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Commentary Last Updated: Apr 10th, 2008 - 00:25:43

Should Khalid Sheikh Mohammed be set free?
By Mike Whitney
Online Journal Contributing Writer

Apr 10, 2008, 00:18

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"This is the time to demonstrate to the world that the United States need not abandon its principles even as it seeks to ensure the safety of its citizens." --Janet Reno, former US Attorney General and member of ACLU Guant�namo Defense "Dream Team"

Should Khalid Sheikh Mohammed be set free?

It's a difficult question, but it deserves a serious answer. Here's why. The only reason the Bush administration has decided to conduct a trial for Mohammed, the alleged terrorist mastermind of the attacks on September 11, is because they feel confident in the outcome. It's a slam dunk. There's no chance that the alleged perpetrator of the biggest act of terrorism in American history (against America, that is) will be found innocent.

Bush thinks a Mohammed conviction will be a vindication for his kangaroo courts (military tribunals) at Guant�namo Bay as well as reinforce the belief that the president has the inherent right to arbitrarily imprison anyone he chooses if he brands him an enemy combatant. It is a cynical power play meant to increase presidential authority while further undermining fundamental legal protections. That means that the so-called tribunals will be choreographed by the Bush public relations team to rehash 9-11 in as frightening terms as possible invoking the same, worn demagoguery we've heard for the past six years.

On the other hand, the ACLU, which has courageously decided to defend Mohammed, will try to demonstrate the basic unfairness of the proceedings (which provide defendants with fewer rights than civilian trials or courts-martial) and how the Bush administration has violated the law at every turn by denying Mohammed due process and by using harsh interrogation techniques, including torture, to extract a confession.

Bush is no friend of civil liberties or justice. Since he first took office in 2001, he's waged a persistent and systematic no-holds-barred attack on the Bill of Rights and the Geneva Conventions. Last week, a 30-page memo authored by former senior Justice Department lawyer John C. Yoo surfaced, showing that the Bush administration worked assiduously to create a legal framework for justifying the cruel and inhuman treatment of detainees in their custody.

"Could the president, if he desired, have a prisoner's eyes poked out? Or, for that matter, could he have 'scalding water, corrosive acid or caustic substance' thrown on a prisoner? How about slitting an ear, nose or lip, or disabling a tongue or limb? What about biting?"

According to Yoo's 81-page memo, which was declassified last week, the president had the legal authority to order any of these acts of barbarism because, as Yoo said, "Federal laws prohibiting assault, maiming and other crimes by military interrogators are trumped by the president's ultimate authority as commander in chief." The memo also repeats Yoo's assertion that an interrogation tactic cannot be considered torture unless it results in "death, organ failure or serious impairment of bodily functions."

The memo proves that Bush was aggressively seeking legal justification for the cruel and degrading treatment of prisoners and deliberately circumventing the law. Yoo was paid to dignify Bush's coercive detainee policies with legal flim-flam. He was fully aware of what he was doing; he was a willing accomplice to a crime. As conservative pundit Andrew Sullivan pointed out on "Hardball" this week, "The latest revelations on the torture front show the memo from John Yoo . . . means that Don Rumsfeld, David Addington and John Yoo should not leave the United States any time soon. They will be, at some point, indicted for war crimes."

Yoo worked in the Office of Legal Counsel, which means that his written opinions had "the force of law within the government because its staff is assigned to interpret the meaning of statutory or constitutional language." [Washington Post] In other words, Yoo was the "go-to" guy. The memo proves that the treatment of terror suspects was premeditated and criminal.

But what does Yoo's memo have to do with the trial of Khalid Sheikh Mohammed?


It shows that the government was intentionally carrying out war crimes while conducting its so-called war on terror. It shows that the military tribunals have nothing to do with establishing the guilt or innocence of the defendants. They're just politically motivated show trials designed to enhance executive powers and further savage civil liberties. The administration hopes that by trotting out the so-called "worst of the worst" they can scare the pants off the public and weaken their commitment to the rule of law. But whatever hatred or rage Americans may feel for the alleged perpetrators of 9-11, it is not worth destroying the laws that protect us all from the long arm of the state. If Bush is allowed to create his own parallel justice system, with its own courts and procedures, what's to stop him or a successor from using that same model at home? Does anyone seriously think that Bush would hesitate to use the military tribunals on alleged eco-terrorists, protestors at the School of the Americas, or antiwar activists like the Irish member of the Pitstop Ploughshares who was just barred from the US for his efforts to stop Bush's bloodbath in Iraq?

No way.

Bush has done everything in his power to place himself above the law, particularly when it comes to deciding issues of life and death. These are not matters that should be left to the flawed judgment of one man. By ignoring the flagrant violations of the law in the imprisonment and subsequent torture of Khalid Sheikh Mohammed, we further reinforce the precedents that Bush is setting. That's a blueprint for dictatorship.

The law is our only refuge from would-be tyrants like George W. Bush. In "A Man for all Seasons," Thomas More summed it up like this: "And when the last law was down, and the Devil turned round on you, where would you hide, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of the law, for my own safety's sake!"

However horrible he may be, Khalid Sheikh Mohammed poses no threat to our system or our freedom. Bush does. We'd be better off letting one guilty man go free than than destroying the laws that protect us all from liberty's greatest enemy; the State.

Mohammed has been abducted, tortured, and deprived of his rights. Give him an ankle bracelet, and let him go.

Mike Whitney lives in Washington state. He can be reached at

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