doubt. The CI wants you to doubt whether our justice system works. They want you to be uncertain about whether KSM will be convicted. They want you to fear following the Constitution.
It sounds hyperbolic, but it’s true. The American system, ordained in the Constitution, demands that every person be afforded due process rights. Not only this, but every person accused of a crime — importantly, any “accused” not just citizens: the drafters of the Constitution were cognizant of this distinction and chose the words they meant — is guaranteed a “speedy and public trial, by an impartial jury in the State and district where in the crime shall have been committed.”
Clearly, KSM’s crime — 9/11 — was committed in Lower Manhattan. The Constitution guarantees him a trial there. Period. That’s the beauty of the American system: it follows its own rules even in the most extreme cases.
The CI and their compatriots in both parties are not being patriotic or protecting America — they’re maligning the Constitution and the American justice system that have served this country for more than 200 years. Surely the justice system that has succeeded during the truly existential threats of the War of 1812, the Civil War and World War II can be trusted to succeed during today’s War on Terror. Surely that justice system can be trusted to reach a fair and honest verdict against a man whose guilt is obvious.
That’s the crux of the scaredy-cats’ argument: America’s Constitutionally-ordained justice system, which was long considered one of the fairest in the world, cannot be trusted to convict the guilty (e.g. KSM) and exonerate the innocent. If that’s true, as the CI and its pals allege, then why do we trust it with ordinary criminals whose guilt is often far more questionable? Aren’t the stakes high enough when the state threatens to murder its own (poor and overwhelmingly non-white) citizens who may or may not have committed murder? Don’t American citizens and taxpayers deserve the fairest system for themselves?
The CI and their scaredy-cat compatriots invoke patriotism and fear to justify their desire to trash our Constitution. Let’s show the world that America still stands for its principles of fairness and equality before the law. When America abandons its principles, as the CI would encourage, the terrorists will have won.
“The American system, ordained in the Constitution, demands that every person be afforded due process rights. ”
You are technically correct according to your wording, but factually wrong.
The Sixth Amendment says: “In all CRIMINAL prosecutions, the accused shall enjoy the right to…” So when you make your case with reference to “…every person accused of a CRIME…” you are of course correct.
But here are the inconvenient facts you have left out of your impassioned argument: KSM is neither a US citizen nor a common criminal. He did not rob a corner store; he masterminded and perpetrated an act of war that killed almost 3,000 innocent people and should therefore be tried by a military tribunal. That has been the historic precedent for foreign nationals in the past who have been charged with similar crimes against the state. Although the radical terrorist group to which KSM bears allegiance is transnational in nature, it is no less a threat to the citizens of the US than any other small country that might declare war on us. In fact, because it is based in a martial fundamentalist religion, with cells of warriors strategically atomized and geographically dispersed, one could say Al Qaeda is much more dangerous.
Having said that, Loosen up your gaunch a bit, Jeremy. It was a joke. Humour, you know?
No one at CI is seriously afraid that KSM will go free, although that is not outside the realm of possibility since he was not Mirandized and large chunks of the evidence against him will be unadmissable. They were lampooning the insanity of bringing that murderous tool into New York at a cost of $200 million a year for a 4-5 year trial (minimum) and subjecting New Yorkers and those tourists brave enough to venture in to a 24/7 security nightmare and the chance of another attack. Never mind the courtroom circus shenanigans, global propaganda victory and potential covert intelligence breaches if he decides to represent himself.
So cool it with the unhinged charges of “scaredy cat compatriots” who dare “trash our Constitution” with that darn humour of theirs.
Reasonable people can agree to disagree on whether KSM should be tried in civilian court or a military one, but whichever decision is made at the end of the day, it poses no danger to the Constitution.
BTW: I find it most curious that if KSM – like his terrorist buddies currently dying in Pakistan and Afghanistan – had been summarily vaporized by an unmanned drone (ordered up by Obama), you wouldn’t have said a word about it. Hey, they’re in battle, aren’t they? No judge, no jury, no problem.
Capture him on the other hand, and bring him over to Gitmo for interrogation – all of a sudden he’s a common criminal deserving of full Miranda rights and a civilian trial.
