9/11 trials: Conservatives barking up the wrong tree

Metropolitan Correctional Center in New York
Five men, including Kalid Sheik Mohammed, will be brought to the Metropolitan Correctional Center in New York from the U.S. military prison at Guantanamo Bay, Cuba, to face prosecution in federal court.

At the risk of ruffling the feathers of many of my conservative brothers and sisters, I suggest it’s time to call a halt to the stink being raised over the Obama administration’s decision to try Kalid Sheik Mohammed and other 9/11 defendants in federal criminal court, as opposed to military tribunals.

Where else do these miscreants belong but in criminal court, alongside murderers, drug lords, thugs, rapists, pedophiles and swindlers? To suggest they are “combatants,” that their self-styled roles as “soldiers of Allah” somehow imbues them with legitimacy and entitles them to be treated as equals in a military setting, is laughable.

Among conservatives I have spoken with in the months since Attorney General Eric Holder announced the decision to try KSM & Crew in Manhattan federal criminal court, the response has been uniformly furious. And for a long time I went along with it.

During MinnPost interviews, for example, both Katherine Kersten and Rep. Michele Bachmann, both of whom have my respect and both of whom are attorneys, flat out rejected the idea of trials in federal criminal court.

Rep. Michele Bachmann
MinnPost/Raoul Benavides
Rep. Michele Bachmann

Bachmann spoke for many on the right when she argued on National Review Online that the defendants “will be swaddled in the protections of the Bill of Rights and given a soapbox from which to mock their victims and our country. And that will happen only after they are given a year or two to rifle through sensitive government files during the civilian discovery process. In fact, representatives of these ‘defendants’ have already announced that they now plan to plead not guilty so that they can exploit civilian legal procedures to put America on trial.”

It’s a compelling argument — as far as it goes.

Yet the presumption that KSM will turn the trial into a soapbox for his beliefs is little more than conjecture. Likewise the suggestion that the defendants and their lawyers will have a field day rummaging through sensitive government files during the discovery process. Both arguments presume a presiding judge who is both weak and easily manipulated. Don’t bet on it.

Bachmann and others point to the unruly trial of the 1993 Trade Center bombers as evidence that this one will spiral out of control. In fact, the opposite seems to be true. The 2006 trial of 9/11 conspirator Zacarias Moussaoui in Alexandria, Va., federal court was, for its occasions of lowbrow theater, a model of how these things can be handled.

Look, the U.S. system of justice is fairly messy, as it is in most democracies. Yes, there’s always the chance that a terrorism defendant will pull some stunt, or that the defendants’ left-wing lawyers will attempt to subvert the process — one of these worthies, from the ’93 trial, disbarred radical lawyer Lynne Stewart, is now doing time in a federal prison. But that always has been the possibility in trials of this nature.

A case in point is the 1951 trial of atomic spies Julius and Ethel Rosenberg. Despite all the extraneous fireworks and international uproar that accompanied that case (and it was absolutely astonishing, far more egregious than anything we could expect now), the Rosenbergs went to the chair, as well they should. KSM & Crew are charged in the deaths of almost 3,000 innocents, but the Rosenbergs served a master responsible for the deaths of tens of millions of people. Justice was served then; there’s no reason to believe it won’t be served now.

I hold no brief for Holder, finding him an ideologue. His foolish decision to order the Mirandizing of the alleged Christmas Day bomber before a rigorous effort to secure actionable intelligence was mindboggling, a blunder made worse by the pusillanimous efforts to justify it. Former Attorney General Michael Mukasey disposed of that issue rather handily the other day in the Washington Post.

Moreover, Holder’s order to hold the KSM trial in Manhattan was a glaring example of the failure to think things through. Apparently, no one at Justice, or the White House, for that matter, foresaw the potential problems a trial of this magnitude could cause New York City.

I speak with some authority here. I was an editorial writer at the New York Daily News in the 1970s, when the paper’s home was at 42nd Street and Second Avenue (the wonderful building has since been sold and the paper moved across town to the West Side). With all the heads of state in town during General Assembly meetings and other major events at the United Nations, just a block away, it was absolute bedlam.

Motorcades, surging masses of demonstrators, mounted police, thousands of cops, tens of thousands of sightseers and kibbitzers — the entire Midtown area was a madhouse. The ripple effect of the gridlock essentially shut down most of the city.

