Recently, the Obama Administration’s plan to bring Khalid Shaikh Mohammed, characterized as “the self-proclaimed mastermind behind the 9/11 attacks,” from Guantánamo and try him and several others in a Federal Court in New York City has made headlines. Those on the right have attacked this decision claiming, among other things, that Mohammed should be kept in Guantánamo, that he does not deserve constitutional rights, and that such a trial will expose New York City to further attacks. Obama supporters counter that this will affirm the rule of law, prove our criminal justice system is up to the challenge, and that this move is long overdue. Hillary Clinton was quoted as saying that New Yorkers deserve to have Mohammed face their justice and receive the maximum penalty, and President Obama has “predicted” his execution. At least one person further to the left has applauded this decision as well. Ted McLaughlin writing in the Rag Blog stated: “The Justice Department has finally decided to do the right thing, and bring Khalid Shaikh Mohammed … to justice in a court of law.”

I hope I’m not the only person in America who thinks the parameters of the debate miss the point. In fact, I find the terms of the discussion nauseating.

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.

Our government’s actions have created an impossible situation. If this guy really was the mastermind of the 9/11 attacks how can he be released? One possibility would be to hand him over to the International Tribunal at The Hague. At least he would be in the hands of a competent tribunal that was not responsible for violating his human rights. Once again, I know this will never happen, and perhaps it is not a very good idea. In fact, I’ve had several discussions/arguments with my wife and brother about these issues. All the solutions I see either do violence to the core principles of human rights and constitutional law I hold dear, or will fail to provide people with the protection they deserve.

Who among you can see a way out of this conundrum? I’d very much like to hear your ideas on this. Here’s the challenge … craft a solution that does not violate our Constitution, that does not undermine basic human rights, and yet still protects the world from a person who may very well be an unrepentant mass murderer. Please post your thoughts as comments to this blog.

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