I say you can’t have it both ways.
You argue that I’m factually incorrect, that the nexus of the facts that KSM is not a citizen and that he’s not a “common criminal” entail that he doesn’t get Constitutional rights.
First, the Supreme Court has held for more than a hundred years that citizens have Constitutional rights too. This is evident from the Constitution itself: the Constitution differentiates rights that citizens have, like voting, holding office, from those that are guaranteed to all people. Therefore, KSM’s lack of citizenship has no bearing whatsoever on his rights. If you — apparently not a US citizen — came to the US, even you would get these rights if you were charged with a crime.
Second, all criminals, not just “common” ones get Constitutional rights. In the American tradition, these rights accrue to all people as a result of their common humanity. Cf. “All men are created equal” and “endowed by their creator with certain unalienable rights” in the Declaration.
Regarding humor, I don’t think suggestions to scrap the Constitution are too funny. And if you think the CI isn’t scared that KSM will be acquitted, then you clearly didn’t read their page: “And with the jury at 7-5, it was so close to going the other way.” They aren’t talking about potential losses to tourism or business (which are well-taken, but weigh on moving the trial to Westchester or somewhere nearby) but about the notion of giving trials to accused criminals.
And yes, there is a difference between killing someone on the battlefield halfway across the world and treatment of them once their in US custody on US soil. It’s the American way that people on US soil get rights: unless we’re willing to throw out years of Constitutional law and tradition, we should give KSM a trial once he’s in US custody.
To be fair, last I checked (which was 2005), military tribunals were the norm for enemies acting under an actual and tangible nation, as defined by the Geneva convention. One of the major issues that the War on Terror has brought up is that no longer is the world defined by only State actors. And there is no clearly spelled out procedure to deal with foreign nationals working for a transnational organization. Yes, non citizens are guaranteed some rights by the constitution but does one consider a transnational terrorist as if he or she were a captured solider akin to a prisoner of war, or as if he or she was a captured non military non citizen. The points being,
1)There is still a gray area as to whether KSM must be tried in tribunals or in civilian courts.
2) The constitution is not the only relevant document in this case. Our foreign treaties play a large role in how these procedures should pan out.
Matt F is correct.
There is a huge grey area when it comes to the treatment of transnational foreign agents waging war against the US and the Constitution is not the only document of reference.
You say: “It’s the American way that people on US soil get rights: unless we’re willing to throw out years of Constitutional law and tradition, we should give KSM a trial once he’s in US custody.”
Perhaps liberal icon FDR wasn’t acting in “the American way” when he authorized the trial of 8 German spies captured on US soil in 1942 in a military tribunal and then electrocuted 6 of them, but he obviously had his reasons for doing so.
http://www.sptimes.com/News/121701/State/Gang_of_WWII_spies_fa.shtml
If those are the rights and the years of law and tradition to which you are referring, I can certainly get behind them. I suspect they aren’t.
Besides, notwithstanding the questionable legal footing, there are plenty of good reasons not to try KSM that are merely practical in nature. Avoiding he aforementioned prohibitive cost, preventing potential damage to the assets and practices of the intelligence community, and negating the provision of a handy dandy global propaganda vehicle custom made for a murderous and unrepentant swine.
I suggest that, despite your idealistic hopes and rationale, the push for this KSM trial has a lot more to do with the desire of Eric Holder and the Obama people to retroactively prosecute the actions of the Bush administration than it does with Constitutional fidelity and concern for the rights of a terrorist slimeball who has already confessed his guilt.
The fact that Holder’s old law firm, Covington & Burling, and many of the people currently working for him in the DOJ represented countless Gitmo terrorists pro bono does little to convince anyone to think otherwise. Add in his disgraceful actions in obtaining the release of 16 FALN terrorists against the advice of the FBI, the US Attorneys who prosecuted them and the NYPD officers who were maimed by them and we can see that Mr. Holder is perfectly willing to put politics before the well being and national security interests of the country.
Excellent rebuttal, and it should go without saying that part of the reason Obama isn’t pursuing a trial in NYC anymore is that he realizes how unpopular the idea of giving terrorists rights are.
