Putting “Political Ideology Ahead of Safety”

Senator John Cornyn of the Great Republic of Texas knows when a man needs killin’.  And accused mastermind of the 9/11 attack on the World Trade Center, Khalid Sheikh Mohammed, is just such a man in Cornyn’s eyes.  Forget all the talk about how safety is jeopardized by putting him on trial in a “civilian court” like a “common criminal.”  They know better.

The fear is clear.  If KSM is tried in the Southern District of New York, liberal Manhattan jurors won’t vote to execute him. 

But one challenge in seeking the “ultimate justice” is New York’s jury pool, which is generally perceived by prosecutors and defense lawyers to be more liberal than other places.

Indeed, the last executions in federal cases in Manhattan occurred in the 1950s, most notably the case of the Rosenbergs.

While our United States Senators, including the amorphous Joe Lieberman of Connecticut, are busy playing the crowd, they are well aware of silly inflammatory nature of their rhetoric about the inability of our federal courts to deal with this trial. 

Sen. Joe Lieberman, I-Connecticut, agreed with [Texas Rep. Lamar] Smith that suspected terrorists ought to be tried by military commissions.

“It is inconceivable that we would bring these alleged terrorists back to New York for trial, to the scene of the carnage they created eight years ago, and give them a platform to mock the suffering of their victims and the victims’ families, and rally their followers to continue waging jihad against America,” he said in a statement.

Since when is a trial a “platform to mock the suffering” of anyone?  It makes it sound as if KSM gets to control the proceedings, as if the federal judge who conducts this trial will be a willing accomplice in stage show designed to encourage jihad.  Please. There is nothing KSM can do that will make him appear appealing to America or most the world.  As for those who agree with him, he will be the martyr no matter where the trial occurs. 

What is most troubling about these politicians is their efforts to deliberately convey to the public the belief that the legal system, the Constitution, only applies when it suits them.  The fact that there is a dispute over the propriety of trying KSM in New York demonstrates that they’ve been very effective in crafting a belief that anyone labeled a “terrorist” falls outside the realm of the criminal justice system.

Republican lawmakers and the self-promoting independent senator from Connecticut, Joseph Lieberman, pounced on the chance to appear on television. Despite all evidence to the contrary, they said military tribunals are a more secure and appropriate venue for trying terrorism suspects. Senator John Cornyn of Texas, a former judge who should have more regard for the law, offered the absurd claim that Mr. Obama was treating the 9/11 conspirators as “common criminals.”

Don’t blame Cornyn and Lieberman for seizing the opportunity, but question why anyone would take them seriously.  For better of worse, the United States has developed a methodology for determining whether anyone who has committed an offense against our nation.  Theoretically, this methodology comports with the demands of the Constitution, the fundamental framework for the operation of our government and its assertion of authority over others.  These Senators took an oath to uphold this Constitution.

Yet they jump through hoops, blurt out inflammatory claims as if our system only applies to “common criminals,” and seek to delude the public with false claims that the system upon which American justice is grounded is suddenly incapable of dealing with an incoming flight from Gitmo?  They suggest that there must be another secret America, where trials are conducted in secret to protect our ears from the evils of torture and our people from the threat of still more jihadist bombers?

Here’s a newsflash.  We already know about the waterboarding.  It’s been in all the papers.  We know that KSM was subject to waterboarding 183 times.  That’s old news, and the disclosure at trial isn’t going to surprise anyone.

Here’s another newsflash.  If the jihadists want to blow up a building to show us what they think of our system, our “freedoms”, there are plenty around.  We’ve got a country filled with big building built from Indiana limestone, and even if KSM is tried in a newly built courtroom on the Island of Cuba, they can still blow one up in Nebraska and capture our attention.

We have one thing to offer in support of our position that America represents freedom, democracy and the rule of law, even in the face of difficult and troubled times.  Our adherence to our own principles.  I know, this seems wrong to those who never really like the idea of giving a terrorist a better shot than he gave us, but that’s what distinguishes us from them.

