As we seek to come to grips with Eric Holder’s decision to bring Khalid Sheikh Mohammed to New York City for a full blown civilian trial with all the trimmings, the people most affected would seem to be the denizens of the Empire State and the Big Apple themselves.
After doing some digging and a few brief interviews, I’ve found that attitudes seem to be mixed and, more surprisingly, don’t really fall into any sort of neat, party line divide. Mayor Bloomberg, a man occasionally described as a Republican, has come out in favor of the decision, and expressed his confidence in Gotham’s ability to maintain security during the impending circus and deliver a fair result. The state’s Democratic governor, however, provided a rather mild rebuke, claiming, “This is not a decision that I would have made.”
These contradictory responses which cross the expected party lines may have as much to do with the two men’s professional situations as it has with the wisdom (or lack thereof) of the decision. Governor Paterson is in the middle of the political fight of his life, with approval numbers bottoming out near those of Congress, and enemies – from both within his own party and from the Republicans — eyeing his seat in the governor’s mansion with hungry looks. He clearly has his finger in the wind and doesn’t want to come down on the wrong side of a story which obviously has many New Yorkers feeling out of sorts.
Bloomberg, on the other hand, is coming at this fresh from a massively expensive election where he barely held on to his office. Realizing that he would be given no choice in the matter anyway, it’s not difficult to see how he would seek to project an image of strength and control. He’s strutting his stuff in a confident manner, expressing not only his faith in the judicial system, but in Police Commissioner Kelly’s ability to keep security tight during the affair.
America’s mayor, Rudy Giuliani – frequently mentioned as a possible seeker of Paterson’s job — came out with some of the harshest criticism of Holder’s announcement. But as George Stephanopoulos pointed out to him, Rudy seems to be as confused about how to handle these cases as President Obama. Back when Zacarias Moussaoui was put on trial in similar fashion, Giuliani described the process as a “symbol of justice.”
Conversely, the president had a moment back in the day when he was perfectly happy to see KSM go before a military tribunal. Tribunals are good! Then, after taking office, he denounced the practice. Tribunals are bad! And now, Khalid and his cronies will have a civilian trial, but another group of bombers will take the military route. Tribunals are good … except when they’re bad!
In other spots around the state, opinions seem to cover the entire spectrum. I spoke to an associate (anonymous by request) who does some work with Senator Kirsten Gillibrand’s office who described the general mood as cautiously optimistic.
It looks like a very big political move that could pay off. If this thing goes off without a hitch, then it will be a huge feather in the administration’s cap. Of course, if there’s some sort of terrorist attack or the trial melts down into O.J. Simpson Part Two, then it’s going to be a huge debacle.
A friend who works for one of our Republican state legislators took a much more sour tone, describing it as a disaster.
“New York has enough to worry about,” she said. “What do you think the odds are that somebody just shoots this [expletive deleted] terrorist as soon as he gets off the plane?”
I was personally on the fence about this decision after word of it first leaked out last week. I freely admit that my own personal bias has colored my view of how to proceed. Frankly, all I cared about was coming up with some sort of guilty verdict, if possible, and executing the man. If this meant a civilian trial, a military tribunal, or simply an unfortunate “accident” en route to his home country, then so be it. But satisfying my mean-spirited desires doesn’t bring us any closer to a long-term resolution of the real problem which this controversy is bringing to light.
Plenty of arguments have been made about how to proceed in the Global War on Terror and GWOT hawks have become quite comfortable in tossing around the phrase “enemy combatant.” Unfortunately, this is a phrase lacking critical definition in our legal system. Congress made some progress by approving procedures for military tribunals, though they were initially rejected by the Supreme Court and then later approved with revisions. But the fact remains that the very nature of war changed radically in the latter part of the 20th century while we continue to work within a judicial system mostly rooted in a pre-Vietnam mindset.
As much as the hawks will gnash their teeth to hear this, Khalid Sheikh Mohammed and his buddies are not uniformed members of the recognized military of any nation. They are, in fact, civilians after their own fashion. Therefore, treating them precisely like a prisoner of war — such as we did during World War 2 — is a process full of more holes than a Swiss cheese. But we are clearly moving toward remedies which seek to treat them differently than any other non-citizen who comes to our shores and commits a crime. But this path is also fraught with dangers.
For a brief thought experiment on the subject, imagine if a group of deranged Canadian fans of Michael Moore finished watching his latest box office flop and decided to fly down to New York. Upon arrival, they begin shooting stock brokers as they emerge from their offices, all the while chanting slogans about the evils of capitalism. Are they criminals? Or are they enemy combatants?
They fail to meet the normal standard for terrorist treatment in two regards:
- They are stubbornly “non-foreign” in appearance, with white skin and a command of the English language.
- They are not Muslims.
And yet, they are foreigners committing a wide-spread crime involving significant loss of life while spouting propaganda which directly conflicts with one of the foundations of our democracy. What do we do with them?
The more we blur the lines between military and civilian defendants, the closer we come to undermining some of the bedrock assumptions upon which our nation was founded. Nidal Hasan provides us with another example of this quandary. He is conveniently a member of our military, and therefore subject to a different system of justice than the average American. (That being the Uniform Code of Military Justice.)
But what if he had been a civilian family member or base employee? Would he be a criminal or a terrorist? The man is an American citizen and entitled to the same protections as the rest of us. But if we begin challenging some of these long held definitions, could American citizens lose some of their constitutionally assured rights and be lumped into military tribunals with the likes of KSM? It’s an unsettling thought.
It seems clear that more work remains in our efforts to redefine our legal system to handle the challenges of war in the modern era. While it will fall upon Congress to do the heavy lifting, the president needs to be leading the way in setting the direction for these changes. By sending one group of terrorist to New York’s civilian courts and another to face a closed, military tribunal, Barack Obama is simply further muddying the waters. We need a clear process to handle cases such as this which will punish the guilty while still ensuring that our nation remains a beacon of justice and American citizens maintain the rights to which they are entitled. Thus far, we’re not getting any real resolution and politics appears to be trumping the need for constitutional clarity.