* * * * * 

Can anyone reconcile Obama's homage to "our legal traditions" and his professed faith in jury trials in the New York federal courts with the reality of what his administration is doing:  i.e., denying trials to a large number of detainees, either by putting them before military commissions or simply indefinitely imprisoning them without any process at all?

During his appearance before the Senate Judiciary Committee yesterday, Eric Holder struggled all day to justify his decision to put Khalid Sheikh Mohammed on trial because he has no coherent principle to invoke.  He can't possibly defend the sanctity of jury trials in our political system -- the most potent argument justifying what he did -- since he's the same person who is simultaneously denying trials to Guantanamo detainees by sending them to military commissions and even explicitly promising that some of them will be held without charges of any kind. 

Once you endorse the notion that the Government has the right to imprison people not captured on any battlefield without giving them trials -- as the Obama administration is doing explicitly and implicitly -- what convincing rationale can anyone offer to justify giving Mohammed and other 9/11 defendants a real trial in New York?  If you're taking the position that military commissions and even indefinite detention are perfectly legitimate tools to imprison people -- as Holder has done -- then what is the answer to the Right's objections that Mohammed himself belongs in a military commission?  If the administration believes Omar Khadr belongs in a military commission, and if they believe others can be held indefinitely without any charges, why isn't that true of Khalid Sheikh Mohammed?  By denying jury trials to a large number of detainees, Obama officials have completely gutted their own case for why they did the right thing in giving Mohammed a trial in New York.

Even worse, Holder was reduced to admitting -- even boasting -- that this concocted multi-tiered justice system (trials for some, commissions for others, indefinite detention for the rest) enables the Government to pick and choose what level of due process someone gets based on the Government's assessment as to where and how they're most likely to get a conviction:

Courts and commissions are both essential tools in our fight against terrorism . . . On the same day I sent these five defendants to federal court, I referred five others to be tried in military commissions.  I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law. . . . At the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is a federal court.

Does that remotely sound like a "justice system"?  If you're accused of being a Terrorist, there's not one set procedure used to determine your guilt; instead, the Government has a roving bazaar of various processes which it, in its sole discretion, picks for you based on ensuring that it will win.  Even worse, Holder repeatedly assured Senators that the administration would continue to imprison 9/11 defendants even in the very unlikely case that they were acquitted, citing what they previously suggested was their Orwellian authority of so-called "post-acquittal detention powers."  Is there any better definition of a "show trial" than one in which the defendant has no chance of ever being released even if acquitted, because the Government will simply thereafter assert the power to hold him indefinitely without charges?  

I understand that sending even a limited number of Terrorism suspects to federal court is politically difficult and controversial, as the last couple of days have demonstrated.  But by refusing to embrace and defend the core principle of justice at stake here -- that a distinguishing feature of our political system is that we don't imprison or kill people without charging them with a crime and proving their guilt in a real court, and that military commissions and indefinite detention are un-American (which Democrats argued under Bush) -- the Obama administration has made it far more difficult for it to defend what it is doing, as well as for those who want to defend their decision to give trials to 9/11 defendants.

To see how that works, here is part of the exchange I had on MSNBC this week with George Pataki, while debating trials for 9/11 defendants:

MR. GREENWALD:  If you look at how the British treated the people who did the London subway bombings, the Spanish who treated the people who did the Madrid subway bombings -- even India just put on trial the sole surviving terrorist who perpetrated the Mumbai massacre last year. Even Indonesia gave trials in their real cities to the people who blew up the nightclubs in Bali.

It's only the American conservatives who are feeding the terrorist agenda by saying that we're too scared to hold trials --

MR. RATIGAN: Hold on, Glenn.

MR. PATAKI: Can I respond to that, Dylan? Only the -- only the -- only the American conservatives? Then tell me why Obama and Holder are using military tribunals against those who blow up Americans in acts of war overseas?  They're just picking these particular terrorists for trial in New York because they blew up civilians in New York. So what their logic is, "Kill thousands of civilians and you can get a civilian trial; kill one or two overseas, and we're going to use military tribunals."

That makes no sense.

For those wanting to defend the administration, what's the answer to that?  The same thing happened when Rep. Nadler, as part of the same segment, tried to defend the Obama administration's decision to try the 9/11 defendants in New York:

REP. NADLER:  I think that our tradition is that people accused of heinous crimes get trials, and they get trials in the area in which the crime is committed, which is right here. And I think it's exactly the right thing to do. . . .That's the way it ought to be, and we ought to show the world that we adhere to our traditions of justice and that these terrorists are not going to cause us to abandon the law.

