It's Not as Bad as The Good Professor Thinks

I don't normally disagree with David Cole, the constitutional law professor who has distinguished himself over the last five years with his analysis and insight into the legal war on terrorism. But his essay today about whether the "New Gang of 14" terror masterminds can be tried at Guantanamo Bay is a little too pessimistic for me.

Cole argues: "It seems highly unlikely that these men--who include Khalid Sheikh Mohammed, the alleged mastermind of 9/11, as well as several other high-level al-Qaida leaders--can actually be brought to justice, precisely because of the way the CIA treated them. Here, as in so many of its other national security initiatives, the Bush strategy has backfired, leaving the government fatally hamstrung in holding real terrorists accountable. Just as in Iraq, the administration violated basic principles of the rule of law in the name of "preventing terrorism," and we are all now paying the consequences." I disagree (about the bringing the men to justice part, not about anything else Cole says).

Regardless of what rules the White House, Congress and the Supreme Court agree upon to try the detainees, it is clear that the government would be able to prove at least basic cases against the New Gang of 14 without having to resort exclusively upon any confessions the men might have made through torture or the "alternative procedures" the President mentioned the other day. There is physical evidence linking the men to 9/11. There is testimony from other witnesses who were not tortured. Remember-- we knew what role Ramzi Binalshibh and Khalid Sheik Mohammed played in 9/11 before they were captured. That's why it was such a big deal when they were captured!

Cole is right to take to task the White House for the way it has handled the issue of the detainees and the law. He is right to identify the moral and ethical problems (not to mention the legal ones) the government created for itself now with its arrogant posture toward the other branches of government. But in spite of all that, there is a genuine and legitimate case that can be made against the New Gang of 14, one that likely will survive even the most generous tribunal rules our government come up with. This time, the good professor's got it wrong.

Have a safe and fun weekend.

By Andrew Cohen |  September 8, 2006; 4:30 PM ET
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I think you miss the point: putting them on trial will open the door to testimony and filings regarding their treatment in custody. That would be politically dangerous, and it will put considerable doubt in the minds of the judges about the admissibility and reliability of evidence, about the claims of the government, etc. So far the administration has avoided admitting the specifics of their techniques, largely to avoid shocking details the voters will not approve of. Additionally, a failure to convict in a real trial would be harmful to the administration, because it would be government illegality that tainted the evidence.

The administration will either get their show trials or not hold trials at all, until ordered to do so. The move to Cuba is nothing but a political stunt.

Posted by: Anonymous | September 13, 2006 02:05 AM

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