According to former Director of Central Intelligence George Tenet, when 9/11 mastermind Khalid Sheikh Mohammed was apprehended in Rawalpindi, Pakistan, in March 2003, his first response to his captors was to sneer "I'll talk to you guys after I get to New York and see my lawyer."
No doubt he thought he had good reason to anticipate that outcome. A committed jihadist enemy of America, KSM had taken active part in plots over the course of more than a decade, and eagerly watched many more, all of which had elicited from the American government little more than criminal investigations and, in rare cases, criminal trials. Prior masterminds--such as the notorious Blind Sheikh--not only did not receive the death penalty (for trying to blow up the World Trade Center), but even were able to communicate from prison with their followers through their American-born attorneys.
So a confident KSM thought he understood us. But he was right no longer. Largely through his own efforts, he and his band had managed to change American opinion and the American approach to fighting terror. He eventually got his lawyer, but not before being questioned and revealing valuable information that Tenet and other officials insist stopped other attacks, aided in the capture of other terrorists, and helped immeasurably in deepening our understanding of the al-Qaeda network.
Since then the KSM story has been almost solely about the methods used to interrogate him. Some loudly insist that it was torture--no question about it!--while others point out the many reasons why that analysis is too simplistic--or simply wrong.
Now the second half of KSM's taunt to his captors is coming true. He is off to New York, where he will have endless opportunities to converse with his many lawyers. They will work hard to ensure that his trial is all about what he "endured" at the hands of the U.S. government, and not at all about what he inflicted on the American people. They will strive to put in the dock George W. Bush, Dick Cheney, George Tenet, John Yoo, the CIA, and the United States government and the American people.
The odds are of course against KSM winning an acquittal, though one never knows. But that is not the point. The point is that our civilian justice system is designed to do specific things, and to try non-citizen enemy combatants who make war on this country and slaughter innocent civilians is not one of them. Now that system will be used for what will likely be a months-long propaganda circus that will make a mockery of our principles and broadcast a message of weakness and pusillanimity to terrorists, their fellow travelers, and intellectual mentors around the world. Even if the U.S. government ends up winning the legal case, we all lose. And the reversion to a federal court trial will, along with other actions of the current administration, conspire to lull the American public into the view that we're not really at war.
Imagine what the next terrorist, planning the next plot, is thinking as he sits working on the wiring of his bomb (or worse): "If they catch me, I'll talk to them after I get to New York and see my lawyer." Except in his case, unlike in KSM's, it will be true from day one.
Michael Anton is a writer in New York who served in national security positions in the Bush administration.