MR. PATAKI: ... We are going to use military tribunals. They're saying they're perfectly fine for some terrorists, but these terrorists they're going to try here. What's the justification for that, Jerry?

REP. NADLER: Well, I -- well, I don't think there is any justification.

MR. PATAKI: I don't either.

The administration should have the courage of its convictions and defend jury trials as a linchpin of American justice, which would entail giving them to all Terrorism suspects not captured on any battlefield.  But by refusing to do so -- by exhibiting the very cowardice of which Holder accused Republicans, i.e. denying Terrorism suspects a trial -- the administration has no cogent argument to make in its own defense.  It's just another case of the administration wanting to bask in the rhetorical glory of "the rule of law" while simultaneously trampling on it for petty political convenience.

 

UPDATE:  The blogger Patterico -- who, notably, is a prosectuor himself and thus inclined to be empathetic with prosecutorial goals -- nonetheless compiles additional evidence to criticize Holder's decision as follows:

You can see that what we have is an administration that is choosing where to try the detainees, not based on some principle or neutral protocol (as they claim), but based on where they can win. They’re rigging the game.

And if they lose, they won’t let him go anyway.

This is just further evidence that the KSM trial will be a show trial.

It's worth reading the arguments from a prosecutor about why the administration's conduct is such a breach of basic justice, even as they cynically wrap themselves in the rhetoric of the sanctity of jury trials and the rule of law.

 

UPDATE II:  For a crystal clear refutation of the claim that it's normal to use military commissions for the crimes at issue here, see this comment from the always-enlightening Pow Wow, which is based on this equally enlightening interview by Marcy Wheeler of Lt. Col (and now-Law Professor) David Frakt, highlighting the numerous myths on which the case for military commissions is predicated.

Fear is easy, but untangling the logistics of fear can take time. While the inner workings of a terrorist attack generally remain shrouded in mystery for months or years after the attack takes place, the mass murders in Mumbai by Islamic militant group Lashkar-e-Taiba last November are an exception. Not only did investigators have access to extensive footage of the terrorist operatives carrying out their horrifying tasks in the Taj Mahal and Oberoi hotels and at a crowded train station, not only did they manage to capture and interrogate one of the attackers, but they also tapped into a Lashkar-e-Taiba leader's phone during the attacks, giving them a clear taste of how humans are actively manipulated into committing atrocities in the name of some imagined higher cause.

HBO documentary "Terror in Mumbai" (premieres 8 p.m. Thursday, Nov. 18) cobbles together surveillance footage and video of the interrogation with cellphone audio to present a comprehensive picture of the events that left 170 dead and more than 300 wounded. But we're not left in awe of the precision and strategic cunning of the terrorists' plan as we were in the wake of 9/11. Instead, with every shot of the young men milling around or trying to kick in hotel-room doors, with every coaxing word over the cellphone, what's stunning is that such a haphazard attack could've resulted in such a staggering loss of human life. The Lashkar-e-Taiba leader on the phone hauntingly cajoles the terrorist operatives to set things on fire, to find more people to kill. At some point, one of the terrorists marvels over the phone that the Taj Mahal hotel has computers with "30-inch screens" and that the windows go from the floor to the ceiling. His boss ignores his words, trying to refocus him on more killing.

Meanwhile, captured suspect Ajmal Amir Kasab explains that he was trained for just three months in Pakistan, that his father made the deal because his family needed the money. "Who were you supposed to kill?" the investigator asks. "Just people," Kasab replies.

"Just people" includes a young boy's mother and father. "What harm did we ever do, for them to kill so many people?" the boy asks the cameras. "What do they gain from all this killing?"

And also, where were the police? Armed only with pistols and small guns, we're treated to footage of at least a dozen policemen shuffling around confusedly at the train station, wondering what to do next. The few who try to intercede are shot down immediately. Several calls are made requesting heavily armed backup, but help doesn't arrive for hours. Meanwhile, several police officials, including the chief of the anti-terrorism squad, are killed when the terrorists stop their vehicle on the street. The Taj Mahal hotel is controlled by a few terrorists with grenades and guns, but police make no organized attempt to storm the hotel. One injured victim waited in a hotel restaurant among dead family members for 16 hours before she was rescued.

