When Eric Met Jane
Above the Fold
“I think the US does itself a favor by showing the world who these people really are in a legal process whose legitimacy is beyond question.”
–Jane Mayer, in a live chat today at NewYorker.com
The most important and the most depressing piece of the week is Jane Mayer’s brilliant illumination in The New Yorker of Attorney General Eric Holder’s decision to try Khalid Shaikh Mohammed and four other terrorists in Federal Court in Manhattan.
Thanks to the abject cowardice of Michael Bloomberg, Chuck Schumer, and Lindsay Graham–and just about every Republican in Washington–Holder has now been forced to rescind that decision. Unlike Bloomberg and Schumer, at least the Republicans weren’t basing their position on the idea that the views of the lower-Manhattan real estate establishment should always trump the United States constitution.
Mayer makes it abundantly clear why this is a terrible outcome for moral, practical and constitutional reasons. As she said in her live chat at NewYorker.com today,
Fear was really whipped up, and with it, the estimated costs of the trial. The whole thing required some level-headed counterpoint, but, for some reason, there was very little. As a result, the business community in lower Manhattan, and some residents turned on the plan. The irony is that there is another Al Qaeda trial taking place there as we speak - and no one’s even paying any attention. Clearly, the atmospherics were disproportionate to the threat, but, once scared, it’s hard to calm people.
Here are the relevant facts from Mayer’s piece, most of which, of course, have played no part at all in the arguments of those opposed to trying the terrorists in Federal Court:
* The Bush Administration prosecuted many more terror suspects as criminals than as enemy combatants.
* According to statistics compiled by New York University’s Center on Law and Security, since 2001 the criminal courts have convicted some hundred and fifty suspects on terrorism charges.
* Only three detainees—all of whom were apprehended abroad—were convicted in military commissions at Guantánamo.
* The makeshift military-commission system set up by Bush to handle terrorism cases never tried a murder case, let alone one as complex, or notorious, as that of Khalid Sheikh Mohammed, who will face the death penalty for the murder of nearly three thousand people.
* The Bush Administration obtained life sentences in the criminal courts for two terror suspects arrested inside the U.S.: Richard Reid, the so-called shoe bomber, and Zacarias Moussaoui, who was planning a second wave of plane attacks. (Reid was read his Miranda rights four times.)
* There is no evidence suggesting that military commissions would be tougher on suspected terrorists than criminal courts. Of the three cases adjudicated at Guantánamo, one defendant received a life sentence after boycotting his own trial; another served only six months, in addition to the time he had already served at the detention camp; the third struck a plea bargain and received just nine months.
* The latter two defendants—Salim Hamdan, a Yemeni who worked as Osama bin Laden’s driver, and David Hicks, an Australian who attended an Al Qaeda training camp—are now at liberty in their home countries, having been released while Bush was still in office.
* The main reason that Rahm Emmanuel (and the rest of the White House political apparatus) opposed the trial of terrorists in Federal Court in Manhattan was because Rahm wanted to make Lindsay Graham happy.
* Graham actually favors closing Guantánamo–but he told Mayer he would keep it open, rather than to allow “these guys civilian trials.”
* Behind Graham’s opposition was an insistence that Obama not treat military commissions as second-class justice. But given the commissions’ erratic track record, the argument seems dubious.
* The trouble is, when the Obama administration decided to keep the commissions going to try some terrorists, while sending others to Federal Court, it put itself in an impossible bind–because Obama had forfeited the option of openly criticizing the commissions.
* David Cole, a law professor at Georgetown University, said, “They can’t say military commissions are less legitimate, because they’re still using them. But if they tried K.S.M. in a military commission, they’d lose any chance of having a conviction seen as legitimate by the rest of the world.”
*Holder assigned eight experienced criminal prosecutors from the Southern District of New York and the Eastern District of Virginia to build the best criminal case they could against Mohammed and his co-conspirators. The prosecutors gathered fresh evidence from around the globe, rendering the military’s case comparatively weak.
* Neil MacBride, the U.S. Attorney who represents Virginia’s Eastern District, participated in the process, and said, “The prosecutors came together, and produced hundreds of pages of analysis that was granular, and evidence-specific.”
* Many countries–including France, Germany and Great Britain–which had refused to coöperate with military commissions at Guantánamo, were much more willing to provide evidence and witnesses for court prosecutions.
* Last May, Obama declared that the Bush Administration’s legal approach had created “a mess.” Another source put it more bluntly to the New Yorker writer: “We were buried in an avalanche of shit.”
Despite the determination of Maine Senator Susan Collins and so many others to humiliate themselves by repeating their idiotic criticisms of the way the Obama administration has handled the questioning of the Christmas bomber–“wrong, wrong, wrong, and wrong again,” as Rachel Maddow characterized the Maine Senator’s remarks–the fact is the civilian system almost certainly elicited more information from him than any military torturer could have.
As the Justice Department revealed a couple of weeks ago, Umar Farouk Abdulmutallab is now coöperating with the F.B.I. A Justice official pointed out to Mayer, “He has an incentive to talk in the criminal-justice system, which the other system doesn’t offer.’ The key to gaining Abdulmutallab’s coöperation was the F.B.I.’s ability to enlist his family in getting him to talk.”
That’s the kind of common sense observation which almost never makes it into the debate about what is actually most effective: friendly interrogation, or violent torture.
Holder asked Mayer, “Would that father have gone to American authorities if he knew his son might be whisked away to a black site and subjected to enhanced interrogation techniques? You are much more likely to get people coöperating with us if their belief is that we are acting in a way that is consistent with American values.”
Which brings us to the essential fallacy in all of the arguments in favor of torture from Dick Cheney and his loud-mouthed camp followers: there is no evidence that torture is more likely to produce actionable intelligence than the techniques which are actually allowed by the United States constitution–and the anti-torture treaties which are supposed to bind us to legal behavior.
During Mayer’s appearance this morning on Joe Scarborough launched into one of his typically mindless rants about how the Bush administration was much more interested in obtaining information that would prevent another attack on America than it was in trying terrorists in civilian courts.
“It’s just a myth that the military is like Jack Bauer,” Mayer retorted.
Then Scarborough claimed that we couldn’t know what the CIA had learned through torture, because much of it remained classified.
Mayer replied that Senator Jay Rockefeller had read everything in the CIA’s files, and he had told her that the CIA actually got nothing important through torture. When Scarborough dismissed Rockefeller as a partisan source, Mayer responded with the coup de grace:
“What does FBI Director Robert Mueller III say was gained through these techniques?” Mayer asked.
The answer, of course, is nothing–something which even The New York Times finally managed to report, after FCP repeatedly berated it for ignoring the FBI director’s view that no information was obtained through torture which prevented any new attacks on the US.
How did Scarborough respond to Mayer when she reported Mueller’s position?
The TV man changed the subject.