John McQuaid

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There’s no question that the decision by Attorney General Eric Holder to put Khalid Sheikh Mohammed and four other detainees on trial in New York City for the 9/11 attacks is both audacious and risky. That may explain the ambivalent reactions to it across the political spectrum. I don’t know what to make of it myself – it could certainly turn out to be a trifecta: a legal/political/moral disaster. But it also might work: as in, a trial conducted, evidence aired, a defense presented, and the defendants presumably convicted and the legal system vindicated, or at least still in one piece.

The reaction to the Holder decision on the right has been particularly disjointed. Some argue it’s a reasonable choice. But in some corners it’s causing a kind of rhetorical-logical meltdown. Here’s what Dick Cheney said earlier this week in a radio interview:

I can’t for the life of me figure out what Holder’s intent here is in having Khalid Sheikh Mohammad tried in civilian court other than to have some kind of show trial. They’ll simply use it as a platform to argue their case – they don’t have a defense to speak of – it’ll be a place for them to stand up and spread the terrible ideology that they adhere to.

These claims, echoed by Charles Krauthammer and other neoconservatives, scramble history, the law, and current political realities. The term “show trial” has a specific historical meaning: a staged proceeding in which innocent victims of the state are made examples of. The most famous examples are Moscow trials of the 1930s, in which dozens of Stalin’s suspected political enemies “confessed” to made-up crimes against the Soviet Union. Most were tortured and/or threatened. Many were ultimately executed.

It’s unusual for former cold warriors to sling this term around cavalierly, so I’m sincerely trying to understand the historical reference here. Is Cheney saying that a trial would be legally invalid, in part because U.S. government tortured KSM? Krauthammer makes a vaguely parallel argument – that because Holder considers a conviction a foregone conclusion, the trial itself would be a farce. But that’s sophistry – Holder is the nation’s chief prosecutor, not a judge who must maintain impartiality: of course he is going for a conviction. In any case, it’s incoherent to argue that the U.S. is applying an inadequate “law enforcement” approach to terrorism while also claiming it’s staging kangaroo courts.

Cheney and Krauthammer also argue that it’s KSM’s show trial, not ours: that he will seize the spotlight for a propaganda bonanza. (This strategy apparently never occurred to Stalin’s victims.) This seems overblown. A federal terrorism trial is by definition a highly circumscribed affair: no TV cameras or recording devices in the courtroom, tight rules of evidence, few opportunities for grandstanding by lawyers, let alone defendants. Of course, KSM could conceivably fire his lawyers and make propagandistic statements at some point, as Zacarias Moussaoui did. That would be unfortunate, yes – but intolerable?

I’d argue that despite the risks, a trial is basically a conservative act, the culmination of a process of accounting for the acts of 9/11 that has remained frustratingly open-ended. A successful prosecution would show we can absorb a terrible blow with our institutions intact and working. (It’s this sense of continuity and normalcy, of course, that Cheney and Krauthammer disdain.)

There’s another issue here, playing out almost subconsciously. Cheney must be worried about being put on trial himself someday for war crimes, among them the torture of detainees such as the 9/11 defendants. If he is, he’ll almost certainly denounce that as a show trial too.