"Terror in Mumbai" provides a harrowing glimpse of how unprotected most citizens are, even in the face of a seemingly primitive attack. But most of all, the film gives us a front-row view of the soul-crushing spectacle of young men who are easily convinced to murder innocent people. "You're very close to heaven, brother," the Kashar-e-Taiba operative on the phone tells one of his men when it looks like the man will soon die, dozens of hours after the attacks started. "Today's the day you'll be remembered for, brother." 

To my surprise, the ex-jihadis said their rage about Western foreign policy -- which was real, and burning -- emerged only after their identity crises, and as a result of it.  They identified with the story of oppressed Muslims abroad because it seemed to mirror the oppressive disorientation they felt in their own minds. . . .

But once they had made that leap to identify with the Umma – the global Muslim community -- they got angrier the more abusive our foreign policy came. Every one of them said the Bush administration's response to 9/11 -- from Guantanamo to Iraq -- made jihadism seem more like an accurate description of the world. Hadiya Masieh, a tiny female former HT organiser, tells me: "You'd see Bush on the television building torture camps and bombing Muslims and you think -- anything is justified to stop this. What are we meant to do, just stand still and let him cut our throats?"

But the converse was -- they stressed -- also true.  When they saw ordinary Westerners trying to uphold human rights, their jihadism began to stutter. Almost all of them said that they doubted their Islamism when they saw a million non-Muslims march in London to oppose the Iraq War:  "How could we demonise people who obviously opposed aggression against Muslims?" asks Hadiya.

One of the leaders of Britain's movement of ex-Islamists, Maajid Nawaz, recounts how his hardened militarism began when, as a youth, he read "leaflets saying Muslims were being massacred all over the world, from India to Bosnia to Southend."  In 2000, he moved to Egypt and began recruiting students into radicalism.  Listen to what he says about what helped and hindered his efforts:

He started to recruit other students, as he had done so many times before. But it was harder. "Everyone hated the [unelected] government [of Hosni Mubarak], and the US for backing it," he says. But there was an inhibiting sympathy for the victims of 9/11 -- until the Bush administration began to respond with Guantanamo Bay and bombs. "That made it much easier. After that, I could persuade people a lot faster."  

Nawaz was ultimately imprisoned in Egypt and was surrounded by Egyptian prisoners who were being brutally tortured by a government propped up by the U.S. (he was spared only because he was a British citizen).  Consider what began to change Nawaz's views on the rightness of his Islamic extremism:

Maajid's Islamist convictions were about to be challenged from two unexpected directions -- the men who murdered Egyptian President Anwar Sadat, and Amnesty International.

HT [the Islamic group which he had headed] abandoned Maajid as a "fallen soldier" and barely spoke of him or his case. But when his family were finally allowed to see him, they told him he had a new defender. Although they abhorred his political views, Amnesty International said he had a right to free speech and to peacefully express his views, and publicised his case.

"I was just amazed," Maajid says. "We'd always seen Amnesty as the soft power tools of colonialism. So, when Amnesty, despite knowing that we hated them, adopted us, I felt -- maybe these democratic values aren't always hypocritical. Maybe some people take them seriously ... it was the beginning of my serious doubts."  

In other words, the very policies the U.S. has been pursuing in the name of combating Terrorism -- invading, occupying, and bombing Muslim countries; locking them up without trials; torturing them; violating the values we've been preaching to the world -- have been the most potent instruments for fueling Islamic radicalism and terrorism.  By contrast, those who have been continuously accused of being "soft on Terrorism" and even being allied with the Terrorists -- those who opposes our various wars, who demanded and provided basic human rights protections and equal liberties to Muslims, who objected to their own governments' oppressive and belligerent policies -- have done more to diffuse and impede Muslim radicalism than virtually anyone else in the world.

These truths are so self-evident that they shouldn't require journalists like Hari to document.  If we invade, bomb and attack Muslim countries -- and uniquely deny to them the rights we claim are universal (such as the right to be free of torture and imprisonment without trials) -- then far more Muslims are going to wallow in rage and hatred for the West and be willing and eager to return the treatment.  Conversely, seeing Westerners speak out against their countries' attacks on, and oppressive policies towards, Muslims renders far harder to sustain the divisiveness and demonization on which all radicalism feeds.  This is all basic cause and effect, as even the Pentagon's own Task Force concluded all the way back in 2004 in explaining how and why our wars in Iraq and Afghanistan are severely exacerbating the threat of Terrorism.