And our Senators know all this, so I’m hardly telling them anything new.  This is just the surrounding fluff to make palatable their real reason for their vigorous opposition to trying KSM in Manhattan.  They just don’t trust New Yorkers to put him to death.  It’s that simple.  And the funny thing is, they’re probably right.

The question isn’t whether we’re capable of trying Khalid Sheikh Mohammed, but whether America could stand letting Khalid Sheikh Mohammed live after the trial. 

But before we leave the “political ideology” front, Jonathon Turley asks a very good question.

The decision to send some detainees to military tribunals, however, is a baffling contradiction. Holder has denied the Administration the high ground in the debate by trying to appease both sides and deny due process to some of these accused individuals. It is a case of snatching hypocrisy out of the jaws of principle.
Just as Cornyn and Lieberman can’t have two Americas, neither can Holder.

18 comments on “Putting “Political Ideology Ahead of Safety”

  1. Kevin Forrester

    The question of whether of not the perpetrators of 9/11 should be tried as “common criminals” in Federal Court in New York City has already been answered “no” by former assistant U.S. Attorney Andrew McCarthy, who investigated and prosecuted the “Blind Sheikh” as a common criminal in Federal Court in New York City for the 1993 World Trade Center bombing. (See Willful Blindness: Memoir of the Jihad.)

    Then-judge Michael Mukasey, who presided over the Blind Sheikh trial, is of the same opinion. Not for the reason that it cannot be done (because, obviously, it can be done), but because Article III Federal Courts are not the proper forum, for myriad other reasons, for trying these “terrorists.” (Again, see Willful Blindness.)

    Our current Attorney General has quite literally “punted” on the forum question. The most generous gloss that can be put on Mr. Holder’s action is that he didn’t understand the question.

  2. SHG

    Yeah, well, uh, no.  Mukasey’s strongest argument was that it would cost too much in overtime, And Andy McCarthy, who I enjoyed working against when he was a SDNY prosecutor, is an arch conservative who sees little issue with star chambers to get rid of all the messy details that exist in a constitutional democracy.  Of course, if you’re inclined to believe that our Constitution only applies if and when it’s convenient, which I gather is your view, then maybe you would be inclined to agree with Andy.

    On the other hand, your punted comment makes no sense at all.  Trying a case in a court isn’t a punt. It’s how we do things in the United States.  But obviously, you’re not nearly as much a fan of the concept as you are of Andy McCarthy.

  3. Kevin Forrester

    Johnathan Turley, who it seemed you cited with approval at the end of your post, called Mr. Holder’s decision to send some detainees to military tribunals, and some to federal court, a “baffling contradiction.” I call it a “punt,” a failure to decide.

    If you prefer baffling contradiction, I won’t argue the point. Baffling contradiction it is.

    I will argue your point that I’m inclined to believe that our Constitution only applies if and when it’s convenient. The Constitution applies if and when it applies, and there is an entire library of Supreme Court opinions that demonstrate that this is not an easy question.

    If you will describe from what you “gather” that my opinion is that our Constitution only applies if and when it’s convenient, I’d be happy to respond.

  4. Windypundit

    I guess I must be a bleeding heart liberal then, because I was wondering how Khalid Sheikh Mohammed can get a fair trial in New York when it seems that half the jury pool either witnessed the crime as it happened or knew one of the victims.

  5. SHG

    Now that you’ve explained your “punt” statement, I have a better understanding of your point.  I still don’t see it as a punt, but I do agree that Holder’s position on jurisdiction lacks consistency.

    You confuse “an entire library” of Supreme Court decisions with a rational, consistent vision of the applicability of the Constitution.  The Supreme Court’s existence has been spent carving, recarving, uncarving, and carving again, exceptions from the Constitution.  One can either have a principled view of the Constitution and its overarching applicability to the way the United States functions, or one can fall back onto varying, ever-changing exceptions and excuses for avoiding the hard work of living in a Constitutional Democracy.  It’s not easy being true to principle, even when it’s inconvenient, costly or burdensome. 

    Nowhere does our Constitution provide for the creation out of whole cloth of a new classification of people, now called enemy combatants, who are subject to American justice but outside Article III.  These are not soldiers of a sovereign, nor are their acts outside of our system of justice because someone chooses to categorize them as acts of terrorism.  This doesn’t exist under our structure of government, and no branch of government can cause it to exist because our Constitution doesn’t allow for it.

