your source for all things dan

Of all the crazy thing that people are saying about the planned civilian trial of Khalid Sheikh Mohammed (KSM), the craziest is the idea that the defendant is not entitled to constitutional rights because he is not a U.S. citizen. This is complete balderdash. If you remove the strong emotion and anger associated with 9/11 for just a moment and think about the factors that went in to this decision, it becomes clear that a civilian trial is the most reasonable approach. Relevant factors include the actual text of the U.S. Constitution with regards to criminal law and legal precedent with regards to the rights of non-citizens.

A quick review of the actual text confirms that our judicial system does not differentiate between trials for non-citizen criminals and those of U.S.-citizen criminals. Thus, the furor that has been raised because KSM is enjoying the same rights as a U.S. citizen indicted for an equivalent crime is misplaced. The rights in question are covered under the Fifth and Sixth Amendments, which read as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Let's focus on the first line of each amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

Right off the bat, we can see that this law pertains to any "person", not any "citizen", "native", or other designation. Interpreting "person" to mean anything more specific in order to arrive at a predetermined conclusion would require judicial activism, which is anathema to those in vehement opposition to the trial. That's one downside of strict constructionism - it doesn't leave you much wiggle room when you're not getting your way.

Now, there is also a clause that allows the government to avoid a traditional trial in the case of war crimes. This is a popular citation by those looking for a way to shuttle the terrorists off to a military tribunal. There are a number of problems with this approach.

First, defining 9/11 as a war crime is questionable at best given how we have reacted to previous instances of domestic terrorism. I do not recall anyone declaring the 1995 Oklahoma City bombing to be a war crime, nor the 1993 World Trade Center bombing. In both cases, a high-profile target in a high-density area was attacked by extremists because of some perceived injustice by the U.S. government, and yet both sets of suspects were tried, convicted, and sentenced by civilian courts.

Second, despite their personal declarations of war against our government, the fact is that all of the aforementioned terrorists acted on U.S. soil, against U.S. civilians, without the support of any sovereign nation. Quite simply, they are thugs who managed to commit a crime that was an order of magnitude more destructive (both physically and emotionally) than other thugs. I do not know of any domestic law that attempts to clarify how violent or unique a crime must be in order to be classified as a war crime, and all of the international laws relate to battlefield scenarios that are clearly not applicable. Regardless, I suspect that such a law would be easily circumvented by the unlimited creativity of those who wish to attack us.

But just for the sake of argument, let's say it were possible to have a domestic war crimes law. Where would you draw the line between regular crime and war crime when outside a military theater? How many people do you have to kill? How much money must you waste? Does emotional scarring matter? What about relativity? Oklahoma City had far fewer deaths and injuries than 9/11, but I imagine it was equally traumatic given that the entire metropolitan area is just one-eighth the size of Manhattan. Similarly, assassinating the President only takes the life of one person, but it would be more devastating to the nation as a whole than the 1993 WTC bombing, which killed six civilians and caused non-fatal structural damage to one building.

Without answering these questions, we cannot know if KSM is indeed a war criminal or if we are gerrymandering the rule of law to fit his actions and our desired results.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation;

To those who think that prosecuting KSM in Manhattan is an irresponsible decision by politicians looking to ignite a media circus, I present the procedural requirements of the Sixth Amendment. If the Fifth Amendment requires us to have a civilian trial, the Sixth Amendment requires that we have it in the same county where the crime was committed. Being that Manhattan is an area with an extremely high population density, such counties are rather small, and so it happens that the court house where KSM must be tried is in close geographic proximity to the former WTC. If KSM had attacked a tall building in Wichita, then perhaps the court house and the site of the attack would be farther apart and the whole situation less controversial, but that is not the case. If you attack innocent people in the financial district of downtown Manhattan, you will plead your case in the same[1].

So, taking the time to read the text of the laws in question has proved helpful. For me this is sufficient, but let's continue with the second factor (legal precedent) to seal the deal.

To determine the rights of non-citizens as it relates to criminal acts and trials, we should make a comparison with the other rights we give to non-citizens. A cursory review of the Bill of Rights and simple reflection on everyday happenings reveals that foreigners can come to our country and immediately enjoy all of the rights prescribed therein. The fact that you are here on a tourist visa (or whatever) does not mean that a police officer can arrest you for saying derogatory things about Michelle Obama, Lost, the Pittsburgh Steelers, or anything else that Americans love. You are also not forced to select or disavow any religion. No one will try to quarter troops in your apartment. The government does not have the authority to buy houses owned by non-citizens for pennies-on-the-dollar and use them for public works projects.

And, as painful as it may be, they will be tried by an impartial jury if they are suspected of a crime. There is nothing in the Constitution or any court ruling that provides an exception for foreigners. Illegal aliens may be deported because it's more efficient than trying and jailing them, but anyone who is here legally will have due process. Even those pieces of the Alien and Sedition Acts that still remain in place only authorizes a war-time Executive to arrest and deport non-citizens - it doesn't allow continued detainment and punishment. Since we clearly don't want to let KSM go free to whatever country would take him, we're obliged to indict him and put him on trial. Those are the rules.

With all that said, sometimes rules become obsolete and they must be updated to handle scenarios that the original authors could have not imagined, such as the need to wage war against an organization that has no property, borders, national economy, or international obligations. This may be the most frustrating news for those opposed to the KSM trial: not only is our Constiution incomplete on the subject of modern warfare and terrorism, but there is no one to blame for it. Rather than lash out at politicians for adhering to the law as it's written today, opponents should instead focus their energy on changing the law through the means provided by its authors. At least then we would be having an intellectually useful debate about what the law should be as opposed to a pointless debate about what people assume the law says.

[1] And from KSM's perspective, there's really nowhere he could go to escape his reputation and improve his odds of a fair trial. Everyone hates him, and New York jurors will only be marginally more prejudiced than those in Nebraska or Oregon.

Labels: culture, law, narcissism