Dispatches from the Creation Wars

While the right wing loses its collective mind over the decision to try Khalid Sheik Mohammed and a couple other 9/11 conspirators in federal court in New York, two former Bush DOJ officials puncture their empty fear mongering and defend the decision in the Washington Post. Jim Comey and Jack Goldsmith, deputy attorney general and assistant attorney general respectively during the Bush administration, first debunk the “this makes New York a target” nonsense:

A trial in Manhattan will bring enormous media attention and require unprecedented security. But it is unlikely to make New York a bigger target than it has been since February 1993, when Mohammed’s nephew Ramzi Yousef attacked the World Trade Center. If al-Qaeda could carry out another attack in New York, it would — a fact true a week ago and for a long time.


And point out that there are many problems with the military commissions set up at Gitmo that make this decision perfectly reasonable:

In deciding to use federal court, the attorney general probably considered the record of the military commission system that was established in November 2001. This system secured three convictions in eight years. The only person who had a full commission trial, Osama bin Laden’s driver, received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge.

One reason commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the commissions’ validity. This uncertainty has led to many legal challenges that will continue indefinitely — hardly an ideal situation for the trial of the century.

By contrast, there is no question about the legitimacy of U.S. federal courts to incapacitate terrorists. Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.

And the “this will lead to secret information being released in public” argument:

In terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant’s ability to raise irrelevant issues and tightly controlling the courtroom. Moussaoui’s trial was challenging because his request for access to terrorists held at “black” sites had to be litigated. Difficulties also arose because Moussaoui acted as his own lawyer, and the judge labored to control him. But it is difficult to imagine a military commission of rudimentary fairness that would not allow a defendant a similar right to represent himself and speak out in court.

In either trial forum, defendants will make an issue of how they were treated and attempt to undermine the trial politically. These efforts are likely to have more traction in a military than a civilian court. No matter how scrupulously fair the commissions are, defendants will criticize their relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them. Some say it is wrong to give Mohammed trial rights ordinarily conferred on Americans, but a benefit of civilian trials over commissions is that they make it harder for defendants to complain about kangaroo courts or victor’s justice…

Of course, the attorney general made a different call on Mohammed than did the Bush administration. The wisdom of that difficult judgment will be determined by future events. But Holder’s critics do not help their case by understating the criminal justice system’s capacities, overstating the military system’s virtues and bumper-stickering a reasonable decision.

And if anyone thinks there’s even the tiniest chance that KSM will be found not guilty, they are hopelessly naive. There’s no way in hell the Obama administration does this without being 100% certain that they have the evidence to convict him in court. This is, in fact, a show trial – not in the sense of being a sham, it will be entirely legitimate and legal — but in the sense of being done to show the rest of the world that we are making an attempt to live our convictions consistently and honestly.

The real argument here is the inconsistency; if we’re doing that with KSM, why not with the other detainees too? But the right wing can’t make that argument. So as with nearly every other issue in the last 6 months, they can’t coherently make the legitimate argument against Obama’s actions, so they’re stuck with making the most ridiculous, overblown and exaggerated arguments.