    So, do you believe in the Constitution, or is it a problem to circumvent?  And if you don’t believe in the Constitution, and seek to apply it even when inconvenient, then it would appear that you really don’t care to be an American, for our Constitution is what distinguished our nation from others.

  6. Kevin Forrester

    I agree with Edwin Meese when he states on page 1 of The Heritage Guide to the Constitution, that “William Gladstone was right in 1878 when he described the U.S. Constitution as ‘the most wonderful work ever struck off at a given time by the brain and purpose of man.'”

    And at page 8, where Meese states that “[t]he Constitution – the original document of 1787 plus its amendments – is and must be understood to be the standard against which all laws, policies, and interpretations should be measured. It is our fundamental law because it represents the settled and deliberate will of the people, against which the actions of government officials must be squared. In the end, the continued success and viability of our democratic Republic depends on our fidelity to, and the faithful exposition and interpretation of, this Constitution, our great charter of liberty.”

    And I agree with Justice Clarence Thomas when he says “there are really only two ways to interpret the Constitution — try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.” (The Wall Street Journal, October 20, 2008.)

    Yes, that means that I adhere to the originalist approach to constitutional interpretation, as described by Meese, and Bork, and Scalia, and Thomas. That does not mean that I believe Meese or Bork or Scalia or Thomas or McCarthy or Mukasey is always right on everything all the time, nor does that mean that I believe our Constitution, in your words, is “a problem to circumvent.”

    Our Constitution is the most important document existing in our government of laws, and we ignore it at our peril.

  7. Turk

    The decision to send some detainees to military tribunals, however, is a baffling contradiction.

    Not baffling at all. I presume the evidence against KSM is slam dunk with evidence obtained from regular (non-torture) sources.

    A civil trial diminishes his stature from one of “mastermind” to “common criminal.”

    No one ever heard of the others, so no one cares, and they are convicted in a military trial that is at times closed to the public b/c of the source of the evidence.

    And thus Holder/Obama show the world we have a fair system by having a trial for KSM and simply ignoring the other stuff.

    It makes all the sense in the world so long as one looks at logistics and practicality and ignores constitutional philosophies.

  8. SHG

    It’s amazing how fealty to the same document can manifest is such remarkably different ways. Clearly, you adhere to an arch conservative agenda.  It will likely not surprise you that you will persuade no one here when you hold Justice Thomas out as a paragon of constitutional integrity.

  9. Steve G

    My first draft of this comment was filled with sarcasm, but I have decided this is inappropriate.

    So I will simply comment.

    The International Criminal Court is built for situations like this isn’t it?

    A reasoned judgement rather than “guilty” would be particularly helpful in this case in negating shouts of “kangaroo court” etc.

    Lack of death sentence as an option would mean the Jihadist would be denied his aim, martyrdom, and would stop others seeking that aim, to follow in his footsteps.

    Just a thought

    From across the pond

  10. SHG

    The International Criminal Court wouldn’t possibly do.  After all, the US isn’t a party to it and could not possibly recognize it, lest we be judged.  Obviously, the US cannot be judged by others, for we are the United States and no one judges the United States.  (Hope that filled the sarcasm void).

  11. John David Galt

    I believe the greatest damage the terrorists did to our country, whether they intended it or not, was to replace our “nation of laws and not of men” with an emergency military dictatorship. Giving these men normal, criminal trials is not a favor to them. It’s about us, and our need to remember who we are. America *is* the presumption of innocence. We can’t afford to abandon that principle every time some monster commits an atrocity against us. If we did, we’d be China.

    Besides, look on the bright side. Once Mr. Moussaoui sees the welcome he gets from the general prison population in Marion, IL, he’ll really, really, wish he’d gotten that death sentence instead.

  12. Steve G


    Actually we are the presumption of innocence.

    You were the Salem witch trials and Mccarthyism.

    Your incarceration rate and use of the death penalty puts you right up there with China doesn’t it?

    Though they are far more efficient at it, it has to be said.

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