A Constitution for Me, But Not for Thee

Now that they've announced plans to try Khalid Shaikh Mohammed and four other 9-11 suspects from Gitmo on criminal charges in a New York federal court (but to try five others before military tribunals, about which more later), the forces of fear and hate are gathering.

There's Texas Senator John Cornyn, formerly a trial judge and member of the Texas Supreme Court who's supposed to believe in and have actually applied the Constitution, explaining that mass murderers don't deserve criminal trials and that since the accused are guilty, there's really no point to it except "political ideology."

These terrorists planned and executed the mass murder of thousands of innocent Americans. Treating them like common criminals is unconscionable.

The attacks of September 11th were an act of war. Reverting to a pre-9/11 approach to fighting terrorism and bringing these dangerous individuals onto U.S. soil needlessly compromises the safety of all Americans. Putting political ideology ahead of the safety of the American people just to fulfill an ill-conceived campaign promise is irresponsible.

There's the master of personal integrity (don't carp; it's irony) Joe Lieberman, a graduate of Yale College and Yale Law School (does he support his alma mater press's decision to remove the images of Muhammad from the book about the effect of those images?) who's also already determined guilt, but that's OK because we're talking about "war criminals" who don't have that presumption of innocence because they're not citizens. Per CNN:

The September 11 terrorists "are war criminals, not common criminals," he argued. They are "not American citizens entitled to all the constitutional rights American citizens have in our federal courts."

OK, so Lieberman believes only citizens have (or should have) constitutional rights. It's an interesting idea that has no legal support, but then he's just a lawyer and senator so what does he know?

The truth, of course, is that it isn't about constitutional protections at all. No more than it's about safety or about the fear that somehow Mr. Mohammed and the others will be able to "rally their followers" (that's Joe, again) from within the federal court.

Scott Greenfield rightly explained that it's all bull, a political smokescreen blown by people who don't really believe in the Constitution - at least not ours - when it's inconvenient.

Don't blame Cornyn and Lieberman for seizing the opportunity, but question why anyone would take them seriously. For better of worse, the United States has developed a methodology for determining whether anyone who has committed an offense against our nation. Theoretically, this methodology comports with the demands of the Constitution, the fundamental framework for the operation of our government and its assertion of authority over others. These Senators took an oath to uphold this Constitution.

Yet they jump through hoops, blurt out inflammatory claims as if our system only applies to "common criminals," and seek to delude the public with false claims that the system upon which American justice is grounded is suddenly incapable of dealing with an incoming flight from Gitmo? They suggest that there must be another secret America, where trials are conducted in secret to protect our ears from the evils of torture and our people from the threat of still more jihadist bombers?

Here's a newsflash. We already know about the waterboarding. It's been in all the papers. We know that KSM was subject to waterboarding 183 times. That's old news, and the disclosure at trial isn't going to surprise anyone.

Here's another newsflash. If the jihadists want to blow up a building to show us what they think of our system, our "freedoms", there are plenty around. We've got a country filled with big building built from Indiana limestone, and even if KSM is tried in a newly built courtroom on the Island of Cuba, they can still blow one up in Nebraska and capture our attention.

About the only one who's being honest is Kent Scheidegger who admits it's about wanting to kill.

A life sentence for KSM would be a travesty of mammoth proportions. It's bad enough that we have Charles Manson and his classmates of the Class of '72 grinning at us from their inadequate punishment, but to have this killer of thousands do so is close to unthinkable.
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But isn't death so obviously the right punishment for KSM that we don't need to worry about that? No. Although people so adamantly against the death penalty that they would vote against it in every case are supposed to be screened off the jury, some simply lie when questioned about their attitudes.

[That last is an interesting question. Who lies more to get on capital juries: Abolitionist types who want to be on the jury so that they can prevent an execution or pro-death types who want to be on the jury so they can ensure one? Peremptory challenges exist, in part, to help get both sets of liars off the jury. On my side of the aisle, the belief is that the killers lie and the abolitionists tell the truth. If there are actually meaningful studies that try to answer the question, I haven't seen them. End of digression.]

It's true, of course, that most capital prosecutions end in life sentences. Scheidegger thinks they shouldn't, and that they do only because the system doesn't work as it should. He's open about that, and doesn't shy away from it. (He actually includes a list in his post of several men who got life sentences but should, he believes, have gotten death.) It's not about the criminal for him, not about legal niceties like individualized determinations and mitigation.

You did a bad thing. You die.

There's a simplicity to that, a symmetry, many find pleasing. I don't share it, but I understand it. Except it's not our system. We chose, over 200 years ago, a system that says even bad guys get treated well. Some idea of equivalence sets a maximum. It never sets a minimum. And everyone gets treated fairly - not just those who might be innocent.

Hell, it's not even clear innocence is relevant to the law, let alone to the Constitution. The rights attach regardless. The system is ours because we're better than to not have it. And if you want the system, well then, you want some killers not to fry. Even if you want them all to fry.

And see, here's the thing. Those jurors who couldn't unanimously agree on death? The ones you think are dishonest or chickenshit or would-be terrorists or who-knows-what? Yeah, those of your peers? Maybe they're right. Maybe the system was working exactly the way it should when Zacarias Moussaoui got life instead of death, even if Kent Scheidegger thinks it's obvious he should have been killed.

And maybe the real danger to the system isn't that Khalid Shaikh Mohammed won't get death but that five other guys from Gitmo won't get real trials at all. Because Eric Holder's comfortable enough with the odds of at least getting Mohammed convicted, but the guys he's not sure about - they get a system with lower standards.

See, he and his boss, they believe in the Constitution a little. Unlike Bush and Ashcroft and Gonzalez and Mukasey and Cheney and John Yoo and the rest of the gang of however many they think it's OK to actually provide constitutional rights sometimes, when you're sure enough of what the outcome will be. But ultimately, they're with Cornyn and Lieberman. When it gets dicey, go with the tribunals. Better to get a conviction and a death sentence than to honor our system.

Next up, Dr. Hasan.