The Only Anchor

Attorney General Eric Holder announced Friday that some top al-Qaeda 9/11 conspirators will be tried by jury in New York not far from the scenes of devastation that they had wrought.

This decision by the Obama administration demonstrates faith in the American way of life, and a conviction that even the worst mass murderers can be dealt justice by democratic institutions.

Predictably, Republican critics vowed to fight the decision, since they much prefer to hold people forever without trial while torturing them, sort of the way some English kings did in North America before there was that pesky American constitution. In fact, on a whole range of issues, the contemporary Republican Party is a party of medieval romanticism. Its disquisitions on when the human person begins are theological in character and rooted in assumptions even a lot of medievals would have questioned. Its faith that bankers would never steal from us and so do not need to be regulated is a form of mysticism that medievals would have applied to saints. And its fascination with arbitrary arrest and imprisonment and with torture more recalls the star chambers of yore than the deliberations at Philadelphia over 200 years ago.

Let us listen not to John Boehner of Ohio but to a Founding Father, Thomas Jefferson:

‘ “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” –Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269 ‘

Or here is John Adams:

“Representative government and trial by jury are the heart and lungs of liberty.” – John Adams (1774)

Many Republicans oppose not only jury trials but even habeas corpus for the prisoners at Guantanamo (the right to apply to a court judge to be produced in court so that the authorities are forced to justify the prisoner’s imprisonment). They do so on supposed national security grounds, just as the British kings used to. In fact, of course, these prisoners have no fresh information on plots and cannot possibly know anything of value to any contemporary terrorists at large, since they have been sequestered for so many years.

Here is what Thomas Jefferson had to say about the suspension of rights such as habeas corpus on national security grounds:

‘ “Why suspend the habeas corpus in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages. Examine the history of England. See how few of the cases of the suspension of the habeas corpus law have been worthy of that suspension. They have been either real treasons, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension.” –Thomas Jefferson to James Madison, 1788. ME 7:97 ‘

Al-Qaeda number 2 Ayman al-Zawahiri mocked the US that real liberty “. . . is not the freedom of Guantanamo and Abu Ghraib.” The Republican way of dealing with terrorists gave enormous propaganda tools to al-Qaeda.

Obama just took those propaganda tools away from the enemy and began the process of repairing America’s reputation and its fidelity to its own ideals.

End/ (Not Continued)

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13 Responses

  1. Professor,

    Unlike you, I have very mixed feelings about this. The first is outrage at the last administration for not getting on with the trials at GTMO to start with – these guys should be fish food off the coast of Cuba by now.

    Now for this administration: The idiocy of granting KSM – this is the KSM that publicly told military Judges he planned the 9/11 attacks – a trial in NYC is appaling. He's already pled guilty which sent the lawyers for a spin. We've spent enough money because of al-Qaida already. We should not be spending more money to go through the legal niciety of killing our enemies. It does not belittle our democracry to chase down and kill al-Qaida terrorists. It is what we should do.

    I'm all for US citizens rights and I am very troubled by the treatment metted out to US CITIZEN Jose Padilla. But we have got to come to terms with the fact that we are at war with al-Qaida and when we find al-Qaida on the battlefield the rule of engagement should be to shoot to kill.

    One final point about your assertion that Bush gave Zawahiri propaganda material. Zawahiri and UBL have never been at a loss for things to bitch and moan about – they never will be either. Do you think a Federal trial in NYC will come close to the Islamic jurisprudence they adhere to? Daniel Pearl received their version of justice.

  2. Juan, I'm afraid your statement that the Obama administrations decision reflects a faith in the Amer1can way of life etc. is flat whacky!!! Glen Greenwalds piece at Common Dreams.Org makes it clear that what is happening is nothing more than putting lipstick on the pig of the prior administrations corrupt shenanigans!!!! It's US business as usual! – except under a covering of a more subtle mascara!

  3. It is VERY interesting that when the US public begins to demand a pull-out from Afghanistan, Obama decides to go down the show-biz road (9/11 trail in NYC) to get people's loyalty to the war effort pumped up. THIS IS ALL SHOW-BIZ, FOLKS !!! The families of the 9/11victims will be all over the news. It is going to be a pepper-alley for war!! This spectacul/show is going to put the Barnum and Bailey circus to shame. Professor Cole, you seem to have fallen for this staged attempt to continue a sensesless war.

  4. I agree that the decision to bring people accused of the 9-11 attacks should be brought to trial by jury in New York, a most fitting venue. And your quotes from Thomas Jefferson and John Adams that say that trial by jury is essential to maintaining the principles of the U.S. Constitution are right to the point.

    My guess is that Adams and Jefferson would have insisted that ALL prisoners whom the government believes guilty of a crime be brought to trial by jury. Do you agree? Please express your opinion on this question.

    Attorney General Holder has decided (according to the article you cite) that some will not have a trial by jury but will be subject to military commission justice, which have much lower standards of justice. The excuse seems to be that they are accused of crimes committed outside the U.S., but isn’t this pretty lame? Glenn Greenwald writes that this is Alice in Wonderland justice, that the guilty verdict has to be assured and that trial by jury is being reserved for only those whom the prosecution believes with near certainty will be convicted. And in the cases where there is no credible evidence of guilt, the person will just stay imprisoned without ever being accused, according to Greenwald. Is Greenwald right? If he is, isn’t that turning the Constitution upside down?

