Why Try the Guy?

Jacob Sullum | September 7, 2006

Forgive me if this seems like a dumb question, but what is the point of putting Khalid Shaikh Mohammed et al. on trial when their convictions are essentially guaranteed? Given that hearsay, coerced testimony, and classified material that neither the defendants nor their lawyers will get to see would all be admissible under the rules the Bush administration wants Congress to approve, is there any scenario in which these guys would be acquitted? And if they were somehow acquitted, is there any scenario in which they would be released?

Since the answer to both questions seems to be no, what chance is there that even a mildly skeptical person will view the trials as fair truth-finding endeavors, let alone the efforts of "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people"? And if it's inevitable that these exercises will be seen as show trials, why not just give a speech, maybe with slides, laying out each prisoner's crimes and explaining why it's impractical to try him? Then the president would at least get points for candor.

Comments

|9.7.06 @ 11:40AM|#

"what is the point of putting Khalid Shaikh Mohammed et al. on trial when their convictions are essentially guaranteed?"

Because if Republicans aren't permitted their constitutional right to grandstand on terrorism issues in an election year then we are weakened as a free people.

|9.7.06 @ 11:48AM|#

Shorter 2006 election campaign: Either you're with Bush or you're with Khalid Shaikh Mohammed.

|9.7.06 @ 12:06PM|#

Think of the children!

...or at least the money and the kangaroo show.

|9.7.06 @ 12:07PM|#

what is the point of putting Khalid Shaikh Mohammed et al. on trial when their convictions are essentially guaranteed?

Because it's in keeping with the government policy of pretending the Bill of Rights applies to people, at least when they don't conflict with government interests. It's a lot easier to say each individual case is an exception to the rule than to admit to the reality that a fundamental bedrock of our nation is simply a facade.

|9.7.06 @ 12:12PM|#

Forgive me if this seems like a dumb question, but what is the point of putting Khalid Shaikh Mohammed et al. on trial when their convictions are essentially guaranteed?

I think SR above nailed it pretty much head on.

The only reason for "trying" him, and doing it in the US, is pure political opportunism. If they wanted him dead, they could easily just hand him over to either Egypt or Jordan or Pakistan... I dont remember who, but he was convicted in absentia by other counties for various plots, failed and successful, and if we tossed him to one, he'd likely be summarily executed. If they wanted him secured indefinitely, that wouldnt be a problem either. I think the idea of 'doing it by the book' now is a head fake to give the news something to spin through while they continue the black ops, renditions etc, under cover of 'well, it all eventually gets to some kind of legal thing..."

I think it might be bad precident for themselves in the end - I mean, why are we rushing to figure out how to give KSM a trial, while Jose Padilla, a total idiot, insignificant player, still doesnt get one after 4 years? They seem to get to pick and choose who gets the benefit of rule of law, and who is outside of it. KSM is one best-case example for someone you WOULD potentially want to keep in detention, sans trial, the rest of their lives. Guys on the news hour last night suggested that this approach of playing chicken with congress - trying to force them to authorize mock trials right before elections - may end up confusing the process even more, rather than getting to where we've got a good policy as far as our adherence to Geneva/Hamdi, etc.

JG

|9.7.06 @ 12:27PM|#

Given the alternatives -- declaring them guilty (or innocent) without a trial, or simply freeing them -- what would the jokesters above recommend? Sarcasm is easy. Anyone can do it.

|9.7.06 @ 12:39PM|#

"Given the alternatives -- declaring them guilty (or innocent) without a trial, or simply freeing them -- what would the jokesters above recommend?"

Uh, there's another alternative Jacob alludes to in his original post: give them trials with actual due process protections. If you re-read it, Jacob isn't claiming that KSM et al. shouldn't receive trials, he's pointing out that the trials Bush is proposing to give them are patently show-trials with pre-arranged outcomes.

|9.7.06 @ 12:41PM|#

At least let him hire Joe Pesci as his defense attorney.

Shannon Love|9.7.06 @ 1:19PM|#

Well, back before the opponents of the War on Terrorism shredded all the international conventions and treaties on war, we had a fairly settled body of law on how to treat such individuals. However, since the US supreme court has taken to blowing its nose on the Geneva Convention and upending all its precepts, the matter has become very complicated and we are forced back to square one.

I have long argued in this forum that any public trials for individuals involved in covert warfare will never be anything more than a farce. The government will either have to reveal its entire covert operations (including agents and soldiers) at every single trial or it will just have to present a "their guilty, trust us" case.

The writers and ratifiers of the 1947 Geneva Convention had just lived through WWII and they understood in a way that we have forgotten just what "fog of war" really means. They created a system of rules that required combatants to act overtly in order to be protected. They knew that given the inherent chaos and passion of war, only those who acted in clear and obvious accordance with the rules could be protected. Imposing any other standard would simply empower the amorally viscous.

Since 9/11, vast swaths of the worlds political entities have struggle to undermine that one critical idea for their own short term political advantage. Now we have reached the point where those who fight covertly receive greater protection than those who don uniforms and place themselves at risk to protect non-combatents.

We are so going to regret this.

|9.7.06 @ 1:27PM|#

this has to be done to:

* allow high profile lawyers to get lots of cnn facetime.
* allow cnn to fill lots of newstime and sell lots of ads
* allow minor politicians, loons, academics, and che-wannabees some easy grandstanding which (they hope) will get them cnn facetime, too.

if we don't feed the news industry, the terrorists have won.

|9.7.06 @ 1:49PM|#

"Now we have reached the point where those who fight covertly receive greater protection than those who don uniforms and place themselves at risk to protect non-combatents."

