The Green Papers
The Green Papers

On the Obama Administration's changing course
re: the judicial venue for the 9/11 Terror Trials

by Richard E. Berg-Andersson Staff
Fri 19 Mar 2010

I have already touched upon the most basic premises with which this whole issue is involved in an earlier Commentary of mine dated 16 November 2009, so I'll try my best not to much "beat the dead horse" here. The constitutional language is clear enough, requiring (as quoted at the very head of my previous Commentary on this issue)- "[i]n all criminal prosecutions... a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed" [U.S. CONSTITUTION: 6th Amendment] (and what part of said language does the Obama Administration- and, even moreso, its critics as regards this particular issue- not understand?)

The Obama Administration has- since Attorney General Holder first announced just such a trial to be held in the Federal District in which is contained the scene of the attacks on New York City's World Trade Center of 11 September 2001- been long ruminating on scrapping civilian trials for those charged with aiding and abetting, where not also masterminding, those attacks altogether in favor of using military tribunals...

big mistake!... one which, at the very least, might even teeter on-- well-- to here borrow the phraseology of the late Charlie O. Finley, one time owner of Baseball's Oakland Athletics, when he had been asked to describe the goings-on at a Major League Baseball owners' meeting: "if we had half more brains, we'd all still be idiots!"

I have purposely used a quote in which the speaker acknowledged himself as, perhaps, one of those "idiots" because there are many a Democrat- along with many, many Republicans- who, for some reason, think that scrapping civilian trials for 9/11 terrorist suspects is actually a good idea. But I will immediately retort, to start with, by repeating the very core of that which I had written now four months ago:

[T]he message that the United States of America should be sending, both here at home as well as abroad, is that we will fearlessly continue to prosecute crime and institute appropriate punishment through that Due Process which normally applies: a legal procedure- with all its checks and balances, with all its protections for those facing trial (no matter how despicable the criminal defendant), that an adversarial system such as that of Criminal Justice needs to provide for in order for Trial by Jury to be far more a search for truth and the Justice that such truth advances than a mere "witch hunt" carried out unfettered by- or, at least, on behalf of- those seeking mere revenge.

Put another way: if we Americans can't conceivably conduct such a trial under our own basic processes of Criminal Jurisprudence, then the score becomes at least Terrorists 1, Us 0 and we are, thereby, "behind": for we have then allowed terrorists (of all people) to have so dictated to us the terms under which we operate our own legal system-- in short: we- and, yes, it is "we" since any juridicial dispatching of 9/11 terrorist suspects will be done in the name of "We, the People of the United States"- will have, in such a case, only done that which those who perpetrated and trained, supported and aided, those who carried out the attacks of 11 September 2001 have always wanted us to do, ever since that terrible date: become a United States of America that-- well-- ceases to act as if it's really the United States of America!

Now, I myself have never had any problem whatsoever with holding these trials before a U.S. District Court judge in a secure facility far from the heart of New York City, rather than in the main federal courthouse in Lower Manhattan per se (though, as one local sportswriter [and, here giving credit where credit is, indeed, due: it was Phil Mushnick of the New York Post] so well pointed out a few weeks back: why is New York City so concerned with security issues in this regard when this, after all, is the same city that, rather recently [with the same person as Mayor at the time as is holding that same office now, by the way and all of this hoopla well post-9/11], so much once wanted to host the Summer Olympics? Talk about a security nightmare!]). The Southern District of New York, wherein the crime of the 9/11 terrorists against the World Trade Center was committed, happens to be large enough to encompass not only Manhattan and The Bronx, but also much of New York State's Lower Hudson Valley: thus, there are more than a few, relatively easily secured (here accepting the obvious: that "relatively easily secured" is, indeed, relative) sites within the Southern District of New York that could accommodate such trials in an otherwise civilian court with all due security concerns addressed.

So, why not a civilian proceeding?