Rights must always come with duties, chief among them the duty to defend said rights in time of war. Terrorists that work to destroy the country are not entitled to the rights that are its foundation.
Well said, CJ.
BTW: Enjoyed your recent post on biggovernment re: Zaid Shakir. Keep up the good work.
Rights aren’t supposed to be subject to popularity, that’s the point of the Constitution. The point of that document, and of American tradition, is that even those who break our laws and violate our dearest principles are entitled to rights.
That’s why America’s supposed to be special: we have a unique respect for certain rights (Jefferson called them “unalienable”) for all people, period. That’s why the terrorists are supposed to hate us: for our freedoms.
One more thing, Jeremy.
I always find it curious when liberals or progressives hold up the Constitution and defend it, or some portion of it, as though it is sacrosanct, eg: it’s “American tradition” or “the American way”. Typically, this sudden bout of originalist patriotic fervour arises when you are defending a position that requires its support.
I realize flag waving and Constitutional confabulations are convenient props at present for your arguments in favour of giving civil rights to KSM and crew, but wonder where you are the other 99.9% of the time when the Constitution and its tenets are being either denigrated, ignored or shredded outright by your liberal friends.
The Obama administration has no regard for the Constitution, considering it flawed, an obstacle, and a “charter of negative liberties”. They have spent most of their time in office cynically trying to get around it or abrogate it — in particular, the 2nd, 9th and 10th Amendments.
One example out of many: The individual mandate in Obamacare is flagrantly unconstitutional. Article I, Section 8 of the Constitution lists the enumerated powers of Congress and there is no provision for health care. Furthermore, the Tenth Amendment makes it explicitly clear that the powers not listed in the Constitution are to be left to the states and the citizens.
Something you might bear in mind next time you attempt to pull a righteous defense of the Constitution and “the American way”: consistency counts, and the sincerity of an argument tends to register with more force if people don’t have good reason to believe that it is nothing more than unvarnished opportunism on display.
Is that the best you can do? The “Obama quoque” fallacy?
Here on the Port Side I’ve criticized the Obama administration for ignoring the Constitution numerous times, for civil liberties and for healthcare (I agree that an individual mandate is blatantly unconstitutional).
If you were in Claremont, you’d know I’m a strong supporter of the Second Amendment and the right to bear arms. (I just haven’t written about it.) You’d also know I generally support decreasing federal power in favor of state, local and individual power.
I am consistent, if I do say so myself. You’d do well not to make assumptions about my political beliefs.
I don’t see how my comments can be considered a tu quoque fallacy, since I stated on more than one occasion that it is possible for rational people to disagree on the question of bestowing rights upon foreign transnational enemy combatants in time of war.
You suggested there was no precedent for not giving KSM et al. rights on the basis of tradition and the American way; I provided one very clear precedent by referring to FDR and asserted that the legal book is still being written on the proper way in which to handle such cases and provided good reasons to support the more prudential military tribunal route. In the end, we can agree to disagree on that issue.
My sidebar reply dealing with deconstructionist liberal and progressive views on the Constitution was ancillary to that argument. Merely a sharing of my observations in passing, as well as concerns that I still hold as well-founded, despite finding that I was wrong to include you in that mix.
I am glad to hear that you have called out the Obama people from time to time for their assault on the Constitution, and even more pleased to discover your support of the Second Amendment. I suspect those positions make you somewhat unique among Port Side writers and readers, so I applaud you for your intellectual bravery, and at the same time apologize sincerely for presuming that your views were monolithically liberal.
I’ve always suspected there was hope for you, Jeremy. You’re a thinker, not a feeler, and at the risk of adding a Manichean twist to this compliment, I really believe that one day you’ll have an epiphany – leave the dark side behind once and for all – and come over to apply your considerable mental energy and polished writing skills in service of the Claremont Conservative.
Until then, en garde!
First, you’d be surprised at the ideological diversity on the Port Side’s staff…
Second, you have no reason to fear: I’ll never abandon the left wing for a “right wing” that licenses torture and gross civil liberties violations.
“First, you’d be surprised at the ideological diversity on the Port Side’s staff…”
I doubt that, Jeremy. Seems like a bit of an echo chamber to me.
