Who
Needs Trials? With Freedom In A Country Post-9/11
23 March 2010By Jacob G. Hornberger
The Washington Post has just published an op-ed that
pretty much sums up where we’ve arrived as a country,
post-9/11, thanks to both conservatives and liberals.
The op-ed is entitled “KSM’s Dispensable Trial” and is
co-authored by Jack Goldsmith, who served as an
assistant attorney general in the Bush administration,
and Benjamin Wittes, who serves as research director
in public law at the Brookings Institute. Both of them
are also associated with the Hoover Institution.
Goldsmith and Wittes have come up with an ingenious
way to resolve the standoff as to whether Khalid
Sheikh Mohammed and the other alleged Sept. 11
conspirators should be tried in a military tribunal or
in federal court. Their solution? No trial at all!
Just let the military keep them incarcerated for the
duration of the war on terrorism, which would
essentially amount to life sentences.
As audacious as the proposal might sound, it actually
is quite logical, once one has bought into the
war-on-terrorism paradigm.
What Goldsmith and Wittes are saying is that the war
on terrorism is a real war, just like World War I and
World War II. Therefore, since prisoners of war in a
real war can be kept incarcerated until the war is
over, there’s no problem with holding terrorists until
the war on terrorism is over, which isn’t likely to
happen for a few decades.
They also point out that even if the suspects were to
be acquitted in either federal court or by military
tribunal, the feds wouldn’t release them anyway. Why?
Because they’re alleged terrorists who are waging war
against the United States. Thus, if they’re not going
to be released anyway, Goldsmith and Wittes say, then
what’s the point of having a trial?
One interesting aspect of the op-ed is a particular
adjective that the authors employ in the very first
sentence of the article. The adjective is “alleged.”
They refer to “Khalid Sheikh Mohammed and the other
alleged September 11 conspirators.”
Why would they use that adjective? It seems to me that
the use of that adjective expresses some degree of
doubt as to whether the people they want incarcerated
for life without a trial are actually guilty. Why not
simply describe them as “the September 11
conspirators” or as “the terrorists”?
What Goldsmith and Wittes seem to be saying is: “We
don’t need no stinking trial to determine whether
these people really are guilty of terrorism. It
doesn’t matter whether they’re guilty or not. We’re at
war and we’ve got to put our total faith in our
government to make this determination without a trial.
If innocent people are incarcerated for the rest of
their lives, so be it, especially if by doing so we’re
kept safe. ”
An obvious problem arises, one that Goldstein and
Wittes do not address: What about alleged Americans
terrorists? The issue is simple: Why should alleged
American terrorists be treated any differently than
alleged foreign terrorists? After all, an alleged
terrorist is an alleged terrorist, right? Just ask
Goldsmith himself. He was serving in the Justice
Department when the U.S. military was doing to an
alleged American terrorist precisely what Goldsmith
and Wittes now claim should be done to alleged foreign
terrorists — incarcerating him indefinitely and
denying him a trial — and, of course, claiming the
war-on-terrorism authority to do the same to every
other American alleged to be a terrorist.
Another problem that Goldsmith and Wittes fail to
address is one relating to the U.S. Code, the statute
book that enumerates the federal criminal offenses
enacted by Congress. It includes terrorism among the
federal crimes, which is precisely why alleged
terrorists have traditionally been prosecuted in U.S.
District Court.
Presumably, Goldsmith and Wittes would say that the
U.S. Code provisions on terrorism have become moot
because, they would say, U.S. officials have the power
to convert criminal offenses into a real war, as they
did after the 9/11 attacks.
But that obviously raises another big problem: Where
does such a power come from? It’s certainly not
included in my copy of the Constitution. I wonder what
Goldsmith’s and Wittes’ position would be if the feds
decided to do the same thing in the war on drugs.
After all, as Mexican officials will attest, the
alleged drug lords are killing many more people than
the alleged terrorists. Would it be acceptable for
U.S. officials to suddenly convert drug offenses to
acts of war, enabling them to circumvent trials and
the Bill of Rights for those crimes too?
By the way, Pakistani officials have decided to charge
and prosecute those five young Americans who traveled
to Pakistan to allegedly become terrorists. As bad and
corrupt as the Pakistani judicial system must be, the
men ought to be counting their lucky stars. At least
in Pakistan, they get a trial.
Jacob Hornberger is founder and president of The
Future of Freedom Foundation.
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