In addition, Military Tribunal is itself problematic (although I have absolutely no problem with these same defendants being tried before a military tribunal for the 9/11 attacks on the Pentagon: for that building is, so obviously, a military installation where Military Law most definitely, and directly, applies-- but I would hold such a military tribunal after a civilian proceeding [for a number of reasons: the most salient being that more people died in the World Trade Center than at the Pentagon, hence the 9/11 attacks on New York should have priority]). The biggest problem with military tribunals is that they are- by their very nature- held in secret (in one of his 'Vox Populi''s on this issue, Ken Stremsky of New Hampshire [a frequent 'vox Populi'er to this website] argued that "[m]ilitary tribunals dealing with criminal prosecutions, however, should be open to the public if Congress chooses military tribunals for criminal prosecutions" but the very notion of "open Military Tribunals" is rather oxymoronic [for, if not for the very need for secrecy, then why hold military tribunals at all?]): for no matter how complete and truthful a Government-issued summary (or, perhaps, even independent reports in the press [by those journalists permitted to directly cover such tribunals, presumably under certain restrictions]) of such secret proceedings might, in fact, be, the very notion that the public need- or may only- be informed via such a redaction is itself the very fuel that will most, and well, feed the fires fanned by various and sundry conspiracy theorists (yes, I am not so naive as to think that such conspiracy theories will not at all issue in any event; but why purposely make them the more plausible: thus the more believable where not also even the more acceptable?) But another problem inherently lurks within the very question of "Why not a military proceeding?"- the 'yin' to my earlier 'yang' of why not a civilian one- and that problem has, at its core, the notion of seeking revenge at almost all costs, even the potential cost of ignoring the very concept of Justice altogether.

Arguably, the most famous example of just such a thing in American History is the trial of Charles Guiteau- the assassin of President James Garfield in 1881 (although Guiteau- unlike those accused of conspiring to assassinate President Abraham Lincoln a little over a decade and a half before- was not tried before Military Tribunal [I'll get back to this shortly, by the way]). Guiteau was undoubtedly the proverbial "nuttier than a fruitcake" (and is it just me?-- or does anyone else out there notice a rather strange facial resemblance between head-on portraits of Guiteau and the usually seen visage of Charles Manson, that icon of 20th Century base criminality?)- but the judge and jury seemingly needed to convict somebody of such a notorious crime: Guiteau, somehow, simply had to be held responsible.

In addition to any notion of vengeance driving the proceedings, Guiteau's fate at trial was pretty much sealed because, under England's M'naghten Rule (the result of one M'Naghten- in 1843- shooting and killing the secretary to the British Prime Minister under the delusion that he was, at the time, shooting the Prime Minister himself), being found Not Guilty for reasons of Insanity required a criminal defendant to either not "know the nature and quality of the act he was doing" or "not know he was doing wrong"; American courts- Federal and State- quickly adopted the M'Naghten Rule and it became the standard for the so-called "Insanity Defense" in these United States for decades thereafter.

M'Naghten prevailed in the proceedings in which Guiteau was the defendant (though, or so it can be argued, the very result of Guiteau's trial proved to be the proverbial "foot in the door" for those arguing- given the emerging science of Psychology in the late 19th Century going into the 20th- the modification of M'Naghten). It was almost impossible to seriously suggest that Guiteau couldn't have known that he was shooting the President of the United States and any defense that he might not have known shooting a President was wrong in and of itself also went right out the window at trial (Guiteau's protestations that, for example, God had commanded him to do so in order to save the Democratic Party not at all well contrasting with the picture portrayed by the prosecution of Guiteau as an disgruntled office-seeker altogether angry because President Garfield would not ever acknowledge that Guiteau had single-handedly helped Garfield achieve the Presidency [even though both such notions, obviously so strongly held by Guiteau at different times, are clearly delusional!])

Thus, Guiteau was convicted and, soon thereafter, executed via hanging. His final words uttered on the gallows, however, haunt us- at least those of us who every so often have to well consider the thin line between Justice and Vengeance- still:

after quoting from Mark 10:15 ("Whosoever shall not receive the kingdom of God as a little child, he shall not enter therein" [KJV]), Guiteau proceeded to recite a poem of his own composition intended- in his own words- to evoke "a child babbling to his mama and papa": he then proceeded to, indeed, recite his poem as if such a child (newspapers of the day described it as a "sing-song chant")- seemingly interpreting the biblical verse he had quoted quite literally as he faced his ultimate mortality:

I am going to the Lordy, I am so glad!...

Glory Hallelujah! I am going to the Lordy!...

I have saved my Party and my land.

