In 2003, we found Khalid Sheikh Mohammed hiding in Pakistan. In 2011, we’re still trying to put him on trial.
KSM’s capture was a major American victory, and he is probably the highest-profile terrorist we’ve managed to find so far. But his prosecution has turned into a war over American values.
Khalid Sheikh Mohammed is my enemy and yours. He was the monster behind 9/11 and Osama bin Laden’s right hand man. He recruited the hijackers, picked the targets and made it happen.
And since we captured him in 2003, he’s been whisked from place to place and tortured regularly.
Sympathy does not come easily. He’s been waterboarded hundreds of times for thousands of murders. In a just hell, he’ll drown for many years.
But America’s honor is greater than any one man’s evil — even his. And the American people balked at torture. Obama vowed to close the camps and end the practice, so we made him president.
Now, the “enhanced interrogations” have been abandoned, and the “black sites” — KSM was held in Poland — have been ordered closed.
But the battle over KSM’s body was about much more than torture. It was also about the rule of law.
Criminals get lawyers, trials and rights, starting with habeas corpus, which is the right to appear before a court. War prisoners can be held without any of those things, until their war is over. So if the war on terror never ends, its prisoners never have to be released.
But in a series of decisions, the Supreme Court gave habeas corpus to all detainees held in America. And then they extended it to Guantanamo.
So terrorists can still be held forever, but only if we never bring them home. For KSM and others here already, we’ll be holding trials, and for the last several years, we’ve been struggling over where to do that.
Obama wanted to try KSM in Manhattan before a civilian jury. The symbolism would be awesome.
But New Yorkers didn’t want him, and Congress took their side. Many New Yorkers seemed to worry about safety, and the possibility that such a trial might attract terror attacks. Others worried a civilian jury might acquit — as unlikely as that seems.
At this point, we had a vigorous two-sided debate: “send a message” versus “keep us safe.” But in the background, a third side was watching quietly.
Because at some level, our treatment of KSM has always been about the enemies still out there. We captured the man, instead of killing him, because he had information we wanted. And he gave us a lot of good stuff.
But our enemies can no longer be subject to torture tactics like waterboarding or squirreled away in secret prisons. Unless we find a more creative place to store them, they get habeas corpus and trials. So what’s the value of a captive now?
At some point, these people just start dying on the battlefield.
So by abandoning KSM’s civilian trial, Obama may have saved a thousand lives.
And that’s really the debate we are having — though few know it.
Reach John at john.a.gaylord@asu.edu