Since domestic criminals subject to American jurisdiction already receive greater due process protections than military personnel under the Geneva Convention, I don't see why foreign criminals who are seized and taken into American custody instead of being turned over to local authorities or sent to another nation that has a warrant out for their arrest should be entitled to a lower standard of due process.

|9.7.06 @ 1:50PM|#

Shannon Love,

back before the opponents of the War on Terrorism shredded all the international conventions and treaties on war,

Heh. You did mean "proponents", not "opponents", right?

Anyhow, the settled body of law does little to help us when we're paying Afghani warlords to turn over people who are alleged to have cooperated with al-Qaeda. Yes, the Geneva Conventions are clear on how to deal with irregular combatants, but the problem is that we have to determine whether a particular prisoner is an irregular combatant or just got on the wrong side of his local warlord one day. Does international law allow everyone residing in an occupied country to be treated as an irregular combatant?

|9.7.06 @ 1:58PM|#

Hi Ed

Given the alternatives -- declaring them guilty (or innocent) without a trial, or simply freeing them -- what would the jokesters above recommend? Sarcasm is easy. Anyone can do it.
Comment by: ed

I have a potential third option=

Shoot them in the backs of the heads on a dirty cellar floor. Feed their bodies to pigs.

Only after we're 100% done torturing them, that is.

Seriously.

I'd much rather we truly acted like the Gestapo in secret with the real-dealers, rather than start seriously fucking with our legal standards so that the government can change 'official rules' and make exceptions for conduct willy-nilly as the political moment demands.

i.e. to rephrase =

I'd rather we kept strict rules of law in place, and didnt go muddying our legal system... changing what evidence accused people can see, etc, evidence gathered under duress admissable, etc.

If we're going to torture & murder terrorists, then let's do it, but still know that we're breaking the rules and taking risks and facing condemnation or charges in international court or whatever. But let's not let this stuff be disingenuously excused, creating loopholes in our legal system that make us do disservice to our principles as well as potentially set precident for the Executive to decree the terms of trial in whatever case they see fit. OR - as in this case - start using real terrorists as poltitical softballs to whack out of the park in public, to cover up the shit-ass job you're generally doing otherwise...

I know this is blatantly morally hypocritical, but in some ways it makes perfect sense to me. Let's go ahead and act extralegally, and accept the consequences... take it like a man... rather than have slimy lawyers retool our concepts of human rights & the rule of law that should apply to 'everyone else'.

One might say that it's wrong to ever grant this kind of power, or commit these kind of 'crimes'... but the way I see, one way treats these specific situations as exceptional, while the other actually begins to systematize the practice by giving it legal cover.

I'd rather we acted like thug scumbags when the moment demanded, but then apologized for it and accepted the consequences... rather than pay lip service to rights, while progressively undermining them.

If they needed a volunteer to do the shooting, I can name a bunch of acquiantences that would gladly spend their lives in prison in exchage for the satisfaction of icing the guy that killed so many friends and relatives on 9/11.

JG

|9.7.06 @ 2:20PM|#

The Nuremberg trials were just show trials. Does anyone really believe that there was any chance of the Allies letting any of the major Nazi leaders just walk? The Nuremberg tribunals applied standards retroactively against defendants. There was no such thing as the crime of "waging an aggressive war" before Nuremberg. Nuremberg hung Von Ribbentrop whose crime was lying to world leaders and signing treaties that Hitler promptly broke. No leader had ever been tried for a "crime against humanity" and God know lots of leaders, Leopold in the Congo, the British in the Boer War, had committed them.

In a sense Sullum is right; any trial of KSM and company will be a show trial. So what? Being guilty of horrific crimes generally tends to make your trial a bit pre forma.

Gilmore is also right. You can't destroy your criminal justice system by soiling it with defendants who under no circumstances imaginable be allowed to go free. So the answer is you what we did with the Nazis at Nuremberg; create some kind of a extra judicial tribunal that ensures that you have the right people and fully documents their crime and hang the motherfuckers and forget about it.

wingnutx|9.7.06 @ 4:08PM|#

They created a system of rules that required combatants to act overtly in order to be protected.

Bingo. These guys were never protected iunder the Geneva Conventions. We simply have a different term for them these days, 'unlawful combatants' instead of 'spies'.

/sat through many classes on the GC

|9.7.06 @ 4:34PM|#

Wingnutx,

They had GC rights insofar as they were entitled to hearings to determine that they didn't get GC rights. Once you loose your article V tribunal, you are just a scumbag criminal. That is what these guys are. We should have given them their article V tribunals and moved on from there.

thoreau|9.7.06 @ 4:58PM|#

Once you loose your article V tribunal, you are just a scumbag criminal. That is what these guys are. We should have given them their article V tribunals and moved on from there.

How do you propose dealing with people who are suspected to be criminals?

|9.7.06 @ 6:34PM|#

The Nuremberg trials were just show trials. Does anyone really believe that there was any chance of the Allies letting any of the major Nazi leaders just walk?

They were mostly Stalin's idea anyhow. Churchill certainly didn't see any need for them.

It's been down hill ever since.

|9.7.06 @ 9:38PM|#

why not just give a speech, maybe with slides, laying out each prisoner's crimes and explaining why it's impractical to try him? Then the president would at least get points for candor.

Despots don't need candor. They need control. If they have to show they need points for candor, they aren't in control.

|9.7.06 @ 11:29PM|#

Shannon,

Well said, as usual. :)

Despots don't need candor. They need control. If they have to show they need points for candor, they aren't in control.

Ugh. Its almost gotten to the point where I *wish* Bush was really a despot, so he'd lock you idiots up and I wouldn't have to listen to your paranoid ranting anymore.

Robert|9.8.06 @ 1:34AM|#

I agree with Gilmore's idea, except it should be done secretly and denied if asked. People should hide what should be hidden, and be open and scrupulous about what should be open & scrupulous, and not confuse the two realms.