Glory Hallelujah!

But they have murdered me for it.

And that is the reason I am going to the Lordy...

Once he had been hanged, many- reflecting upon his last "performance"- came to the rather sane conclusion that Guiteau was, indeed, crazy and likely was just as crazy when he shot President Garfield in the first place-- but, of course, by then, the assassin was conveniently dead and, besides, the leading newspapers of the morning following his hanging made sure to include an article- in many cases, but one column over from the rather graphic details of the Guiteau's final moments- about his autopsy underneath headlines proclaiming, for instance, 'GUITEAU'S BRAIN FOUND IN AN APPARENTLY NORMAL CONDITION'... so who were the assassin's contemporaries to then think otherwise?

While, again, Military Tribunal was not used in Guiteau's case (and, thus, it can be fairly argued [from what actually occurred in that case] that- given the way Guiteau had been handled- a civilian trial is, in and of itself, no guarantee that Vengeance, rather than Justice, will not, in the end, prevail), it seems to me that the current argument in support of the use of Military Tribunal does, in fact, largely turn upon the notion that- above all else- Military Tribunal will, somehow, make it "easier" to convict the 9/11 defendants than would be the case as regards civilian trial (and subsequent, where not also concomitant, potential appeals to higher courts) and this is where the very problem with using Military Tribunal lurks.

To go back to Military Tribunal as used to try the accused Lincoln conspirators: the argument, at the time, was that the United States was still at war (even though Lee had surrendered to Grant at Appomattox Court House five days before Lincoln was shot- an event that almost everyone, by consensus at the time, accepted as marking the Civil War's end, Sherman's troops were still engaging Johnston's in North Carolina even as the surviving conspirators were being tried). Unfortunately for the four such conspirators who were hanged, the Supreme Court's decision in Ex parte Milligan (please see my own Commentary on the Jose Padilla case for excerpts from the decision in Milligan) was still in the future at the time they were tried, convicted and sentenced to hang (indeed, by total coincidence, Milligan himself was originally sentenced to hang during the same month in which the trials of the Lincoln conspirators began, May 1865!)...

but the question still begs: were not the ordinary courts of the District of Columbia (the same courts in which, nearly 17 years later, Guiteau would be eligible to be tried)- where the crime that was the assassination of Lincoln had actually been committed- actually open for business in the Spring of 1865? Could not these have been availed of in the case of Mrs. Surratt and Messrs. Atzerodt, Herold and Payne/Powell? (Indeed, a D.C. judge did issue a Writ of Habeas Corpus on behalf of Mrs. Surratt the morning of her execution with the others- 7 July 1865- but, this being pre-Milligan, President Andrew Johnson declared the Writ to be suspended by Executive Order).

Utilizing Military Tribunal in times when, and places where, civilian courts are available is, thus, ever the proverbial "slippery slope"! (Which is, by the way, precisely why Ex parte Milligan is actually something of a watershed in American Constitutional Law, as underrated as it might be as such.)

Why, then, should there be civilian trials- at least as regards the attack on the World Trade Center? Because, as I've said before, it's what we- in America- do (or, at least, should do)!

I have already addressed- in my 16 November 2009 Commentary- the altogether specious argument- one so clearly lacking in necessary critical thinking- that "Terrorists don't follow the Rules: thus, why should we?" by noting that we should follow "the Rules" precisely because that is what "We, the People" are supposed to do: for it is precisely what the phrase 'Rule of Law' so obviously implies! Indeed, it is the very core of that concept of 'a Government of Law and not of men' first purposely enunciated by a British governor on an isolated Caribbean outpost in the early 18th Century but, later, picked up by the Framers of Our Nation's Constitutions (I use the plural here because I am also including the Constitutions of the several States, as well as that of the United States as a whole) so as to become the very underpinning of American Jurisprudence.

'But', or so it is protested in retort to what I have just opined,'holding civilian trials isn't going to make the Terrorists like us any better; those who despise America- in any manner, whether abroad or here at home- are not necessarily going to suddenly look favorably upon the United States if we do so'... to which I can only respond:

So what?!

