National Security 101 – Law as a weapon in the war on terror

Someday you may find yourself in conversation with a citizen from another country, who may ask about the “legal proceedings” involving three alleged 9/11 terrorists, including Khalid Sheik Mohammad.  This proceeding is being conducted by our country.  It is part of the war on terror.  It is intended to keep our country safe, to protect our country’s traditional values (and citizens) from attack by terrorists.

Fact one:  Location, location, location.  Location is important.  The trial is being held on a Navy base on Guanatanamo Bay, Cuba.  There is some irony in this fact.  

An obvious question is why hold the cases there?  I am no expert on the subject, but I believe the proceedings are being held there out of concern, out of a fear that if the cases were held on U.S. soil, United States laws, including the especially the Constitution, would create problems for the government, for our government.  Well, I suppose all law creates problems of one sort or another for someone.  Due process is a hassle.  It’s expensive.  It’s time consuming.  Worst of all, it may make the right result difficult or even impossible to obtain.

We have every right – indeed the government has an obligation – to defend against terrorism in whatever way is necessary under the circumstances.  

So with three alleged terrorists in custody is it necessary to hold the proceedings in Cuba in order to avoid “complications” that might be presented by U.S. law and the Constitution?   By the time charges are brought, harm has been done.  Defense is no longer the point, except in so far as punishment is a deterrent. Let’s assume punishment is due.  Let’s assume the death penalty is fully warranted. This is all for the sake of argument only.  Then the question is about deterrence. Or about revenge.   On the question of deterrence will it matter that the mechanism was a show trial at which “evidence” obtained by torture was used?  Will the rest of the world agree that “they had it coming.”  Or will some, perhaps a great many people around the world add the US to the list of countries for whom death to the accused is right and just no question about it, no questions asked?

There is some irony in fearing terrorists on one hand (perfectly understandable) and our laws on the other.  The solution, one solution, is to re-define what is lawful and to attempt to avoid the law that is so difficult to redefine, the Constitution.  

The Unitary theory of executive power, championed by the Vice President, embraced by the President and acquiesced in by Congress, has re-defined much of US law to mean whatever the President says it means.  Holding the proceedings in Cuba is a way to avoid that part of US law that neither the president nor the congress can re-define without much fuss or political risk.  

While that may be the rationale behind holding the proceedings on Guantanamo Bay, it is unlikely that rationale will be persuasive to those who will ask if holding a “show trial” on Guantanamo is consistent with fundamental values of fairness, such as due process.  In the court of public opinion, it will be impossible to keep the Constitution – or the universal notions of fundamental fairness – out of Guantanamo Bay.

A show trial is a show trial.  Who would have thought that the US would be responsible for a show trial in Cuba?  Then again, who had any reason to anticipate that terrorists would hijack commercial airliners and use them as weapons of mass destruction?