Despite how obvious and well-documented these truths are, so many American elites continue to ignore them.  Writing in Newsweek this week, Slate's Editor-in-Chief Jacob Weisberg looks at the Fort Hood shootings and various disrupted terrorist plots and concludes that Obama has perhaps been too conciliatory towards Muslims; that "Obama's [so-called] olive-branch strategy" has not made us safer, at least in the short-term; and that "Obama's heritage feeds a broader suspicion that he is too casual about the threat from America's Islamist enemies."  In what fantasy world is Jacob Weisberg living?

Obama is presiding over active wars in three separate Muslim countries -- Iraq, Afghanistan and Pakistan.  All year long, there has been an abundance of video footage of Muslim villages -- including scores of women and children -- being wiped out by American air raids.  Obama has already escalated the war in Afghanistan.  His administration is actively demanding the right to abduct people and imprison them at Bagram with no charges and is actively protecting those who spent the last decade torturing Muslims and disppearing them to secret camps.  Our steadfast alliance with Israel -- which The New York Times' Mark Mazzetti documented this weekend was a prime motivating factor in the militarism and hatred of Khalid Sheikh Mohammed -- has been symbolically altered by Obama but otherwise remains fully in place.  It's true that Obama has sand-papered some of the roughest rhetorical and policy edges of the Bush/Cheney approach -- explicitly barring torture and CIA black sites, trying to close Guantanamo, sounding a far different tone in how he speaks about and to the Muslim world -- but, at least so far, many of the fundamentals remain largely in place, and it's thus unsurprising that Obama's intense international popularity has not yet translated to much of the Muslim world.

Despite all that, people like Jacob Weisberg fret that Obama "has not taken the radical Islamist threat to American security -- at home or in Afghanistan -- seriously enough," and demand that Obama announce to the world that "America does not face a threat from the perversion of faith in general. We face a threat from the perversion of one faith in particular."  Even in the face of mountains of evidence that this sort of heightened aggression and oppression exacerbates the threat of Islamic terrorism, people like Weisberg continue to demand more of it.  And even in the face of the most compelling evidence imaginable that accommodation to the Muslim world and treating Muslims equally and respectfully is the greatest threat to the Islamic extremist, people like Weisberg perpetually worry that we're doing too much of that.  At some point, a rational person has to wonder whether people like Jacob Weisberg -- who endlessly advocate policies that fuel Islamic extremism and intensify tension between the West and the Muslim world -- aren't desirous of exactly that outcome.  After decades of pursuing this blatantly counter-productive approach, what else could explain such moral and intellectual blindness?

* * * * * 

I'll be on MSNBC's Dylan Ratigan show this morning at 9:00 a.m. EST discussing the 9/11 trials.

 

UPDATE:  The MSNBC segment I did this morning included George Pataki arguing against 9/11 trials, and Rep. Jerry Nadler who, along with me, argued in their favor.  There were several points highlighted by this discussion which I'll write about shortly, once MSNBC makes the video available, but the fear Pataki was spewing about holding real trials in New York, combined with his insistence that we exempt accused Muslim terrorists from our standard institutions of justice, is exactly the fuel that drives Islamic radicals, as documented by Hari.  It was almost as though Pataki was intent on providing a textbook example of everything I wrote here this morning.

 

UPDATE II:  The MSNBC segment I did this morning with Pataki and Nadler is here.  Note how little faith people like George Pataki have in America and its institutions:  he doesn't trust our judiciary to safeguard the nation's secrets; he doesn't trust our courts to mete out justice to accused Terrorists; and he doesn't trust the NYPD or the FBI to keep residents safe if we follow the example of virtually every other civilized democracy by providing trials to accused Terrorists in the place where they did their damage.

With regard to Hari's explanation of what fuels Islamic radicalism, note how completely his explanation tracks what The New York Times' David Rohde told us about what motivated his Taliban captors:

For the next several nights, a stream of Haqqani commanders overflowing with hatred for the United States and Israel visited us, unleashing blistering critiques that would continue throughout our captivity.

