The right's nonsensical arguments against trying Khalid Sheikh Mohammed in New York.
It would be nice if we could call off the trial of anyone with plans to use the proceedings to promote hateful ideas. We could have refused to try all sorts of bigmouths who have used their trials to spread noxious garbage, but we don't. The purpose of a criminal trial isn't to suppress a political message. It's to put forth a better political message: Namely, that we believe in our legal system. We've let Ku Klux Klansmen and neo-Nazis and abortion-clinic bombers and Moussaoui use their trials to spew their hate—and if it's been great for their recruitment efforts, so be it. The notion that we give criminal trials only to people who speak respectfully about America has yet to be enshrined in the Constitution.
Another pointed critique of the New York terror trials comes from former prosecutor Andrew McCarthy, who tried Sheikh Omar Abdel Rahman for the 1993 World Trade Center bombing. His argument is that all the 9/11 terrorists will eventually walk free as a result of a "perverse new legal system, an ad hoc creation of progressive federal judges, assisted mightily by an Obama Justice Department rife with lawyers whose former firms and institutions spent the last eight years representing America's enemies." According to this critique, the problem isn't only that the accused may turn the trials to their own advantage. It's that the U.S. judicial and executive branches are overrun with people who really like terrorists and want them to prevail.
So we're not just rolling the dice when we let them into a courtroom, as the likes of Giuliani, Palin, and Hoeskstra would argue. We're actually playing with a loaded set.
But the award for the most surreal critique of the plan to try 9/11 terrorists in the federal courts goes to John Yoo, writing today in the Wall Street Journal. Yoo warns, apparently without irony: "KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens—including the right to demand that the government produce in open court all of the information that it has on them, and how it got it." Wait, wait. John Yoo—isn't he the same guy who is being sued for creating the legal structure that justified the entire U.S. torture program? And now he's saying he opposes open trials because he doesn't want the world to learn secret information, like how evidence was gathered from a man who was water-boarded 183 times? Curious.
The common stance in much of the wailing over the decision to try terrorists in civilian courts—something we have already done 195 times—is a willingness to sacrifice legal principle to political symbolism. It's one part fear-mongering ("KSM will explode into a lethal ninja and kill people with his laser-eyes the very minute we bring him stateside!"), one part war-mongering ("We are still at war I tell you! War!"), and one part self-justification-mongering ("No, seriously—water-boarding is totally legal! But let's not talk about it in court"). Of course, these aren't so much legal arguments as political theater. And it's hardly surprising that, after eight years of insisting that the law doesn't apply to extremely bad people, opponents of Holder's decision are now focusing their arguments on the bad people, not the law. Still, it's awfully depressing to keep hearing that the only thing wrong with the criminal justice system is the criminals themselves.
Dahlia Lithwick writes about the courts and the law for Slate.