No wonder Mayor Michael Bloomberg and a legion of New York civic leaders, not to mention a number of Democratic Party heavy hitters, like Sen. Chuck Schumer, insist that the trial be held someplace else.

Holder — and his boss — would be well advised to just say, hey, we made a mistake; we’re going to move the trial. A little humility will reap enormous political capital, and believe me, they need it.

Beyond that, hang tough on criminal court trials for KSM & Crew. Holder is forever bleating that the world needs to see what an exemplary system of justice we have. Yeah, sure. Frankly I could care less what the world thinks. It’s the American people who need to see that the system, at least in this case, works.

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Comments (21)

  1. Submitted by Thomas Swift on 02/16/2010 - 08:19 am.

    I hear what you’re saying, but in order to buy what you’re selling, Michael, one must avert one’s eyes from a stellar fact (which I note, you have)…

    Julius and Ethel Rosenberg were American citizens, KSM is not.

  2. Submitted by James Hamilton on 02/16/2010 - 09:03 am.

    Mr. Bonafield is to be commended for his openness to a change of mind, something that is far too rare on all sides in our current culture wars. Whether to treat terrorists as criminals, enemy soldiers who are acting out of uniform or “enemy combatants” (whatever that may ultimately be determined to mean) is a difficult question. Do we base the decision on the politics of the suspect, his religion, or simply the intent to take as many lives as possible in as public a manner as possible? The mere fact that they are not U.S. citizens does not, in our courts, deprive them of the rights of any other suspect. So, then, what shall the determining factor be? What if they are citizens? All difficult questions, as is where to try those who are placed in our criminal justice system. Yes, a trial in New York may cause bedlam. Yet, where better to bring to justice one of those who may have caused that city such pain?

  3. Submitted by Jerry Gates on 02/16/2010 - 09:09 am.

    I appreciate your thoughts Michael, but I must agree with the prev. comment. I see no reason to extend the rights under the Constitution, guaranteed to U.S.citizens, to foreign nationals that commit, what must be described as “acts of war”. Lets save the country a lot of money & stress & simply put them before a military tribunal.

  4. Submitted by Joe Williams on 02/16/2010 - 09:24 am.

    Thank you for writing this piece. It seems to sweep aside a few of the arguments that paint our justice system as too weak.

    I do however, wonder if the argument you pose is any more compelling than NIMBY? There is no doubt that if the trial is held in the US, the news media, protestors, and lookers-on will descend upon the area and have the same effect you describe.

  5. Submitted by Bill Schletzer on 02/16/2010 - 10:20 am.

    It has been obvious to me for quite a while that right wing zealots like Bachmann, Kersten and even Pawlenty hate the American form of government and would be most comfortable in a military or religious totalitarian system. Witness Bachmann calling respect for the Bill of Rights as “swaddling”. Witness Pawlenty’s unallotments. To allow him total and final power over budgets is to make him king with a powerless rubber stamp legislature. To argue that trying someone in court gives them a soap box so we muzzle them and hide the trial behind a military tribunal is a dangerous road to take. All three of those people use lies and distortions to undermine legitimate debate over real problems because to them gaining power for the right wing is more important than democracy. They wave the patriotism banner but it is phony.

  6. Submitted by Jeremy Powers on 02/16/2010 - 11:00 am.

    As a country, we over-reacted to the crime of 9/11 by “declaring war on terror,” etc. It was a crime. A terrible, politically motivated one, but a common crime nonetheless. No country attacked us. Not even a religion. Just a few hundred nutjobs. But we made it a war. We made Al Qaeda famous. We were their number one recruiting effort. We made them what they are today. If we would have more or less ignored them, they would have disappeared.

  7. Submitted by Tim Walker on 02/16/2010 - 11:35 am.

    You write: “Yes, there’s always the chance that a terrorism defendant will pull some stunt, or that the defendants’ left-wing lawyers will attempt to subvert the process …”

    Is there any particular reason why you suppose that the lawyers who might represent KSM will be left-wing types? Or that they will purposefully and publicly violate their code of legal ethics to “subvert the process”?

    Or do you only make this assumption because of your ingrained right-wing belief that left-wingers are terrorism sympathizers? Because I’m getting quite tired of that McCarthyist crap, you know?

    Do you also assume that a lawyer who defends an alleged rapist is pro-rape? Do you assume that a lawyer who defends an accused bank robber is an anti-capitalist shill who thinks banks deserve to get robbed?

