John Cornyn, Are the 9/11 Suspects Holy Warriors

trialsThe Obama administration’s decision to try Khalid Sheikh Mohammed, the self-described mastermind behind the 9/11 terrorist attacks, and four alleged co-conspirators in civilian court is a laudable return to the rule of law from the Bush administration’s kangaroo military commissions, which convened offshore in Guantanamo to avoid giving defendants full legal rights under domestic or international law. But it is not enough.

Conservative commentators harshly criticized the move as either giving the heinous terrorists a break or, in the words of Sen. John Cornyn (R-Texas), treating the 9/11 attackers as “common criminals.” Even liberals on the MSNBC television network couldn’t seem to grasp the greatest significance of Obama’s move, saying that it would restore U.S. prestige around the world.

Sen. Cornyn’s comments indicate that conservatives, in their haste to conduct their own crusade against a non-Christian religion, would rather buy into the terrorists’ warped conception of themselves as holy warriors than treat them for what they are: dastardly common murderers. The liberals would rather have other countries like the United States than focus on the restoration of constitutional safeguards.

The Fifth Amendment to the Constitution says that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. . . .” The Sixth Amendment ensures the defendant, for all criminal prosecutions, a public jury trial in the state or district in which the crime was committed, which includes getting a list of specific accusations, being confronted with hostile witnesses and compelling favorable witnesses, and having the right to a defense counsel.

The exception for the Fifth Amendment includes an alternative justice system only for U.S. military personnel during wartime, not “unlawful enemy combatants.” Thus, despite earlier precedents in U.S. history, including during World War II, military tribunals for enemies are unconstitutional, especially when they violate many of the requirements of the Sixth Amendment.

Thus, the main benefit of Obama’s move is partially restoring a constitutional justice system after years of Bush administration abuse. Yet at least five other Guantanamo prisoners, and likely many more, will be denied a civilian trial. These five are being held for an attack on the USS Cole, an American warship, in 2000. Ostensibly, hitting a military target means a trial in a military tribunal. Although Obama has improved safeguards in such tribunals, the reality that some terrorists get better justice than others—evidently the more people you kill, the more justice you get—smacks of prosecution forum-shopping in order to get convictions.

Administration officials even admit that the vast majority of Guantanamo prisoners will continue to be held indefinitely without any kind of trial. Even more horrible, acknowledged innocent people will be held until a foreign country accepts them, because U.S. administrations have been politically scared to admit they terribly wronged these people and release them into the United States.

ivan-eland.jpgUndermining even the civilian trials is the unlikelihood that any of the 9/11 defendants would be released even if acquitted. U.S. Attorney General Eric Holder declined to say whether this was possible. In any normal trial, it is a given. Holding a high-profile prisoner even after he is exonerated could subvert the perceived fairness of the U.S. justice system even further. Autocracies hold show trials; a republic does not.

But if these defendants are treated as any other similarly accused murderers, bringing them to justice in a civilian court is one step out of the abyss.

Ivan Eland

This article first appeared in The Independent Institute and is republished with permission.

LA Progressive

Published by the LA Progressive on November 19, 2009
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About Ivan Eland

Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and a Ph.D. in Public Policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He also has served as Evaluator-in-Charge (national security and intelligence) for the U.S. General Accounting Office (now the Government Accountability Office), and has testified on the military and financial aspects of NATO expansion before the Senate Foreign Relations Committee, on CIA oversight before the House Government Reform Committee, and on the creation of the Department of Homeland Security before the Senate Judiciary Committee. Dr. Eland is the author of The Empire Has No Clothes: U.S. Foreign Policy Exposed and Putting “Defense” Back into U.S. Defense Policy, as well as The Efficacy of Economic Sanctions as a Foreign Policy Tool. He is a contributor to numerous volumes and the author of 45 in-depth studies on national security issues.

His articles have appeared in American Prospect, Arms Control Today, Bulletin of the Atomic Scientists, Emory Law Journal, The Independent Review, Issues in Science and Technology (National Academy of Sciences), Mediterranean Quarterly, Middle East and International Review, Middle East Policy, Nexus, Chronicle of Higher Education, American Conservative, International Journal of World Peace, and Northwestern Journal of International Affairs. Dr. Eland's popular writings have appeared in such publications as the Los Angeles Times, San Francisco Chronicle, USA Today, Houston Chronicle, Dallas Morning News, New York Times, Chicago Sun-Times, San Diego Union-Tribune, Miami Herald, St. Louis Post-Dispatch, Newsday, Sacramento Bee, Orange County Register, Washington Times, Providence Journal, The Hill, and Defense News. He has appeared on ABC's “World News Tonight,” NPR's “Talk of the Nation,” PBS, Fox News Channel, CNBC, Bloomberg TV, CNN, CNN “Crossfire,” CNN-fn, C-SPAN, MSNBC, Canadian Broadcasting Corp. (CBC), Canadian TV (CTV), Radio Free Europe, Voice of America, BBC, and other local, national, and international TV and radio programs.