“Second, you have no reason to fear: I’ll never abandon the left wing for a “right wing” that licenses torture and gross civil liberties violations.”
Once again, you reduce yourself and your side of the argument to an immature and naive caricature.
I have neither the time nor the energy at present to educate you at length as to why your posture is so disappointing. Let me just recommend that in between your courses on computational linguistics and philosophy you may find it helpful to read up on some recent American history.
There are many examples with which to refute your silly smears, but on the torture side you may want to refer back to last year:
“Despite Nancy Pelosi’s denial that Congress was informed that the CIA was illegally waterboarding detainees, the Senate committee report discovered that in 2002 Pelosi and three other members of Congress (one other Democrat and two Republicans) were given a virtual tour by the CIA of overseas detention sites and the torture tactics employed to try and make detainees talk. This was reported by the Washington Post in December 2007.
Democrats Rep. Jane Harman (D-Calif.) and Sens. Bob Graham (D-Fla.) and John D. Rockefeller IV (D-W.Va.), all held oversight roles during this period. The Post reports that the lawmakers raised “no objections” to the interrogation methods demonstrated by the CIA and that in fact, “at least two lawmakers in the room asked the CIA to push harder.”
On the civil liberties side, you appear blissfuly unaware that the Obama administration has preserved virtually every one of the Bush policies pertaining to the war on terror. Don’t take my word for it, here’s an excerpt from Time magazine:
“[The civil-liberties community] have watched with concern as the Obama Administration has filed papers in several court cases suggesting that it will side with the Bush Administration on key issues dealing with terror detainees, warrantless wiretapping and national security secrets. (Read “Taking the Bush Anti-Terror Legacy to Court.”)
In three separate ongoing cases, the Obama Justice Department has invoked the so-called “state secrets” privilege, arguing that litigation cannot go forward because it would reveal classified information, a tactic of his predecessor’s that Obama had no problem criticizing during the campaign. At the same time, Obama’s advisers have declined to answer questions about whether or not they will support legislation, which was once supported by Secretary of State Hillary Clinton and Vice President Joe Biden, to give judges a greater ability to limit the use of the state-secrets privilege as a courtroom tactic. “It’s disappointing that the Administration is throwing up the same legal argument,” says Caroline Frederickson, the ACLU’s top lobbyist.”
Read more: http://www.time.com/time/politics/article/0,8599,1892795,00.html?xid=rss-politics#ixzz0f6Rp27gK
And if you really want to talk about civil liberties, have a go at defending FDR’s internment of Nisei Japanese during WWII, or the disgusting actions of Orval Faubus, Bull Connor, Ross Barnett or Robert Byrd in the late 50s and 60s.
People in glass houses…
Why do you keep trying to hold me responsible for the actions of Congressional Dems and the Obama administration? I am quite keenly aware of their complicity in torture and civil liberties violations. I certainly don’t support those actions and I often don’t support those individuals politicians; of course, my lack of support for, say, Pelosi, has precisely no effect, since I don’t vote in California. And, I’d vote for Obama again in a heartbeat because voting for McCain would have put Sarah Palin one lack-of-a-heartbeat away from the White House.
I’ve said this all before: I’m not in love with Obama [I supported Bill Richardson in the primary] and I don’t really identify as a Democrat, though I’ll vote for a crappy Democrat over a scary Republican any day.
And I’m puzzled how you’d know anything about the ideological diversity of the Port Side’s staff considering you’re not from Claremont and I see much of the staff on a daily basis…
Yes, you talk a good moderate ideology, but you continually expose yourself as inflexible and blindly partisan with your simplistic “scary, torture-licensing, civil liberties-violating, heartless Sarah Palin-promoting Republican” diatribes.
When it’s pointed out to you that the Democrats are at least as bad if not worse in those ways than the GOP you shuck and jive, retreating behind a “don’t blame me, I voted for Richardson” excuse.
Can you see why that might be just a tad annoying?
I don’t care what you find “annoying,” Alan. If you don’t like what I say, you don’t have to read the Port Side.
At least some Democrats recognize the problems with torture and civil liberties violations, even if the Democratic Party as a whole doesn’t act on it; the same can’t be said (at least not meaningfully) about Republicans, save perhaps Ron Paul, who’s a class unto himself.
