Heather Robinson

From The Huffington Post
by HEATHER ROBINSON

Just watched this video clip of former New York City Mayor Rudy Giuliani discussing the impending trial of high level al Qaeda operatives, including 9/11 master planner Khalid Sheikh Mohammed, in New York City.

Giuliani, who in his capacity as a former U.S. attorney prosecuted numerous terrorists, thinks the Obama administration’s plan to bring KSM and others to New York City for civilian trials is a bad one. He points out that these notorious war criminals will, if tried in U.S. courts, be granted the rights of civilians, which is inappropriate given that they have declared and committed acts of war.

To Giuliani’s analysis I would add/emphasize that not only will KSM & Company be granted the rights of civilians, but of civilian U.S. citizens, who are the people our laws and courts are designed to protect. So this decision seems doubly wrong-headed; not only are these dangerous men not civilians, they are not U.S. citizens.

Giuliani points out that the cases could be thrown out by a judge who, say, deems that some of the evidence of these men’s crimes was gathered in a way that “shocks the conscience.” That is because, as Giuliani explains, the entire U.S. criminal justice system is designed, first and foremost, to protect the rights of innocent U.S. citizens. “Our system is geared towards letting the guilty go free if there is any doubt. It’s a very different situation when you are at war.”

Giuliani believes the Obama Justice Department’s move reflects a concern about offending people in the Islamic world over concern for the safety of U.S. citizens. He also eloquently explains that it is not treating terrorists as such that is likely to offend law-abiding members of the Muslim world, but the condescending assumption that peaceful Muslims can’t differentiate between our handling, as a nation, of terrorist masterminds and our handling of Muslim-American citizens, or our perceptions of Islam. I’m inclined to agree, and would also argue that this decision more reflects concern over others’ opinions than true concern for civil liberties. For one thing, the small number of individuals who are now being held at the U.S. Naval base at Guantanamo Bay, Cuba are treated humanely, something no greater a critic of the Bush Administration than filmmaker Michael Moore (of all people) highlighted in his movie Sicko, which asserted the excellent health care (superior, according to Moore, to that available to many U.S. citizens) available to the inmates there.

More significantly, bringing these men to trial in New York will increase safety risk to U.S. citizens — especially if they are released. And as Giuliani pointed out, U.S. defense attorneys will be under legal and ethical obligation to make strenuous arguments in favor of their release. That is the way our civilian justice system is designed to operate. Despite Eric Holder’s recent statement to the effect that a high-level terrorist like KSM would not be released, if defense attorneys failed to muster all the arguments and evidence they could (including exploiting sophisticated legal arguments and loopholes) to argue for these men’s release, or if a judge refused to allow for the possibility of acquittal, the trial would not be legitimate. To put it simply, in bringing these men to civilian trial the Obama Administration is allowing for the possibility that they may be released at some point, unless the trials are kangaroo trials and our system made a mockery.

Safety does not always automatically trump concerns over civil liberties. In times of war, a balance must be achieved. Incarcerating whole populations in order to theoretically protect Americans against attacks that might — or might not — materialize, as happened to Japanese-Americans during World War Two, was a gross violation of the civil liberties of American citizens. The theoretical possibility of threat from Japanese-Americans (a threat that, as far as I am aware, did not materialize) was given huge weight over the rights of these Americans, who unlike their ethnic brethren overseas were simply not at war with us. Thus despite a lack of evidence, whole populations of Japanese-Americans were lumped in with foreign enemy combatants in our assessment of their mindset. Although it may have been motivated by desire to protect Americans, the policy punished innocent Japanese-Americans and, insofar as it reflected fear, not logic, failed to accomplish anything in the realm of national security.

On the other hand, it could certainly be argued that, with mistakes like the incarceration of innocent Japanese-Americans fresh in our memories, we are fighting the last war and have swung to the other extreme. Endangering innocent Americans in order to bend over backwards to grant “civil liberties” to a small number of foreign enemy combatants (whose own nations and codes of ethics recognize no such concept) is a violation of Americans’ civil liberties — starting with the rights to life and security.

After all, before one’s right to a fair trial, to freedom of speech and assembly, to freedom of religion, comes one’s right to keep breathing. If a government cannot reasonably protect its citizens from the threat of physical attack, cannot within reason ensure basic security, it is not doing its number one job as a government that serves its people. Similarly, when a government abandons a suitable level of national defense and leaves itself vulnerable to attack or overthrow, all the other rights and privileges it grants its citizens will soon be meaningless.

Protecting citizens from violence should not be used as a cover to encroach on civil liberties. And basic rights such as the right to move in public spaces, to assemble, to speak, etc. should not be sacrificed, even during wartime, if at all possible. But being at war with a fanatical enemy does sometimes necessitate common sense defensive measures.

Like those who, at a time when thousands of Israeli civilians were being attacked in Tel Aviv and Jerusalem on the streets, in restaurants, and on buses by suicide bombers, argued against the construction of Israel’s security fence in favor of deference to Palestinian Arabs’ civil liberties, those who argue for civilian trial for the likes of Khalid Sheikh Mohammed are misapplying sacred principles — the right of citizens of democratic countries to protection against government overreach — to people who are at war with us (and with those principles). Also, they have picked a dangerous time to misapply those sacred principles.

To put it simply, what about the civil liberties of the Israeli citizens who were losing their lives, their arms and legs, on buses that had been turned into infernos? What about the rights of New Yorkers who go to Lower Manhattan to work, and will be exposed to greater physical risk, and the rights of all U.S. citizens who will be exposed to great risk in the event these men are released, even years hence? These rights are being cast aside so our government can grant imaginary rights to citizens of other nations, in this case to individuals like KSM, who make no secret of their intention to fight against us a war without end.

It’s just not good common sense. And it is a violation of Americans’ civil liberties.