  5. Whatever we say about our enemies, they appear to have the courage of their convictions.

    Time for us to have courage for ours.

    If the crime was committed in (or plotted for) the US, try them in regular court. If the attack was against the US government overseas, military jurisdiction is justified.

    To those who think the 9/11 attacks were an act of war, remember that that makes these people prisoners of war who must be released without trial at the end of hostilities.

    To those who want to emphasize the crime against humanity, would you have them tried in Europe by an international court instead of by us?

    To those who fear attack, the enemies are already out there. If they want to come at a time and place that we can be most prepared to defeat them, that is better than waiting for them to get creative.

  6. Dear Mr Cole,

    Last but not least:

    Innocent until proven guilty

  7. Amen, Juan. As usual, your knowledge and reason utterly destroy the conservative arguments.

  8. Prof Cole writes, "…Obama just took those propaganda tools away from the enemy and began the process of repairing America's reputation and its fidelity to its own ideals…"

    – This is malarkey. Cole misses the whole point, which (as per Glenn Greenwald's analysis, at link to is that Obama/Holder are putting on trial only those prisoners who are sure to be convicted. Other prisoners will get only military trials, where evidence obtained by torture & hearsay is admissible. Still other prisoners (in fact, the great majority of those at Gitmo) aren't getting any trials at all.

    Furthermore, the trials for the 5 prisoners in civilian courts are only show trials, intended precisely as "propaganda", to justify the Bush/Obama "War on Terror". The trials have nothing to do with "justice." They are intended merely to reinforce the lie that the ongoing US imperialist wars are about [the uninvestigated official story of] 9/11, rather than what they really are: a US military grab for oil, pipeline routes, & permanent bases in Central Asia & the Middle East.

  9. English monarchs may have resorted to torture (the Tudors in particular come to mind), but it was never legal. Unfortunately the Obama administration is setting up a legal machinery for trying people who have been tortured into confessing–something that the 5th Amendment was explicitly created to prevent.

    As a prefious commenter noted, Glenn Greenwald gets it right.

  10. ref : “Predictably, Republican critics vowed to fight the decision [to try the alleged perpetrators of 9/11 in open court in NYC], since they much prefer to hold people forever without trial while torturing them… {grin} too snarky, Juan; imho You need to revisit the meanings of this event with considerably more intellectual effort, e.g., The Washington post, “9/11 trial could become a parable of right and wrong : Before worldwide audience, both prosecution, defense to seek control of narrative

    “9/11”… What was it, really, Juan ~ What will be the final judgement of its history writ? Was “9/11” a military attack, or a criminal assault — that is the question du jour, mon cher Professeur. If “9/11” was a criminal assault, then Bush/Cheney have indeed committed monumental blunder by giving al Qaeda the narrative of "Global War" that Osama bin Laden so dearly wanted. By their doing so, thus elevating this literal ‘outlaw’ gang to an opponent worthy of dueling mano-a-mano with the finest assault troops of the most powerful armed force that has ever existed on the planet. On the other hand, If “9/11” was a military attack, then Bush/Cheney have likewise committed monumental blunder by not assigning to their enemy, apparent the status of "Prisoners Of War" — in effect, diminishing our own finest soldiers to mere crime fighters ~ sullying our own cherished principles of civil liberty and military justice. The Trial has the effect of posing the question that is “9/11?” that remains, today, unresolved. Try as they might, "the Republicans," et al quandary is that they cannot control the inevitable distillation of this logic: the reckoning process of their reaction to “9/11?” is, itself their narrative dilemma. I don't know if Mr. Obama, himself actually foresaw this wicked, rhetorical "Knight's Fork" end-game ~ but imho the disposition of these defendants by the virtue of their trial pales in comparison to the reckoning that awaits the "either profoundly incompetent or criminally negligent" members of the Bush/Cheney administration in this, their trial being: our judgement of “What was 9/11?”

  11. "They are intended merely to reinforce the lie that the ongoing US imperialist wars"

    The biggest lie here is that there are any US imperialist wars in this era.

    "US military grab for oil, pipeline routes, & permanent bases in Central Asia & the Middle East."

    What crazy cospiracy-theory boobery this is.

  12. Re Founding Fathers' quotes on jury trials: when these quotes were uttered, who could serve on juries? Who could ask for trial by jury? I'm guessing not too many people.

  13. Dr Cole, I'm a huge fan of your blog and consider it one of the best voices on mideast politics. However, I don't agree with you here because the Obama administration isn't trying all of them. They are cherry picking the ones they know they can convict. Don't get me wrong, I understand why they are doing it. They've been backed into a corner by the despicable policies of the Bush/Cheney administration. We don't have evidence on many of them that is admissible in a civilian court so they know if they bring them to trial that the case will be dismissed and they'll go down in history as the Administration who helps terrorists and hates the US. It's very complex and my thoughts go back and forth on it.

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