Quantum of Lawless

The critics of the KSM trial can’t ask for more law and less law at the same time.

To hear the critics of the decision to try Khalid Sheikh Mohammed and some of his 9/11 confederates in open court tell it, the central problem with federal criminal law is that there just isn’t enough of it. And so we hear that the KSM prosecution will degenerate into a “circus” and a “show trial,” as if hundreds of terrorists have not already been tried and convicted in U.S. civilian courts, including the perpetrators of the1993 World Trade Center and 1998 African embassy attacks.

We hear of the dire security risks of allowing classified information to pour forth unchecked from federal courthouses, as though there are no judicial mechanisms to safeguard such information. We hear—most recently from former Vice President Dick Cheney—how perilous it will be to allow these men to spew propaganda at their trials, as if judges lack the legal power to silence an unruly defendant. We hear that our prisons cannot even contain these men, as though our prisons don’t already hold precisely such men. And we hear about unprincipled defense attorneys and legal loopholes from critics who would have you believe that no terrorist has ever been tried and convicted in America, because the entire criminal justice system is as fragile and tenuous as a newborn calf.

Please. Such complaints would be far more persuasive if the very same people criticizing the prospect of New York terror trials for the 9/11 conspirators had not themselves rooted the original legal framework for the “war on terror” in the contention that there was actually too much law in America, not too little. In the wake of 9/11, Bush lawyers claimed to have been so choked and oppressed by a web of vague, complicated, and conflicting new laws criminalizing warfare that they could barely move. Indeed, former Bush lawyer John Yoo, now facing a lawsuit for his role in crafting the system of detainee abuse, has written that it’s this mass of laws and lawsuits that threaten to make America less safe. Yoo has warned that the current culture of “lawfare” will result in “a government that will avoid any and all risks, shun making any move that is not an exact repetition of locked-in procedure of 20th-century vintage, and keep plodding along the same path regardless of contemporary circumstances.”

To be clear, then, evidently it was too much law that got us into the war on terror, and yet there’s too little law to get us out of it. Apparently, one cannot operate within a legal framework in wartime because the laws are too constraining and vague. Yet using an unambiguous criminal justice system to try the 9/11 terrorists in peacetime is dangerous because the system is untested and untrustworthy. Any way you slice it, the conclusion is inescapable: The real danger facing America is the law. It’s always going to be either too outdated or too untested; it’s inevitably characterized as too ambiguous or too rigid; too forward-facing or too past-focused. The legal system is too hard on good patriotic Americans and too soft on our sworn enemies.

This brings us to the much-awaited report from the Justice Department’s internal ethics branch, the Office of Professional Responsibility, on the quality of the legal memos produced by the Office of Legal Counsel. Attorney General Eric Holder promised last month that the report would be released by the close of November. That deadline has come and gone (as will the president’s deadline for closing Guantanamo, he confirmed). The years-in-the-making OPR document has been massaged, fondled, and loofahed for many months now. And yet we can still hope that it will shine a light on the kind of legal reasoning that supported torture, eavesdropping, and other innovations in the war on terror. This report will be a watershed not just because it will explore failures in legal methodology and legal reasoning (Yoo’s torture memos, for one, failed to cite legal precedent). At bottom, the important question here won’t be Vice President Cheney’s fatuous inquiry into whether or not torture “works.” With any luck the report will determine, once and for all, whether or not the law works.  

It is one thing to say, as former Attorney General Michael Mukasey has done, that the law is immutable and human error is the problem—urging as he has that Bush lawyers were under “almost unimaginable pressure” after 9/11 and offered “their best judgment of what the law required.” It is quite another to insist, as does Yoo, that the law itself was the problem and his style of lawyering was the solution.

This country was built on a belief in the system of laws. But what we have seen since 9/11 is a slow erosion in the certainty that it’s even a system worth defending. We got ourselves into the current legal mess by blaming the U.S. legal rules. Now we claim that American legal processes cannot be trusted to get us out of it. Whether it takes the form of the forthcoming OPR report, the appointment of a special prosecutor or creation of a truth commission, or the New York terror trials themselves, the American justice system is way overdue for a vindication. And that’s not because America needs a witch hunt or a show trial to get past 9/11. It’s because until we rehabilitate the rule of law itself, we have nothing to move forward to.

A version of this article also appears in this week’s Newsweek.