You don’t seem to understand that I’m not a Democrat and I’m not committed to their platform or their actions. I just share more policy positions with the Dems than I do with the Republicans.
If the Republicans on my ballot were ever closer to my beliefs than Dems, I’d vote for them. They just never are. [Though I did vote for a Libertarian once] You’re right that my choices aren’t too great, though…
Oy vey! Another blanket statement:
“At least some Democrats recognize the problems with torture and civil liberties violations, even if the Democratic Party as a whole doesn’t act on it; the same can’t be said (at least not meaningfully) about Republicans, save perhaps Ron Paul, who’s a class unto himself.”
So you recognize the blatant hypocrisy of a Democratic party that claims to agonize over such problems, publicly criticizes their opponents mercilessly for adopting certain unavoidable wartime policies and then employs those very same policies when in office?
Have you ever considered for one moment that many Republicans and conservatives have the same misgivings as you do about the use of waterboarding and enhanced interrogation techniques, but have made the difficult decision that in time of war the imperative is to save innocent lives assumes a far greater significance in the scheme of things? Or do you believe Republicans are just heartless a-holes that love to torture people and constrain liberties for the fun of it?
You know conservatives are staunch defenders of individual freedom and liberty — that’s what we stand for — but when national security is at stake trade-offs unfortunately have to be made. When you’re out of office it’s easy to take the high road, but when in power you find that governing brings grave responsibilities, and suddenly the choices don’t seem so clear. It’s hard to be idealistic and theoretical at the point where the rubber meets the road. That’s the position Mr. Obama finds himself in at present.
But since you voted Libertarian once, there’s still hope for a late conversion…
Umm, yes, I recognize the hypocrisy of Democrats campaigning on civil liberties (and other things) then failing to act on them once in office. That’s part of why I no longer identify as a Democrat.
But I do doubt that many Republicans have thought too hard about torture and denials of Constitutional rights. Many Republicans seem to consider torture a foregone conclusion, just as much a foregone conclusion as the guilt of many of the Gitmo detainees they fight to keep locked up without trial. The evidence is rather obvious… [That's not to say Democrats have made similar mistakes.]
And your claim that Republicans stand for individual liberty is facially false and has been so for decades. What individual liberty is defended by keeping gays from marrying and serving in the military; what individual liberty is defended by forcing Christianity on pupils in public schools; what individual liberty is defended by championing the Patriot Act’s end-run around Constitutional safeguards that worked during WWII and the Cold War?
Practical concerns shouldn’t play a role. Do you really want to sell out America’s legal tradition for a few dollars and the fear of KSM’s propaganda videos? (On that note, do you fear that KSM will say something that dangerous?)
Further, those Germans were “unlawful combatants” because they violated the various treaties which Germany and the US had signed and because they represented Germany. KSM and al-Qaida represent no state and therefore cannot be signatory to any treaties.
And you say that Holder should be ashamed that some DoJ workers represented “countless Gitmo terrorists.” That’s precisely the problem: you’ve prejudged people who have been arrested but not tried, you’ve judged them purely on the government’s word. To you, they’re guilty until proven innocent. That’s the precise opposite of the American way.
“That’s precisely the problem: you’ve prejudged people who have been arrested but not tried, you’ve judged them purely on the government’s word. To you, they’re guilty until proven innocent. That’s the precise opposite of the American way.”
I have not “prejudged” anyone, Jeremy. KSM and his co-defendents have already confessed their guilt and agreed to go before a military tribunal and face the death penalty for their crimes.
If anyone has prejudged the case, and by doing so publicly jeopardized its successful prosecution, it is the Obama administration — as arrogantly expressed by these comments by Obama, Holder and Gibbs:
“KSM is going to meet justice, and he’s going to meet his maker and he’s likely to be executed for the heinous crimes that he committed.” [Gibbs]
“… those offended by the legal privileges given to KSM won’t find it “offensive at all when he’s convicted and when the death penalty is applied to him.”.” [Obama]
“…if something did go wrong, and a mistrial or acquittal happened, [DOJ] would “not allow release into this country of anyone who was deemed dangerous.” KSM and others would remain detained as enemy combatants…” [Holder]
“”We would continue to hold them under the laws of war,” Holder said. “We believe we have the authority to do that.” [Holder]
I see…. so the fix is in. We’re going to extend full Constitutional rights to these people despite the fact they are unlawful enemy combatants at war with the US, spend a billion dollars putting them and the rest of the country through a propaganda-spewing Kabuki show trial and then execute them afterward. Nice.
