‘Let the jury consider their verdict,’ the King said, for about the twentieth time that day.
‘No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’
—Alice’s Adventures in Wonderland
Nearly 10 years after the 9/11 attacks, it’s becoming increasingly clear that Osama bin Laden, Khalid Sheik Mohammed, and the rest of the leadership of al Qaeda have won the war they set out to fight.
Al Qaeda, a small terrorist organization that should be completely incapable of presenting any genuine threat to the fundamental welfare of the United States, has always understood that it could still win a great victory by creating a climate of irrational fear and rampant hysteria inside the most powerful nation the world has ever known. Al Qaeda’s leaders gambled that a single spectacular terrorist incident would trigger a massive and long-lasting overreaction on the part of the U.S. government, and that the nation would be plunged into a state of culturally sanctioned panic, which would cause us to betray many of our most basic values in the illusory pursuit of a world in which we were “safe” from “the terrorists.” In short, if al Qaeda really does “hate us for our freedoms,” then its ultimate triumph has been its ability to get us to act as if, in many instances, we have come to hate those freedoms as well.
The Obama administration’s announcement that Mohammed and four other Guantanamo detainees will be tried before military tribunals rather than in civilian courts is just the latest evidence that al Qaeda’s gamble has paid off, to an extent that must be approaching the group’s most feverish dreams.
Obama’s egregious flip-flop on this issue, which has been in the making almost since the day he took office represents a particularly striking example of the many profiles in cowardice that have marked American politics since 9/11. As a presidential candidate Obama argued that the American criminal justice system was more than capable of prosecuting cases against terrorist suspects. But as president, he soon realized there was no political percentage in standing up for such abstract notions as due process of law, or the more concrete idea that it shouldn’t be in any president’s power to keep someone in a cage indefinitely because that person has been declared by the president to be too dangerous to walk free.
A criminal justice system that only bothers with trials when it’s certain of winning convictions, and otherwise simply locks up suspects for life, is a mockery of justice.
So the administration went about fashioning a Kafkaesque system of “justice.” Terrorist suspects who the government was certain could be convicted in regular U.S. courts of law would get real trials. Suspects whose conviction might prove difficult in real courts—because, for example, crucial evidence against them had been procured by torture and was therefore not admissible—would be shuttled off to military commissions: special tribunals featuring Justice Lite, i.e., relaxed evidentiary rules, and whatever other made-to-order procedures were needed to ensure conviction in what otherwise might be problematic cases for the prosecution. And suspects who might not even be able to be convicted by such commissions but who were still too dangerous to release would simply be “detained” indefinitely. (If it occurs to you to ask how the government can justify permanently locking up someone who can’t even be convicted in a kangaroo court specially designed for the purpose, it’s safe to say you’re not suited for this line of work.)
All of this is an abomination not merely as a matter of principle, but even in purely practical terms. There isn’t a shred of evidence that our criminal courts can’t achieve something very close to a 100 percent conviction rate for people who have been charged with terrorism-related crimes, a category so broadly defined under federal law that it includes such things as giving any financial support to any group that has been classified as a terrorist organization. The federal courts have been averaging more than 50 terrorist convictions a year since 9/11.
As for principle, a criminal justice system that only bothers with trials when it’s certain of winning convictions, and otherwise simply locks up suspects for life, is at bottom indistinguishable from what we would instantly recognize as a mockery of justice if it were being carried out in any country but our own.
It would be very unfair to lay all of this at the feet of President Obama, of course. For one thing, he is merely pursuing the Bush administration’s policies in these matters and has even drawn back from a few of the worst aspects of those policies, most notably by barring torture-procured evidence from being admissible in military tribunals. For another, Congress, which last December passed a law essentially barring any civilian trials for Guantanamo detainees, has behaved in an even more repellant fashion than the president.
But beyond all that, the disgusting displays of cowardice, cynicism, and frank hysteria that have dominated the political process since 9/11 are ultimately a reflection on we the people, who have failed to demand better from our so-called leaders. And that failure has handed al Qaeda a victory it could have otherwise never won.
Paul Campos is a professor of law at the University of Colorado at Boulder.