    Or is it just that you cannot grasp the fact that it’s possible that all lawyers, regardless of political persuasion, just believe that the world is a better place if those accused of crimes, any type of crime, deserve legal representation?

    The name calling is quite unbecoming, Michael. Quite unbecoming.

  8. Submitted by Fritz Dahmus on 02/16/2010 - 11:43 am.


    You are ok with trials in a civilian court for KSM and crew…..but just not in your precious New York City. That’s the worst case of NIMBY I have ever seen!

    The reasons given lately for military tribunals over crimminal court for defendants such as KSM and crew are a). concerns about security b). the need to break a lot of laws regarding intelligence gathering (wouldn’t hold up in any court…maybe not even military tribunal) c). hold the defendants with or without charges filed….just to keep them off the “battlefield”.

    Most of these terrorist-types want to plead guilty anyway. Giving them a fair trial is not the main objective here. The main objectives are securing valuable intelligence and keeping them off the “battlefield”….with or without charges.

  9. Submitted by Karl Bremer on 02/16/2010 - 11:59 am.

    So tell us again how this is any different than how Bush tried terrorists?


  10. Submitted by Bill Schletzer on 02/16/2010 - 12:05 pm.

    I thought this might be a nice place to communicate with all my liberal elite cohorts. MSNBC has a nice long article today about the loose confederation of right wing groups including the John Birch Society, the Tea Parties, the militias and other right wing conspiracy nut jobs and how they are preparing for the revolution and fighting the liberal elite totalitarian regime. It is a good but scary read.

  11. Submitted by Brian Simon on 02/16/2010 - 12:27 pm.

    The conservative school of thought, as expressed by Bachmann & Kersten, seems to be: the Cheney way is the only way. What gets lost in that belief, from what I can tell, is any sense that we are different from those who we’re fighting. What makes us better than the religious ideologues, if not our respect for the rule of law, for the sanctity of life & human dignity?

    We demean ourselves, and give up that which sets us apart, when we claim that our rules only apply to us.

  12. Submitted by myles spicer on 02/16/2010 - 12:30 pm.

    Sure, the right would love to get rid of all the Constituitional “niceties” that have kept us a free, open, and civil society for over 200 years. But once that Constitution is shredded, it likely could never be pieced back together again — thus depriving them (and the rest of us as well) the freedom to freely speak out, just as they are doing now.

  13. Submitted by Hénock Gugsa on 02/16/2010 - 12:54 pm.

    It is refreshing to read a reasoned, and seasoned writing from someone on the right now and then.

    Mr. Bonafield rates high grades in both reason and overall knowledge of the subject matter.

    On the question of rights and the law, it is quite simple really. All United States laws emanate from and are based on the Constitution. And it guarantees the same rights to all people within the United States. The Constitution was not written for citizens only. It was not written for whites only. It was not written for Christians only, and it was not written for Episcopalians only. [So there you get my drift, I’m sure.]

    On the question of whether trials should be held in civil courts or military tribunals … the criterion to determine war criminals is (should be) whether there is a state of war between two or more equal bodies. Single individuals can be tried in military tribunals as war criminals only if they represent(ed) or serve(ed) a nation that is(was) at war with us (the United States). If such individuals represent(ed) groups or bodies that are not internationally recognized, then legal recourse should fall to civilian domain. KSM and his friends are terrorist civilians … they do not represent Islam and they do not represent any nation or country. Saying otherwise would only legitimize them more.

    Final point – why are critics on the right so conflicted about the Constitution? Why can’t they have more faith in it? Or do they want to be activists and revamp it altogether as it does not serve their purpose.

  14. Submitted by John Branstad on 02/16/2010 - 01:16 pm.

    Kudos to Mr. Bonafield for being a voice of reason on his side of the aisle (NIMBY-ism and subtle McCarthy-ism notwithstanding), and standing up to the right-wing echo chamber of empty rhetoric and fear-mongering. As evidenced here in these comments, folks on his side of the aisle are more than happy to eat their own, should anyone display the courage to disagree with the groupthink.

    To paraphrase Ms. Bachmann, maybe we need to take a look at who is pro-America and who is anti-America when it comes to our judicial system. I’m glad to see Mr. Bonafield land on the side of pro-America.

