The Emotional Logic of Trying KSM in Federal Court


By Joe Campbell
November 19th, 2009

[digg-reddit-me]This is the response of a friend of mine on her Facebook page to the news that Khalid Sheikh Muhammad and 4 other detainees were going to be tried in federal court in New York.

When I heard the news, my first response was different: “Good. Finally we’re starting to deal with this mess,” the mess being the uncertain state of detainees and whether along with the many unresolved issues stemming from September 11. There was a kind of satisfaction – that we would finally be making progress, that decisions were being made, that the limbo that has been in place since September 11 would finally be resolved.

But I hadn’t anticipated the emotion it would stir up in many others, who reacted with a kind of visceral disgust. Most of the various reasons used to justify this disgust are manageable issues: the disclosure of classified information; the use of the trial as a platform for Al Qaeda propaganda; the security threat to New York City; the possibility of an acquittal; and whether terrorism should be treated as a crime or an act of war.

I don’t see any of these reasons as explaining the visceral reaction. They are the rational explanations we reach for after we reach our decision, rather than what compels us to come to the decision.

It is my opinion – and I want to make that clear as I am merely speculating as to what other people believe – that this issue has been such an emotional one because a trial of KSM would represent a kind of emotional closure to the trauma of September 11. Thus, the stakes are high. For 8 years, the Bush administration seemed unwilling or unable to move beyond the trauma of that day. They created an ad hoc legal structure to deal with terrorism that was often parallel and inferior to what was already in place. Surely compromised in their panic, they authorized the brutal torture of many guilty men and some innocent. Without in depth knowledge of the organization or the area of the world in which it operated, they simply decided to use their most valuable resource: money; they offered bounties to militias for each person they brought in, without any consistent way of evaluating whether these people brought in were guilty of anything or were knowledgeable about anything relevant. They were unwilling to let any person who had been captured free, on the chance that they might be wrong, and so held innocents as prisoners for years. In this climate of fear, a hunch of an investigator was enough to hold a man prisoner for years without any evidence and without any trial and without any accountability. While the Bush administration gradually scaled back the worst abuses, often due to court or rarely, Congressional, intervention, it never repudiated the precedents it set in the panic, precedents that if invoked would create an authoritarian executive.

This is what bothered most of the liberals, what they feared. They saw in Bush’s immediate response an understandable panic, but in the precedents he set by refusing to repudiate the measures he took, the seeds of the destruction of our republic.

On the other hand, what I believe underlies right wingers’ (and others’) defense of these precedents is a lack of faith in America’s system of justice. This lack of faith is evidenced by the right wing characterization of our courts as “liberal” or ‘left-wing” despite the fact that a sizable majority of judges have been appointed by Republican presidents. It is evidenced by the caricature of our criminal justice system and our tort system that the right wing promotes – a caricature in which hard-working, innocent corporations are persecuted by greedy trial lawyers and criminals are set free on technicalities. (See Footnote.) Those who already distrusted our justice system found in September 11 further proof of this – as they blamed our courts for releasing information to Al Qaeda, for letting terrorists free, and for undermining investigations into terrorism. An alternative justice system was created within the military to deal with those suspected of terrorism, one in which initially, suspects had few rights – whether to call witnesses in their defense, to question their accusers, to be presumed innocent, to see evidence held against them, or even to be released if despite all of this, they were found innocent. Not surprisingly, this unjust system caused a number of the military’s judge advocates and prosecutors (including the Chief Prosecutor) to resign in protest. Some of the worst flaws in this military commission system have been fixed, as courts and Congress intervened – but the system has been delegitimized in the view of much of the world. Most defenders of this system of military commissions opposed the fixes at the time as well.

This is where we stand today. There is an emotional logic to the decision and to the responses that informs the debate far more than the mere facts and policy issues.

The purpose of terrorism is to undermine the legitimacy of the state. The rule of law and our justice system is at the core of what makes a state legitimate, what allows a state to gain the informed consent of the governed. By creating an alternative justice system to deal with terrorism, we – to put the matter in the strongest terms – preemptively give up one of the core foundations of the state’s legitimacy. This only makes sense if our justice system itself is fundamentally corrupt and/or illegitimate, or if terrorism in some way invalidates it.

Trying Khalid Sheikh Muhammad in an open trial in federal court in a system with well-known precedents and rules demonstrates that the 3 successful attacks on September 11 failed to bring down our justice system along with the towers. He will be tried; given the evidence against him, he will almost certainly be found guilty; and then he will be executed. (Though I oppose the death penalty, but there are exceptions to every rule.) That will be the sternest measure of justice we can give him on earth. After that, we must trust to powers beyond our own to mete out the appropriate suffering.

Footnote: There are examples which demonstrate this caricature, and which refute it, and there are common sense reforms which could reduce the instances of abuse of the system.