Some of their comments were factual. They said large numbers of civilians had been killed in Afghanistan, Iraq and the Palestinian territories in aerial bombings. Muslim prisoners had been physically abused and sexually humiliated in Iraq. Scores of men had been detained in Cuba and Afghanistan for up to seven years without charges.

To Americans, these episodes were aberrations. To my captors, they were proof that the United States was a hypocritical and duplicitous power that flouted international law.

When I told them I was an innocent civilian who should be released, they responded that the United States had held and tortured Muslims in secret detention centers for years. Commanders said they themselves had been imprisoned, their families ignorant of their fate. Why, they asked, should they treat me differently?

Aren't we, by now, faced with enough conclusive evidence proving this causal connection to no longer be able to ignore it?

Reuters has video.

The violence also has a local political significance. In the February 2008 parliamentary elections, the Awami National Party, a secular Pashtun party, became very popular and won the province. In the run-up to that victory, in January, 2008, hard line devotees of political Islam set off a bomb at an ANP rally in Charsadda that killed 20 persons. From 2003 until 2008, the North-West Frontier Province was ruled by the United Action Council (Urdu acronym MMA), a coalition of 6 small fundamentalist parties that included at least one party close to the Taliban, despite its willingness to sit on parliament under Gen. Pervez Musharraf.

The fundamentalists resent having been displaced by the secular Pashtun sub-nationalist ANP, and this bombing of Charsadda is probably a further piece of thuggery aimed at punishing the Pashtuns for voting secular. Asfandiyar Wali Khan, the president of the Awami National Party, and other high provincial officials condemned the attack. Wali Khan said, "These barbaric elements have no religion and faith. The government is determined to eliminate terrorism and our struggle will continue."

Such violence is often read in the West as a confirmation of the bigoted view that Muslims in general are unusually violent. Even in Pakistan, it is read as a sign of alleged Pashtun tendencies to violence and barbarism. In fact, a bombing like that in Charsadda is part of a low-intensity, drawn-out civil war among the Pashtuns themselves, with a small rural radical fringe targetting urban, ideologically moderate groups and institutions.

In fact, the Awami National Party has its origins in Pashtun support for Mahatma Gandhi's nonviolent campaign for independence from the British; that is, it began as a pacifist party. The idea of pacifist Pashtuns is so preposterous in today's atmosphere of anti-Pashtun prejudice that it is typically missing from journalistic accounts of politics in the NWFP.

Meanwhile, the fighting in South Waziristan continues, with Pakistan claiming to have killed 12 militants on Tuesday.

Secretary of State Hillary Clinton implausibly maintained that Abdullah's withdrawal will not affect the legitimacy of the Afghanistan presidential election.

Since President Obama had put off making a decision on his Afghanistan policy until he saw the results of the planned November 7 runoff, Abdullah's decision puts Washington in an awkward position. Abdullah is said to be seeking to postpone the runoff until spring, 2010, which would much extend the period of instability. In contrast, Clinton seems to be crowning Karzai the winner by virtue of Abdullah's withdrawal. But the Karzai presidency has been badly if not unalterably wounded by the ballot fraud practiced in August, and of which the retention of the same electoral commission would guarantee a repetition.

And here is what I take away from all this. The debate in Washington has been over a counter-insurgency campaign versus a limited counter-terrorism campaign. Counter-insurgency implies a certain amount of state-building. Counter-terrorism implies that state-building is impossible or very, very difficult. Clinton backs counter-insurgency, while Vice President Joe Biden supports counter-terrorism.

The reason Clinton is so eager to insist that Karzai's election is legitimate despite its obvious illegitimacy is that Abdullah's withdrawal puts paid to the idea that there is a plausible Afghan government partner for US counter-insurgency. There is not.

Biden may or may not win the argument in Washington. But there is now no doubt that he should win that argument. Sending another 40,000 troops into Afghanistan to shore up a Karzai government that tried to steal the election and demonstrated so little accountability that the officials who winked at the fraud are still on the electoral commission-- that is an absurd proposition.

Al-Jazeera English has video:

Eric Garris points out that Afghan woman Member of Parliament Malalai Joya was interrupted on the US CNN when she referred to the US presence in Afghanistan as an occupation, but when she went on CNN International she was treated respectfully and allowed to speak. Actually, that the US and NATO are militarily occupying Afghanistan is recognized by the UN security council and is a simple fact of international law.