  15. Submitted by Bernice Vetsch on 02/16/2010 - 02:11 pm.

    Bill S (#10) — See also Sara Robinson’s August 7 article, “Is the US on the Brink of Fascism?” (www.truthout.org/080909A), in which she looks at America from the perspective of historian William O. Paxton’s history of the development of various countries in the 20th Century.

    We are in or close to Stage 3 of 5, by which time a conservative elite adopts the vocabulary of the angry, resentful and hurting folks who form a mass that includes people like abortion doctor killers and the Unibomber and Timothy McVeigh. Their use of this vocabulary inflames both those who just get more vocal AND those who, like McVeigh, are capable of violence.

    The conservative elite? Bachmann, Palin, quite a few senators and representatives, Beck, Limbaugh, and more.

    Re: Civil trials. It would make as much sense to try drug dealers in a military court because of our worldwide War on Drugs as it would to try suspected terrorists. We are also bound by the Geneva Conventions that apply to all countries.

  16. Submitted by Glenn Mesaros on 02/16/2010 - 02:53 pm.

    Nazi Saboteurs on Trial, by Louis Fischer, 2003.
    “Less than a week after the last of the German saboteurs was arrested in 1942, President Franklin Roosevelt issued a proclamation creating a military tribunal to prosecute the Germans. Besides being Roosevelt’s preference, the military court was seen as the best option, because it would prevent immediate notification to the public that German submarines had reached

    American shores undetected and because it could recommend the death penalty for the perpetrators. The proclamation forbid the Germans access to civil courts, directed the Attorney General to handle the prosecution, and permitted a two‑thirds vote for conviction and sentencing, all of which were inconsistent with existing judicial procedure. Although defense lawyers petitioned for review of the constitutionality of President Roosevelt’s proclamation, the request was rejected by a federal district court. After nineteen days of hearings and two days of deliberation, the tribunal recommended death for all eight Germans. Less than a week later, six of eight were electrocuted in Washington, DC.”

  17. Submitted by jim hughes on 02/16/2010 - 04:28 pm.

    “Frankly I could care less what the world thinks.”

    That’s a a strange statement, and reveals some of the roots of so-called “conservative” thought.

    At some level, we do have to care what our neighbors think, at least about some things, or we won’t have a very nice neighborhood. That’s true for the block you live on, and true for the world.

  18. Submitted by Wally Carr on 02/16/2010 - 06:08 pm.

    Mr Bonafield,

    You almost sounded reasonable for a second there. Then your hatred of the left took over. “Left wing lawyers”, indeed.

    You, sir, are a liar. A smooth one, perhaps, and once in a while, polite. But a liar nonetheless.

  19. Submitted by Wes Davey on 02/17/2010 - 12:32 am.

    I haven’t read how a military tribunal would be conducted, but if it’s similar to a military court martial the defendants would have virtually the same rights as if tried in a civilian criminal court – including being given a Miranda type warning (see “Manual For Courts-Martial (2008) page 11-35).

    The author (Mr. Bonafield) should have specified what rights defendants would have in a military tribunal (as opposed to a court martial) before making this statement in the article: “His foolish decision to order the Mirandizing of the alleged Christmas Day bomber before a rigorous effort to secure actionable intelligence was mindboggling, a blunder made worse by the pusillanimous efforts to justify it.”

  20. Submitted by Dan Landherr on 02/17/2010 - 11:33 am.

    It is ludicrous not to give Miranda rights to someone you intend to try in the courts. Would they rather have the person freed on a technicality?

  21. Submitted by Bernice Vetsch on 02/17/2010 - 10:27 pm.

    Wes D (#19). Military trials at GITMO, and perhaps elsewhere during the War on Terror, left defendants and their attorneys pretty much helpless. They couldn’t review evidence against them because it was “classified” and other such practices that pretty much guaranteed a guilty verdict from the tribunal.

    From the Universal Declaration of Human Rights:

    Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

    Article 6: Everyone has the right to recognition everywhere as a person before the law.

    Article 9: No one shall be subjected to arbitrary arrest, detention or exile.

    Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

    Article 11: (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

    (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty e imposed than the one that was applicable at the time the penal offence was committed.

    The U.S. is a signatory to this declaration, but unfortunately has violated the above provisions over and over when it comes to those who “hate our freedoms,” whether they have actually committed acts of terror or have merely defended their own countries against our invasion or occupation.

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