You can’t please all of the people all of the time, but President Obama and his Attorney General, Eric Holder, have got nearer than most to pulling it off. A week ago Holder announced that Khaled Shaikh Mohammed and four alleged co-conspirators will soon go on trial in federal court in New York for planning the attacks of September 11, 2001. After a week’s uproar it’s fair to conclude that this was smart politics on the part of the Obama team. The fact that Holder, a man with famously sensitive political antennae, told the press that political considerations played “no part” in his decision only buttresses this judgment. The prime function of all US Attorneys General is to loyally undertake the political requirements of their President.
The scenario envisaged by Obama, his chief of staff Rahm Emanuel and Holder is presumably that somehow a jury of unprejudiced citizens will be convened, and ultimately — hopefully sometime before the election of 2012 — at least Khaled Sjhaikh Mohammed will step into the execution chamber, thus vindicating Obama’s oft-advertised commitment to track down the perps of 9/11 and kill them. So eager is Obama to underline this point that last Friday he declared in Japan that those offended by the trial will not find it “offensive at all when he’s convicted and when the death penalty is applied to him.” This remark came right after his assertion that the trial would be “subject to the most exacting demands of justice.” Realizing that the latter remark might be construed by some pettifogging civil libertarians as prejudicial to a fair trial, Obama then added that he was “not going to be in that courtroom. That’s the job of the prosecutors, the judge and the jury.”
So, in this prospectus, even if the Great War on Terror does not prosper in Afghanistan it will proceed satisfactorily in execution chambers here in the Homeland, with the possible lagniappe of Major Hasan, the alleged Fort Hood shooter, also getting a lethal injection after conviction in a military court.
It’s certain that the legal team mustered to defend KSM and the other four will be reviewing mountains of documents amassed by the prosecution, setting forth the evidentiary chain that led to the indictments of the Ground Zero Five. Of course most of these will no doubt be classified top secret, to be reviewed by defense lawyers only under conditions of stringent security, but it’s certain that enough will be leaked to portray the Bush Administration and Republicans in general in a harshly unflattering light, ignoring profuse indications of the unfolding conspiracy.
For their part — though the smarter among them may worry about disclosures of Bush and Cheney’s incompetence or worse — the Republicans also exult at the opportunity offered them by Holder’s decision to savage the Obama administration as soft on terror by the mere fact of hauling KSM and the others into a US courtroom, as opposed to giving them a drumhead trial by military “commission” outside the jurisdiction and dispatching them without the contemptible procedures of a formal trial inside the borders of the United States. Memories of the O.J. Simpson jury trial and the verdict of not guilty beyond a reasonable doubt, are a strong undercurrent here. In many of the berserk commentaries from the right this last week one can smell the panic and fear that somehow a slimeball defense attorney in the Johnny Cochran mold will dupe a jury (composed, remember, of people solemnly swearing they have an open mind on the case) into letting KSM and the others slip off the hook and stride from the courtroom, free men.
Of course there’s not the remotest chance of that, though it is true, as CounterPuncher Peter Lushing points out, that “a single eccentric juror could hang the jury necessitating a re-trial. Eleven-to-one deadlocks in long trials are not unknown. The jury pool comes from Manhattan, the Bronx, and a few minor counties north of New York City, fertile ground for cranks, revolutionaries, Bush and/or America haters, crypto-Islamists, and what-have-you. Courtroom procedures designed to screen out these outlaws have obviously been proven not to be perfect. And if the jury 'hangs' on the death penalty, there is no do-over, and a life sentence is imposed.”
No doubt the Ground Zero Five will have accomplished and dedicated attorneys. There are scores of trial lawyers itching to step into history as intrepid defenders of due process and the requirements of a proper trial. They will urge dismissal, on grounds that a fair trial is impossible, that the evidence was obtained under torture, that the constitutional requirement of a speedy trial has been flouted, that the shielded identities of the informants providing the prosecution’s evidence similarly flout the defendants’ right to confront their accusers.
They will offer these and scores of other persuasive arguments, and it is impossible to imagine they will prevail. As David Feige, a public defender in the Bronx, presaged in a smart piece on the Slate site, these efforts by the defense team will fail and produce bad law.
“Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM's initial torture from his subsequent ‘clean team’ statements will provide a blueprint for the government, giving them the prize they've been after all this time — a legal way both to torture and to prosecute.”
The liberal-left is appreciative of Holder’s decision too, since it takes prosecution of KSM and his supposed co-conspirators out of the hands of the awful military “commissions.” Anthony Romero, executive director of the American Civil Liberties Union, called the announcement “an enormous victory for the rule of law.” Actually, it was demonstrably a partial victory since that same Friday Holder simultaneously announced that a military commission will try five others, also being held in Guantanamo, including Abd al-Rahim al-Nashiri, who is accused of planning Al Qaeda’s 2000 bombing of the Navy destroyer Cole in Yemen.
Mayor Bloomberg of New York is pleased. In the short term it takes the focus off his embarrassingly close victory in the mayoral race. In the midterm there will be endless opportunities for mayoral announcements ranging from dramatic bulletins on security deployments around the Foley courthouse to compassionate photo ops with the relatives of those killed in the 9/11 attack. And the attitude of these relatives? Mixed, as one might readily imagine.
Delighted too must be Khaled Sheikh Mohammed who has already declared he exults at the prospect of the execution chamber and the martyrdom it will bring, preluded by the platform offered by the trial. But perhaps even more delighted than KSM are the beleagured newspapers of New York to whom Holder’s announcement came like a snort of methamphetamine up the nose of a fading tweaker: ahead lie months of searing headlines, blood-curdling editorial howls for vengeance in the Post and the Daily News, plus graver but copious coverage in the New York Times.
Of course there are those who gravely lament the impending spectacle, the fakery of judicial “impartiality,” the pompous sermons about the rule of law, the hysteria, the howls for vengeance. Bring them on, say I. Let's face it, we could do with some drama and American political life is at its most vivid amid show trials. Their glare discloses the larger political system in all its pretensions and its disfigurements. The show trial is as American as cherry pie , as the former Black Panther H. Rap Brown — currently serving life without the possibility of parole in the Supermax in Florence, Colorado — famously said about violence.