Fighting the Wrong Courtroom Battle

Ever since Attorney General Eric Holder announced that a number of high-profile al-Qaida terrorists were going to be tried in a civilian court in New York City, conservatives have screamed bloody murder--often literally. Probably with the best intentions, they have denounced the decision as a snub to logic and the Constitution, to the safety and emotions of 9/11 survivors and their families, to law and morality. Their arguments are mostly wrong.

There is definitely some truth in their objections, though. The idea that Khalid Sheikh-Mohammed (KSM) ought to be tried in a civilian court is certainly ludicrous. As a war criminal he has no place before a civilian federal judge and the implication of Holder's decision, namely that the military court system does not guarantee defendants' rights adequately, is certainly an outrageous insult to American democracy. But once you have made that step, then only New York City can be the 'logical' choice. As the primary scene of the attack, that jurisdiction naturally has dibs. And yet the objection that many New Yorkers will now have to go through an excruciating media extravaganza, dragging up September 11, 2001 all over again, is no empty claim. These war criminals have no place being in New York to stand trial.

And yet, the battle that many conservatives are waging is the wrong one. For instance, Paul Greenberg, at Townhall.com, insists that the only place for these criminals is in "a secure military court room in Guantanamo." But this is premised on the notion that Guantanamo is outside of the United States, which it is not, as the U.S. Supreme Court has essentially affirmed. The decision by the Bush administration to detain illegal combatants in Guantanamo was naturally based on this perception: that U.S. law would not apply there, since it is only leased from Cuba and therefore technically part of Cuba. Forestalling legal challenges in this manner would buy the administration time to figure out what to do with these people. But through vigorous pursuit in the justice system, opponents of this policy have won the argument and it has been made clear that U.S. law does extend to Guantanamo, and thus that detainees do have certain rights under the Constitution.

This makes the whole notion that Holder is "bringing these terrorists into the US" preposterous. They already are in the United States, even while detained in Guantanamo. They can be tried there or anywhere else--it makes no difference. As long as they are tried the right way: in a military court system, whether the special tribunals set up by the Bush administration (and sanctioned by both Congress and the Supreme Court) or the regular military courts.

Conservative opponents of the Obama administration are making the debate more complicated by focusing on the wrong battle. It is not that we need to keep these terrorists at Guantanamo, come what may, since their location is not of prime importance. By highlighting emotional arguments, such as the feelings of New Yorkers, or the complexity of security during the trial, or the proximity of the court room to Ground Zero, they are losing track of the important arguments and in the process making themselves and other critics of the Obama administration look silly and unserious.

The real problem is, and has always been, making sure the right evidence can be presented without jeopardizing national security by revealing important classified materials. By moving the trial into the civilian court--which has different rules of engagement--Obama and Holder have done exactly that: they have lessened the chances of a legal and convincing conviction of a self-confessed terrorist. Much of the evidence likely won't be admissible in New York's federal court, while some of the other evidence will not be presented because it is classified. This decision has underscored all the more that Barack Obama and Eric Holder simply cannot be taken seriously. Their incompetence has long since stopped "bordering" on being criminally negligent. By putting the United States at risk with such feel-good, ludicrous decisions, they ought to be kicked out of office at the soonest opportunity.