Free Khalid Shaikh Mohammed?

Despite the headline, I’m not really arguing that we should free Khalid Shaikh Mohammed (KSM), the self proclaimed mastermind of the September 11, 2001 attacks. Once again, however, the debate rekindled by Attorney General Holder’s decision to bow to political pressure and try KSM by military commission at Guantanamo leaves me tearing out what’s left of my hair.

I first addressed this issue in November 2009. Then I wrote: “While it might have been proper to bring Mohammed to New York to stand trial after his capture in 2003, I believe that the government by holding him without charge for six years, water boarding him 183 times and committing who knows how many other human rights violations against his person, forfeited its right to retain jurisdiction over him. “Jurisdiction” is just a legal term for power. In other words I think the fact that one branch of the government (Executive) perpetrated this travesty, a second applauded it (Legislative) and a third (Judiciary) failed to act, means that no branch of our government has the right to hold or judge him.

The government also violated the Geneva Conventions, and the Convention Against Torture. Moreover, the court will have to address the inadmissibility of evidence procured by torture and the impossibility of separating such tainted evidence from proof obtained by other means. The Judge will find a way to clear these hurdles, and perhaps many more, because in the words of Attorney General Holder, “failure is not an option.” And what about finding a dozen “unbiased” jurors? In New York City!!! The imperative of a conviction will predetermine the result. I would love for someone to explain to me how such a sham will affirm the rule of law.”

I still feel, as I did then, that it would be better to turn KSM over to the international tribunal in The Hague for trial. That institution is not responsible for KSM’s mistreatment. I still believe in advocating for this solution, even if our putrid political state renders it impossible.

Seventeen months ago I stated that civil libertarians, who were arguing in favor of a civilian trial as opposed to military commissions, were missing the point. The only thing that has changed since then is the passage of time. True, military commissions with their lack of constitutional guarantees are even worse than civilian courts, but neither is acceptable in these circumstances. Military commissions are a travesty that progressive lawyers must resist, and I can understand the need to offer a positive alternative to them. But we must not lose sight of the bigger picture. By insisting that our court system has both the right and ability to sit in judgment of this man after what our government has already put him through, civil libertarians are undermining the principles they champion. How can they support a trial in which acquittal “is not an option?”

By allowing the trial to go forward won’t our court system be tolerating the intolerable? Some might argue that the solution is to try KSM and his torturers in civilian courts. Both the Obama administration and the Judiciary have made it plain that none of KSM’s tormentors will face any discipline in the foreseeable future. To convict KSH without a guarantee that those who committed crimes against him will face any sanction will have the practical impact of countenancing torture. In other words, allowing a civilian trial of KSH will let the taint of his treatment permeate the judicial process.

I can sympathize with the conundrum this case now presents to human rights attorneys. How can they maintain their commitment to work within the system and admit that it has lost all of its legitimacy in such a crucial instance? Recognizing that the courts can’t craft a just solution is an acknowledgement that the system they are a part of has been so thoroughly compromised that it is unable carry out its charge. It is a devastating realization to face, but dodging it is even worse.

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