"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
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
But what does Yoo's memo have to do with the trial of Khalid
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?
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.
Whitney lives in Washington state. He can be reached at firstname.lastname@example.org.