United States on Trial?

Will KSM Appear

As a Brave Rebel

Fighting Goliath?

By Henry J. Stern
November 23, 2009

On Friday, we were undecided as to where the trial of the century (the 21st, that is, should take place). We saw the case for both a civilian judge and jury and a military tribunal. Over the weekend, we began to tilt toward the military, with the added safeguards which were adopted by Congress in the Military Commissions Act of 2009. One such change is that evidence gained through torture or coercion will not be admissible, another limits the use of hearsay, and a third sets up new procedures for handling classified information.

Criminal defendants in civilian courts enjoy a broad range of protections. They are designed to protect people from false accusations and insure a fair trial. If some guilty defendants go free, that is regarded as part of the price for the freedoms we all enjoy. Whether those protections should apply to people who intended to kill as many people as possible in what they believe to be the fulfillment of their religious duty is another matter.

A society which is incapable of defending itself will ultimately crumble. No rational government would fail to punish people who murder its citizens without cause, least of all as a matter of religious delusion. Americans were the victims on 9/11, as were the British and Spanish civilians murdered by al-Qaeda, whose bombers attacked trains and subways in London and Madrid. We must pursue and prosecute the perpetrators of these atrocities, without necessarily following the Mossad protocol which followed the 1972 murder of eleven Israeli athletes at the Munich Olympics.

When eight German spies landed on Long Island and Florida beaches in June 1942, they were captured and tried by a military commission. One got 30 years, one life imprisonment, and six were electrocuted at the District of Columbia jail. In 1948, President Truman granted executive clemency to the two survivors, on condition of their deportation to Germany.

On September 22, 1775, in Manhattan, Nathan Hale was hanged by the British while seeking information on behalf of George Washington. He had been captured the evening before. Sir William Howe, the British commander, ordered his execution the next morning. Hale may have been betrayed by his cousin, Samuel Hale, who was a Tory. There is no evidence to support that rumor, which has lingered for centuries. Nathan is best remembered for his alleged last words, 'I only regret that I have but one life to lose (or give, who knows?) for my country.' A handsome, larger than life statue of Hale stands in City Hall Park, although one must go through security to get close to it.

Nathan Hale never killed anyone; and the eight Germans never had a chance to. Major Nidal Malik Hasan killed 13 people at Fort Hood, Texas, pursuant to what he believed were the demands of his faith. Our politically correct army and FBI share the blame for not anticipating that tragedy, just as they freed Lee Harvey Oswald to kill JFK in 1963. Not intentionally, of course – just a question of judgment. KSM says he was the mastermind of an assault on civilians that left 3000 dead.

We believe that, as the trial wears on in Foley Square, people around the world will come to see the Gitmo Five, or whatever tabloid nickname will be found for them, as revolutionary heroes, just as Che Guevara, who was more ruthless than Fidel Castro, is now thought of as a young motorcyclist and role model for progressive youth who wear T-shirts emblazoned with his likeness. In general, in trials, the defendant becomes the protagonist, rather than the prosecutor. We name famous trials for the defendants: OJ Simpson, Leopold and Loeb, going back in history we have Galileo and Joan of Arc. The monkey trial in Tennessee is the exception, Clarence Darrow and William Jennings Bryan being more famous than John T. Scopes, the schoolteacher whose name sounds like he answers questions on the Internet.

So here we are setting the world stage for America to be put on trial for its alleged sins. And if KSM and his aides are executed, we will have created five celebrated martyrs whose names will someday adorn stamps and coins. The absurdity here is that we are stupid enough to do it to ourselves. We want to show the world how great the American system of justice is. People who already like us may believe that, but few others will be convinced by the spectacle that may well occur.

And if the judge is a ninny like Lance Ito in the OJ case or the clown in the Anna Nicole Smith case? And if some weird juror creates a hung jury? Would you allow Muslims on the jury, or would you exclude them for the risk of bias? If you exclude them, how can you justify that to appellate judges?

The situation is replete with possibilities for error or absurdity. What about the President’s public statement that the defendants should be executed? Although he retracted it, he said it, and will not be allowed to forget it. Even though the presumption of innocence is in some part a legal fiction, it is not one to be disregarded by the chief executive.

We hope that we can escape from this potential disaster. On top of being bombed, and being unable to find Osama Bin Laden for eight years, we now run the risk of appearing even more foolish by treating a war criminal as an American citizen, with all the rights and privileges that accrue to defendants in the courts of the United States.

Four questions occur to us:

1) Did Khalid Sheik Mohammed receive his Miranda warning before, after or during the period in which he was waterboarded 183 times, and was that a record for immersion?

2) What effect did the failure to provide counsel and the prolonged torture have on the fairness and legitimacy of the proceedings?

3) What will the world at large, particularly the Muslim world, believe when they receive full disclosure of all that transpired during KSM’s six years in custody?

4) Will holding the trial in a civilian court in New York City be in the best interests of the United States?

To illustrate our apprehension over the possible difficulties in the course the President appears to have chosen, we turn to American popular culture, citing the script and stage directions at the close of the film, The Terminator (1984), which starred Arnold Schwarzenegger and Linda Hamilton:

She pays him (for the gasoline she has just purchased), distant thunder rolls. The boy (who sold her a picture) yells something in Spanish as he runs off.
.
Sarah: 'What did he say?'
.
Attendant: 'There is a storm coming in.'

Sarah gazes at the thunderheads building up out over the desert. Heat lightning pulses in their depths.

Sarah: 'I know.'

Camera cranes up as she pulls away, driving across the flat desert on a ribbon of highway.

A brilliant flash crescendos from horizon to horizon, out at the rim of the world.

As a demonstration of the new technology, you can link here to a video, including the scene described above.

Where Western civilization is concerned, we face an all too real existential threat, close to the acquisition of nuclear weapons. Khalid Sheik Mohammed is a spear carrier for forces that would destroy us. Our awareness of danger trails the seriousness of the problem before us.

StarQuest #622 11.23.2009 1238wds