The Trial

The upcoming trial of Khalid Sheikh Mohammad will be less than flattering for this nation. But what is far less flattering than this circus-to-be is the fact that it took this long to get to this day and that there are many among us who consider following the rule of law to be a sign of weakness.

These people, mostly Republicans of course, are outraged by the idea that such a bad man would be given a trial, with the implicit assumption being that only good people should be tried, which in turn raises the questions of why good people would be on trial and what we should do with the bad people if not try them.

The idea that a murderer be given a trial seems scandalous to these critics, far more scandalous of course than kidnapping, torture, and detention without charge, trial, or contact with families or lawyers.

There is only one rational reason why KSM should be denied a civil trial. If he were a soldier of a foreign force. The very critics of the trial are precisely the same people who insist that KSM is not a "lawful combatant". He is NOT a soldier, they say.

I am willing to buy this. He's not a soldier. He didn't wear a uniform. (None of our enemies have worn uniforms since World War II...might be time to update the rules for the first time since TV was invented)

But if KSM is not a soldier, then he must be a civilian. And if 9/11 was not a legitimate act of war, then it must have been homicide. And civilians who commit homicides are given trials. Period.

Those who insist that KSM is NOT a soldier who was captured during lawful combat must acknowledge the logical conclusion of their argument; if KSM is not a soldier, he is a civilian.

To escape this clear-as-day contradiction, these people invented a third category: unlawful combatant. These are people who commit violence against this nation on behalf of a hostile foreign movement, but they are not classified as soldiers because they don't follow the "rules" of war (as we wrote them).

But neither are they civilians. Why? Well, because....they're....evil. And evil they are. But was Ted Bundy not evil? Was Charles Manson not evil? Was Timothy McVeigh not evil? Was Ramzi Yousef not evil?

Those are just a few people, some Americans, some not, who have blown up buildings and/or murdered dozens or hundreds of Americans. Yet all these men were given civil trials. They were convicted of homicide. They were sent to prison. And we threw away the key. Why would it be considered scandalous to deal with KSM this way?

Because the critics fear what the trial will tell. Specifically, it will spell out the folly and the danger of the Bush policy, which classified people captured in the war on Terror as neither soldiers nor civilians.

Americans involved in the war on Terror, of course, are all seen as either innocent civilians or equally innocent soldiers. So an American soldier in Iraq is more "legitimate", more "lawful" than the Iraqi fighting to expel foreign invasion of his country.

There is no 3rd category for us. But our enemies? They're ALL 3rd category. And isn't that convenient.

This trial will show us the utter moral, legal, and logical bankruptcy of Bush's position, which held that anyone who would dare raise arms against us has automatically surrendered their status as a human being. And since only human beings can have inalienable rights, that solved that problem.

Instead of being brought before a military commission (as a soldier would) or before a civil court (as a civilian would), these 3rd category people were found to have absolutely NO rights, which meant in practice that they could be kidnapped from any nation in the world, tortured, held without charge or trial, denied contact with lawyers or families, and held until the end of time or until America was "safe" again, whichever came first.

And who can say that this approach has not damaged us? It is perhaps the most vulgar iteration of American exceptionalism; the belief that the rules don't apply to us. This belief in practice gives us programs such as those implemented by Bush.

Torture is illegal and waterboarding is torture, but it's not torture when Americans do it because....they're Americans. And Americans don't torture. And so forth.

Now the world will see this sordid affair for what it was. KSM could have been tried by a panel of military judges or by a civilian judge years ago. That wasn't done. Now that it is being done, we have to explain to the world why evidence obtained under torture is now admissible in a court of law, and why murdering Americans is the greatest sin under heaven, so much so that a millenium of legal precedent evaporates in its face.