The right's nonsensical arguments against trying Khalid Sheikh Mohammed in New York.

The law, lawyers, and the court.
Nov. 16 2009 7:12 PM

Manhattan Transfer

The right's nonsensical arguments against trying Khalid Sheikh Mohammed in New York.

Khalid Sheikh Mohammed. Click image to expand.
Khalid Sheikh Mohammed

Opposition to the Obama administration's plan to try alleged 9/11 mastermind Khalid Sheikh Mohammed and his confederates in a federal court in New York City is hardening into two camps. One is concerned that we may be unwittingly playing into the terrorists' hands. The other is incensed that we already have. What both camps share, besides a kind of unhinged logic and complete disregard for the legal process, is an obsessive fascination with the accused. The result is a broad willingness to sacrifice our commitment to legal principles in favor of the symbolic satisfaction of crushing the hopes and dreams of a motley group of criminals.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Former New York Mayor Rudy Giuliani, firmly in the first camp, is hopping mad that we are poised to make all the suspect's dreams come true. As he said on ABC's This Week: "Khalid Sheikh Mohammed, when he was first arrested, asked to be brought to New York. I didn't think we were in the business of granting the requests of terrorists."

Funny, that. I didn't think we were in the business of caring one way or another what the terrorists want from us. The criminal justice system is as uninterested in advancing the goals of the accused as it is in frustrating them. The most vocal critics seem to forget that our legal system exists not to grant requests or dash hopes but to bring people to justice.

Giuliani seems to object mainly to trying terrorists in his backyard. Presumably, he would be fine prosecuting KSM in criminal court in Virginia. Or at least he was back when Zacarias Moussaoui was convicted on terror charges. At the time, Guiliani had this to say: "I was in awe of our system ... that we can give people a fair trial, that we are exactly what we say we are. We are a nation of law." What Giuliani objects to, it seems, is the symbolic defeat of trying these defendants in the same place the crime occurred—hardly an exceptional undertaking in the criminal justice system. In his view, it's somehow rude to New York itself to try the terrorists there.

Of course, if you're really determined not to give the terrorists what they want, you can't really argue for Attorney General Eric Holder's plan to seek the death penalty either, since what they want most of all is to be martyred. That makes Sarah Palin's typically thoughtful Facebook post on the subject of the KSM trial so perplexing. In addition to her argument that witnessing the American justice system at work will lead U.S. allies to "become less likely to support our efforts in the future," Palin ends her post with an exhortation to "Hang 'em high." Here's betting there's nothing KSM wants more.

Both Palin and Rep. Pete Hoekstra, R-Mich., are also obsessed with the prospect of allowing these terrorists to have an opportunity to mount a so-called "circus trial." They must be awfully afraid of the other side's message to believe that allowing the defendants to utter even a word in their own defense is to risk recruiting millions of new adherents worldwide. Yet there was Hoekstra claiming on CBS' Face the Nation that terrorists should be denied open criminal trials because they "are going to do everything they can to disrupt it and make it a circus and allow them to use it as a platform to push their ideology."

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.