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The Obama administrations decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in federal court, as opposed to a military tribunal, has ignited a firestorm of controversy, though it is hard to imagine why. After all, should the forum for his conviction matter where, as has been so frequently stated, the outcome of such a trial would hardly seem in doubt. We could hardly imagine KSM missing an opportunity to take credit for the attacks, given his past performances. Moreover, would it really matter where the evidence against him is said to measure in mountains rather than molehills?
No, the controversy seems to be about something different, something deeper less focused on the certainty of a conviction and more deeply rooted in the emotional, nearly visceral, seemingly instinctive repulsion at the idea that a person singularly intent on destroying this nation, its people and its democratic institutions should be afforded the very protections that are the target of his vicious attacks and the object of his contempt. Simply put, is a mass murderer at war with this nation entitled to the constitutional rights of the citizens he has committed every fiber of his being to destroying? Can we not draw a line beyond which a person forfeits the protection of a Constitution that he would as casually trample asunder as the soil under his feet?
This conflict is honest and heartfelt, and yet it misses the point. This nation should try KSM and the other accused 9/11 terrorists in federal court not only because of what they are accused of having done but in spite of those charges.
As a presidential adviser on anti-terrorism once said, Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are criminals and to use democracys most potent tool, the rule of law against them.That anti-terrorism expert was not an adviser to Barack Obama, but rather to Ronald Reagan. President Reagan presided at a time when one of the greatest threats to this nations security was not a fight against terrorists but a global struggle between East and West, a protracted battle of nations and proxies that was rapidly approaching a moment of cataclysmic change not imagined during a period of decades simply referred to as the Cold War era.
Though the threats against this nation then are seemingly as different as night and day when compared to those faced today, the threats share a common target the essence of what lies at the core of this nations identity a system of justice grounded in the idea that individual rights transcend the transient interests of its leaders. We, unashamed, unreservedly, are a free people governed by consent.
And so, we return to the question, why extend these rights to our sworn enemies, those who would pose the greatest threat to this nation and its people? Why try these accused terrorists in federal court?
The answer, simply stated, is that we must try them in a court bound by our laws, according to our laws, because anything else is something less. A substitute for a court of law is not a lesser court but a lawless institution. It is, as former Supreme Court Justice Robert Jackson, then chief prosecutor at the Nuremberg trials, warned, a court created to convict as to which there can be no respect as to the outcome.
Sen. Lindsey Graham (R-S.C.) recently said of the battle against terrorists, This is an ideological struggle were in. Image matters. Yet, less than two weeks before, Sen. Graham introduced legislation that would prevent the 9/11 suspects our enemies in this battle from being tried in federal courts, courts that we hold out to the rest of the world as the most capable, fair and independent.
Yes, Sen. Graham, image does matter. And the image created by an unwillingness to try these accused terrorists in our courts of law is the image of a nations leaders that lack confidence in the courts in which every one of us would not only expect but demand to be tried, no matter what the offense.
If KSM is convicted, he will join the ranks of the roughly 200 other terrorism suspects convicted in federal criminal courts since Sept. 11 as much as he will join the ranks of countless others before him convicted of crimes against this nation and its people. American juries and judges have answered the call to deliver justice time and again. Indeed, if the controversy were merely rooted in anxiety about the ultimate disposition of KSMs case, Americans would have more to fear from entrusting the trial to untested military tribunals that have managed to convict only three terrorists since 9/11.
The decision to try alleged terrorists in federal court should not be considered controversial. After all, it is nothing more than an affirmation that our courts remain an enduring and essential part of safeguarding this nation and its values. What should concern us more is the notion that our government could, in a moment of expedience, simply create a new instrument by which to deprive any person of fundamental, individual and inalienable rights.
Our laws triumph, our values triumph and our nation, pitted in a great ideological struggle, triumphs when we extend our laws to our enemies as we would ourselves. Trying KSM or any other accused terrorist according to the very laws that we would have apply to ourselves is not a sign of weakness nor an indulgence to our enemies but an affirmation of the confidence we have in the institutions by which we are governed.
Retired Army Lt. Col. Stephen Abraham, formerly assigned to the Office for the Administrative Review of the Detention of Enemy Combatants, was the first officer to publicly criticize the Combatant Status Review Tribunals at Guantánamo. He has joined Beyond Guantanamo: A Bipartisan Declaration, advocating for the use of federal courts to try suspected terrorists.