As in personal behavior, the Prime Directive- if you will- of society is rather simple: Do the Right Thing

There are always a number of corollaries to this basic admonition, however:

1. Do the Right Thing, even if no one else happens to be watching;

2. Do the Right Thing, even if no one else even really cares!

So, who- in return- cares if Jihadist Terrorists (who certainly don't care about Americans and their interests abroad) would still want to kill and maim Americans and/or the citizenry of Nations that count amongst Our Nation's Allies and Friends even if we do try the 9/11 defendants in civilian, rather than military, court? Who, then, cares if many overseas, and more than a few here in the States, don't particularly like "USofA, the Last Remaining Superpower (but also, let us not ever forget, Lincoln's 'Last, Best Hope of Earth')"?

Due Process itself neither knows nor contemplates such distinctions; the American Constitution is silent as regards such anti-American attitudes: therefore, exercising that very legal Process which is, indeed, Due is the Right Thing, regardless.

Why, then, do so many of my fellow Americans- on both sides of the Aisle- seem to be against civilian trials for 9/11 defendants? Why do so many Americans (and it matters not, for purposes of this piece, whether they form a Majority or merely a rather sizable Minority) want matters to be settled- even as regards an attack on a non-military property that killed and injured mostly civilians- by Military Tribunal? Is it solely about Vengeance potentially overtaking Justice?

No- though, again, Vengeance is a rather large part of the equation: for the most part, however, it is FDR's "Fear itself", yet once more, raising its ugliest head. So, to the questions starting with 'Why?' I posed in the previous paragraph, I must here answer:

I dunno.... perhaps, despite the trials and tribulations engendered by the horrific events of 9/11, America has yet- to this very day on which I am typing this- to truly "grow a pair".... literally!

For, like some pre-pubescent child or early Adolescent, the United States has seemingly come to think that, by putting the proverbial "beat-down" (in the case of the present issue being discussed in this Commentary, a jurisprudential "beatdown") on our enemies, we are, somehow, that much closer to Victory.

Sadly, this is all- in the main- so much smug self-satisfaction (as is the case with a teenage bully knocking someone into school lockers whilst kicking their books down the hall): that ever-dangerous "Action confused with Accomplishment" I myself have so often decried on this website in many a political and electoral context. All we come off as, when holding just such an attitude, is a bunch of jerks and- again, as is the case as regards personal behavior, so it can be with an entire society and culture- no one really likes, nor much respects, a jerk; although yes: at the same time, even when a former jerk ceases so to be, others around him/her may take a rather long time to- and many will never ever do so in any event- see the former jerk in question as actually having lately become a potentially decent human being.

But none of this at all changes the fact that the solution to all this is for the jerk to stop being one (or, at least, to stop putting oneself in the position of being, rightly or wrongly, seen as one)! Actually practicing what one preaches is, therefore, a rather good way of at least attempting to mitigate all this, even where it is never ever really fully mitigated in the minds of others (but, again, who cares if it is so mitigated? Unlike adolescents, Adults know- or, at least, should know- that it doesn't really matter: one has to practice what one preaches anyway)...

which brings me to:

3. Do the Right Thing, even if no one else ever fully accepts that it is, indeed, Right.

And the Right Thing, in this case, is to not at all abandon Due Legal Process.

I will here quote, again, from my 16 November 2009 Commentary, where I closed by asking the following questions (I will change only one word- it will be seen in brackets in the italicized quote below- to drive home my point):

have [we] simply lost all due faith in Our Constitution and the very legal system it so well harbors?...

or have we, indeed, already so given up our own commitment to Liberty (in which case, terrorists do win)?

Difficult questions, indeed. But I will also, however, repeat what I wrote four months ago in between these above questions as being, more or less, my own answer to them:

I, however, have not at all lost such faith- and I certainly refuse to fear (as I've said before on this website)...

therefore, let [the 9/11 defendants] be tried for those crimes it is alleged they have committed in the manner to which our own Free Society is more usually accustomed: allow the Constitution to work and, thereby, keep our polity operating thereunder as a government of Law and not of men!

There has, very recently, been a television advertising campaign, here in the States, for a national coffee/donut store chain on behalf of one of its specialty breakfast sandwiches to the effect that "Waffling is back!"...

unfortunately, and sad to say- on what is an altogether important legal issue, not to also say outright constitutional challenge: waffling sure is back in the White House and in the Justice Department!

Modified .