One of the big political stories of this past week is the possibility that the Obama administration might change course on trying alleged 9/11 mastermind Khalid Sheik Mohammed in a military tribunal instead of in a civilian trial. If you look at this case in isolation, this move might make sense: here's a guy who planned and executed an attack that resulted in battlefield-scale casualties, and did so from a foreign country with which we subsequently went to war in response to that attack. Sounds like a military act, not a civilian criminal act, right? But I would argue that "in isolation" is precisely not how we should look at this case.
A government cannot devise an entirely new system and standard of justice on a case-by-case basis and retain any claim to a rule of law. The question is therefore not, "How shall we try Khalid Sheik Mohammed?" The question is "How shall we try all people accused of crimes of terrorism?" Is terrorism a crime like all others, to be tried according to the standards of justice that hold for all alleged crimes -- or is it in a separate legal category, to which very different standards apply?
The trouble with the latter approach -- with applying different legal standards to terrorism cases than we do to other cases -- comes down to the nature of the alleged crimes committed. Terrorism differs from "conventional" murder and property destruction in that it aims not only to accomplish those acts themselves but furthermore to leverage those acts to achieve a more profound psychological impact on a whole community. That is, it differs from conventional crimes with respect to the motive of the perpetrators and with respect to the impact of the crime on the victims' community. These things are not material facts of the case -- they are not preconditions of the trial; they are things that can only be demonstrated at trial. Therefore, to use them as a basis for a separate criminal process is precisely backwards.
Consider the difference between first-degree murder (with premeditation) and second-degree murder (without). These crimes do not differ in their outcomes -- someone is dead in either case. They differ with respect to the intention of the perpetrator: if someone kills someone else meticulously, in cold blood, we deem it a more serious offense than if the murder is one of passion. But the existence of premeditation is for the jury to decide, not the state. The police collect evidence; the prosecution makes its case. The defense makes its case. The jury decides whether the standard of proof has been met.
Imagine if instead we tried murder cases like we do terrorism cases: if you are accused of second-degree murder, you will face a normal procedure. You will have rights to a speedy jury trial, to face your accusers and the evidence against you, and to a verdict of innocence unless your guilt is proven beyond a reasonable doubt. But if you are accused of first-degree murder, at the prosecutor's discretion, you will have none of these rights. You can be detained indefinitely. You can be tried in secret, without a jury. And you can be convicted on the basis of secret evidence to which you have no opportunity to respond. The government need only point a finger and say, "I accuse you," and you can be thrown into a dark hole from which you may or may not ever emerge. Would we call this justice?
It is a founding legal principle of the United States that those accused of crimes cannot be stripped of their rights on the say-so of government officials. We cannot abandon this principle, even in the face of the most heinous crimes we can imagine, without losing the very virtue and character of our country. There will always be those fearful and uncreative people who claim that the problems of today are so unlike those of yesterday that we must forget our history and discard all precedent. We must not hold these self-styled great men accountable according to long-established standards; instead we must for our own good allow them to have their way with us, trusting implicitly and indefinitely that they will one day restore our rights to us. I say: nonsense.
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