Monday, November 16, 2009

More Thoughts on Terrorism

I had a number of other thoughts this weekend related to Nidal Malik Hasan and the upcoming trial of 9-11 mastermind Khalid Sheik Mohammed, which, according to announcements last week, will take place in Manhattan Federal District Court.

I laid out my opinion on Hasan last week, that while he may have engaged in acts of terrorism, the terrorist label is not particularly useful. In regards to Mohammed, many folks on the right are upset that the trial is taking place in a civilian court, while reaction on the left has been mixed. Personally, I've found Glenn Greenwald's take to be useful, as he points out that any enthusiasm for civilian trials must be tempered by harsh, cold, political reality. Ultimately, what the Obama administration has chosen to do is pursue in civilian court only those cases which it thinks it can win. I've got a real problem with this and anyone with respect for the rule of law ought to have a problem with this. I won't claim to have the be-all, end-all answer on the mechanisms for judging the guilt of terrorists, but I do know that what I said over five years ago still holds true. While a makeshift system may have been appropriate in the wake of 9-11, we, as a civilized society, need to have specific procedures laid out for dealing with terror suspects. We didn't get it under Bush and we're still not getting it under Obama.

I bring this up in relation to Hasan because, as I've written before, that terrorist label has lots of baggage. On Red Eye last week, I heard Republican Congressmen Thaddeus McCotter make the point that we need to treat Islamic terrorists differently (and not try them in civilian courts) because they are not criminals out for profit, but engaged in an ideological war against us. It's a weak argument when one thinks back to Timothy McVeigh, who was tried in civilian court and executed for the Oklahoma City bombing.

Again, this is not to say that Khalid Sheik Mohammed should be tried in civilian court. I'm torn on that question, but the answer is ultimately not as important as the need to have a system laid out ahead of time, with clear rules regarding who is funneled into what system of justice and why. I haven't ever heard this point being made specifically, but the general thrust of the argument on the right seems to be that Islamic terrorism should be pigeonholed into it's own category and this is troublesome, sort of like hate crimes legislation to the extreme. It's problematic, plain and simple, to have a different system of justice based solely on religious and political beliefs.

And the other problem here goes right back to Hasan and whether or not he is a terrorist. I don't see any way how someone like Hasan, acting alone, could ever be logically funneled into a special system of justice. Other than political and religious belief, there's just no way to separate Hasan from Timothy McVeigh's, the Unabomber, or even the Coulmbine shooters. In the end, we're just talking about language, but the larger point is that language should correspond to specific legal consequences.


Anonymous rose said...

I'm clueless when it comes to legal issues. But isn't consistency in the application of law even more important than what a particular law is itself? I'm referring to the Obama admin's decision to try only particular cases in civilian court, which I noticed last week.

I heard Eric Holder say something like, "I've seen the evidence and I'm certain we'll convict KSM".

So we're running show trials now basically? How is it in any way better to handpick on the fly which courts to try terrorists in?

If they've decided that military commissions are illegal, or immoral, yet they continue to use them on certain suspects, while using civilian courts when Eric Holder feels the evidence is sufficient, haven't we created a process that is indisputably even less legitimate than what we were doing before?

The way I see it, neither Bush nor Obama care much for the rule of law. But Bush did what he thought was morally right (if not legally right), whereas I see Obama doing what is politically useful (create nice appearances), which can't be defended on moral or even legal grounds.

3:54 PM  
Anonymous rose said...

And again, I'm probably a libertarian on just about every issue except civil liberties/national security type stuff. I support everything from enhanced interrogation to warrantless wiretapping.

But Obama is the elected President and he has every right and obligation to change our course on these issues. But this non-sense where you hammer the predecessor, talk about changing things and then re-package the same policies with a slight twist is pathetic.

4:02 PM  
Blogger lonely libertarian said...

You're exactly right when you say consistency in the application of the law is more important than the law itself. Obviously that's a broad statement, but in the context here what that means is that the fair and consistent application of an impartial process is more important than what that process actually is (obviously, so long as that whatever the process is it somehow fits our traditional notions of justice and fairness). And consistency is exactly what we're not getting with Obama. If people thought Bush was bad for his assertions of executive power, this is far, far worse.

Personally, I gave Bush a pass early on because 9-11 happened so suddenly and we basically didn't have the legal structure for dealing with terrorism. That sort of making it up as you go along became less acceptable toward the later years of the Bush administration and is completely unacceptable that ran on the repudiation of Bush policies.

5:04 PM  

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