Mouthpiece

It's been nearly a week since the Obama administration announced that they plan to bring Khalid Sheikh Mohammed (KSM) to the United States to try him in federal court. So we've had time for conservatives to weigh in. I'm actually surprised that we haven't had even more vitriolic freakouts from Republicans, but maybe they're coming and I speak too soon. As much as I think and write about politics now, I still often feel like a naif, because I was completely ignorant of American politics until 9 years ago. I moved to the United States in 2000. Before that, things like the Contract for America and the Lewinsky scandal were not in my consciousness. Also, I was a teenager.

So I still find myself perplexed at things Republicans do. Right now, I'm befuddled by their stubborn opposition to civilian trials for terrorists. I can't determine whether their opposition is mere allegiance to the line the Bush administration towed, or borne from conservative first principles.

Coherent or not, borne of stubborn loyalty or not, their arguments are here, and they will resonate with the people who trust them and vote for them. So it's important to identify where they're coming from, what they're saying, and how we can dismantle their arguments.

1. It will be a "circus."

Michael Gerson made this point in a Washington Post op-ed yesterday, where he said that Eric Holder "is asking them to make the case against five Sept. 11 conspirators, in a circus atmosphere." A quick google search for "KSM circus trial" will give you dozens of other examples.

What does this mean? I can only determine that it means the trial will be highly publicized. That it will be covered by every major press organization, analyzed in great detail. That the courtroom will be packed. That it will be a huge story.

Why is this bad? As far as I can tell, heavy press coverage of a criminal trial only presents one serious drawback: media accounts can influence jurors. But this isn't a novel problem. It is because of this drawback that sequestration exists. (Sequestration: jurors are isolated from the public and from all media during a trial, to prevent influence).

Perhaps the drawback is that wall-to-wall coverage of a criminal trial annoys the public. But that doesn't present any real barrier to the integrity of the process, and is hardly a reason to have the trial outside the United States.

Neither of those are sufficient to explain the conservatives' complaint that the trial will be a circus. I suspect that the real reason is fear of accountability: the more attention a trial gets, the more the actors involved will be concerned about their public image. They'll be more afraid to misstep, to say something inflammatory, to be overly harsh or insufficiently outraged. But by objecting to a trial's venue on account of excessive public scrutiny, conservatives are essentially saying that they think it's better if trials happen in secret. If no one's there watching, no one's there to object but the lawyers.

Bottom line: trials are better if they're held in secret, apparently.

2. KSM and others will use the trial as a venue to express their views.

Rep. Pete Hoekstra said that the suspects are "going to do everything they can to disrupt it and make it a circus and allow them to use it as a platform to push their ideology." There's that "circus" word again. But I want to focus on the possibility of their using the trial as a "platform to push their ideology."

What would that look like? I don't that Hoekstra or other who have said the same thing (notably, Sarah Palin and Rudy Giuliani) really know. First of all, it's likely that after an indictment is handed down, KSM will plead guilty. He expressed his desire to plead guilty back in December 2008. Many commentators think that's the main reason the Obama administration has decided to prosecute him in a civilian trial, because their victory is assured. But let's say there is a trial, rather than a guilty plea. The only chance KSM would have to speak would be if he testified in his own defense. And what is he going to say that's so potentially damaging that it's worth having the trial outside the United States? It's all stuff we already know. He hates America. He thinks we're a vile evil country and is bent on our destruction.

So what?

You can find similar and worse rhetoric on hundreds of websites, and at rallies hosted by Fred Phelps. You can find it on Osama Bin Laden's videotapes. White supremacists want to destroy at least part of America. And Ted Kaczynski's books have sure sold a lot of copies.

Do conservatives think that KSM's bogus rhetoric and message of America-destruction is going to be even close to compelling enough that it will be anything but laughable? KSM and his cronies are pathetic lunatics, and any passionate rantings they are permitted to do on the public stage will only serve to confirm that fact.

One thing I haven't seen anyone bring up is the trial of the Chicago Seven. That is, as far I can tell, the most famous (and perhaps only) major example of individuals using a trial to advance their political platform.

For those of you who aren't familiar with the trial, it was after the 1968 Democratic Convention. Seven individuals were tried for allegedly carrying out a conspiracy to cause havoc and violence in the streets. The defendants not only challenged the charges against them, but by their actions and words they challenged the legitimacy of the justice system and, by extension, the entire government. One defendant wanted to represent himself, and the judge insisted that he would not allow it. That defendant wouldn't stop objecting, so the judge had him literally bound and gagged, sitting in the courtroom. For some more detail on the trial, you can read, for example, this account. I won't recount it all here, because that's not what this post is about. But I think it's important to identify two major differences between the Chicago Seven trial and the forthcoming KSM trial:

1. The defense lawyers were cooperative with their trial-as-theatre scheme.
2. The defendants were right.

The trial was bogus. The charges against them were extremely thin. The judge made numerous decisions during the trial and during sentencing that were later overturned by the Supreme Court. I don't think there are many conservatives who would defend Judge Julius Hoffman today.

Neither of those conditions will be present in the KSM trial. I'm sure that whoever represents KSM will be very cognizant to not allow or encourage the trial and his client to get out of hand. This is, in part because of the public scrutiny that conservatives are complaining about, but also because they just don't make lawyers like Leonard Weinglass any more.

3. We already know he's guilty.

Surprised? I'm not. Michael Gerson says:

There is one serious argument for this course: that a civilian court will provide greater legitimacy for the imposition of the death penalty than a military tribunal. But the guilt of these terrorists is not in question. And it is difficult to imagine that those repulsed or impressed by Khalid Sheik Mohammed's confessed crimes will care much about the procedures surrounding his sentencing.

I like this argument better than all the others I've been hearing from conservatives. At least it's honest. Gerson actually comes out and says that KSM's trial doesn't need legitimacy, because he's guilty. He really seems not to understand the whole point of trials, which is to determine whether someone's guilty. But if we already know he's guilty, and we think the trial is going to result in a guilty verdict, what's the problem? Government expense? Fortunately for many defendants out there, expense is not a justification for dispensing of their constitutional rights, or they'd really be screwed.

Here we come up against the fundamental contradiction in conservatives' argument against a civilian trial for KSM: they want to say both that a guilty verdict is assured, so the trial is pointless, but also that giving him a trial in civilian courts provide constitutional assurances that might allow him to go free.

It's bizarre to see them arguing fervently that KSM should have a military commission instead of a civilian trial, on grounds that the constitution shouldn't apply to him. Because the government has been arguing since the inception of the military commissions that the commission system provides adequate constitutional safeguards. The Supreme Court explicitly ruled that the military commissions had to be an adequate substitute for regular civilian trial to pass muster.

4. KSM's presence in New York will actually pose a danger.

Rep. Gohmert says that ""You've got subways, tunnels, bridges all subject to terrorism... Unless they're trying to create a new jobs bill by allowing terrorism back in New York then this is insane." As far as I can tell, this is the most ridiculous argument of all. Is there some small chance that having these men in New York will pose some additional danger of terrorist activity that is not actually present? Sure. Is it any more than the threat that's raised by high-profile events that take place every day? Every time you ahve a rally, or a speech, or a public gathering, or you build a tall building or a bridge, there's some risk attached. But you still do it anyway, because it needs to be done.