If, however, through some twist of fate or judicial wizardry they get acquitted, they won’t be set free. No, no. We’ll simply hold them indefinitely in a Gitmo-like state as unlawful enemy combatants — just as they are being held at present.
How does that make you feel? Still excited about flaunting the wonders of the American legal system to the world-at-large? Sounds more like a Stalinesque or Gang of Four era communist show trial where everyone knows the outcome but pretend nonetheless that justice of some sort is being done.
Face it. This is a waste of time and money, a travesty of justice, and a cruel joke on all concerned.
The only reason rational debate is still permitted on this issue is that unfortunately our concept of war and the crimes committed during war have not progressed to the point where there is a standard policy for transnational bad actors such as KSM. What we know for certain is that a return to the ’90s Clintonian policy of treating terrorism as a criminal law enforcement matter is not the answer.
That put us on the naive, misguided road to 9/11 and it will end in tears now, just as it did then.
You continue with your “Obama quoque” argument. Yes, the Obama administration has prejudged KSM; yes, they’ve promised to apply different standards of “justice” by only trying some detainees and detaining some of them entirely without trial. Yes, the Obama administration wants a “show trial” by a kangaroo court (read: special military tribunal) rather than a fair trial. This is blatantly unconstitutional and completely problematic. It is not justification for anything, it’s totally wrong for Obama to oppose giving fair trials to everyone arrested and held by the United States.
You’re right that keeping accused terrorists in jail without trial is problematic and tarnishes the image of American justice in the world. That’s my point. All the more reason to give them fair, free, civilian trials in front of a jury with full benefit of the presumption of innocence. Let’s show off the strength of the American system, rather than sh*tting our pants at the sight of an accused terrorist.
And regarding convictions, the fact that KSM et al have confessed is not dispositive. Many, many people have confessed to crimes of which they have been later been found completely innocent based on DNA or other evidence. That’s why we give people who confess a trial or at least a chance to have their case heard (or plea agreement examined) by a judge.
“You’re right that keeping accused terrorists in jail without trial is problematic and tarnishes the image of American justice in the world. That’s my point. All the more reason to give them fair, free, civilian trials in front of a jury with full benefit of the presumption of innocence.”
I’m sorry, but this is the point at which you go off the rails – because your first premise does not lead logically to your second.
As I have said, there is another rational and feasible precedent-based solution that does not involve giving terrorists/foreign warriors/illegal enemy combatants the Constitutional rights of US citizens. The military tribunal.
The crux of the matter is that when you insist upon treating these people as common criminals you skew the war on radical Islam entirely in their favour at your own expense. You end up unnecessarily fighting the war (which is what it is, after all) with one hand tied behind your back. Mirandizing people on the battlefield; losing the ability to isolate them, interrogate them and potentially save innocent lives; and putting your intelligence assets and techniques at great risk by exposing them in open trial is no way to keep the American people safe and ultimately win the war.
To your second point, how on earth can there be a presumption of innocence when someone is already on international record as a terrorist mastermind, has already given up a wealth of actionable intelligence that pre-empted dastardly plots and saved lives and by his own admission was willing to be executed for those heinous deeds as a proud soldier of jihad? Where are you going to find a jury to try that case?
What confuses me is that you admit it’s a senseless and debased show trial and yet you agitate for it nonetheless. While your idealistic desire to do “the right thing” is admirable, I believe it is unnecessary and a tad misguided. The nub of this matter — the true heart of the issue — is one simple and irrefutable fact: there is a profound difference between a terrorist prisoner of war (regardless of origin) and a common criminal. The ramifications of that fact alone in context of national security dictates that each must receive treatment and retributive justice in very different ways.
Unfortunately, in this case, one size does not fit all.