Trying Khalid Sheikh Mohammed in Manhattan would have showed the terrorists that Americans are not afraid. Eight and a half years after 9/11, we’re not there yet.
March 2, 2010
U.S. Attorney General Eric Holder insisted gamely last week that Barack Obama's administration is still considering holding the trial of Khalid Sheikh Mohammed (KSM), the master planner of 9/11, in the federal criminal courthouse in Manhattan; but it cannot be. An immense tide of fear and anger has swamped the judicial -- and moral-- calculations that led Holder to his initial choice, rendering the actual merits immaterial beside the suicidal politics. More than eight years after the bombing of the World Trade Center, that fear, and that anger, still cloud Americans' thoughts about the response to terrorism.
Here is one of the chief ironies of the war on terror: Thanks in part to the Bush administration's aggressive homeland security efforts, we may be objectively safer than we were nine years ago; and yet, thanks to the apocalyptic terms on which Bush and Cheney waged the war on terror, we feel much less safe. We feel terrified. "We're at war in our airports," Scott Brown cried during his Senate campaign in Massachusetts. "We're at war in our shopping malls." We are living in the middle of a monster movie. This is why the politics of the war on terror have reproduced those of the Cold War, making Democrats live in fear of any policy, any gesture, that could be deemed "soft."
After Holder first announced the decision to hold the trial in New York, Obama said, "We have to break ... this fearful notion that somehow our justice system can't handle these guys." It was a notion with no obvious foundation, since nine-tenths of the accused terrorists processed through the criminal-justice system had been found guilty, and no trial had been seriously disrupted. New York Mayor Michael Bloomberg initially agreed, saying, "It is fitting that 9/11 suspects face justice near the World Trade Center site, where so many New Yorkers were murdered." As a New Yorker who had emerged from the subway that morning to see the first flames leap from the towers, I felt -- and I foolishly imagined that all New Yorkers would feel -- that holding the trial here offered us a chance to demonstrate our imperturbable urban mettle, to make sure that we, not they, got the last word.
It's true, says Magnus Ranstorp, a terrorism expert at the Center for Asymmetric Threat Studies in Stockholm, that a public trial could turn KSM "into a superhuman for those terrorists who are his followers." But Ranstorp nevertheless strongly favors such a trial, which, he says, "de-dramatizes the mythology around terrorism." And of course it sends a message about us: That our strength inheres in our democratic principles and practices more than in our military might, that we do not have to annul or sideline our system of criminal justice in order to deal with this new threat, that calling people "terrorists" does not make them either subhuman or superhuman.
The message, however, fell victim to the politics, and to the psychic atmosphere. City officials at first estimated that security for the trial would cost $75 million a year. But on Jan. 6, Bloomberg delivered a letter to the White House putting the cost at $200 million a year, over five years. Two weeks later, Police Commissioner Ray Kelly publicly outlined the plans, which entailed cordoning off several blocks around the courthouse and establishing a wider security zone within which drivers and pedestrians would be subjected to random checks. The trial, Kelly warned, "will raise the threat level of this city," adding, "We will have to look at the entire city as a potential target."
What happened to urban mettle? The city's top security official was saying that the cost of holding the trial in New York was paralyzing Lower Manhattan and exposing the metropolitan area to the threat of terrorist attack. Of course that was too high a price to pay -- in every sense. The Real Estate Board of New York established movethetrial.com, a website whose central proposition was that the trial "will strangle the already weakened local economy." The effective imprisonment of Lower Manhattan would, in the supreme nightmare scenario, bring co-op and condo sales to a halt. New York's business and civic elite began to close ranks against the trial. On Jan. 27, Bloomberg reversed himself, suggesting the Justice Department move the trial to a military base somewhere.
But was it, in fact, necessary to choose between the trial and the city's security, and economy, and daily life? In other parts of the world, high-security terrorism trials are accepted as a fact of modern life. Irish terrorists used to be routinely tried in Belfast's Crumlin Road courthouse on the ethnic dividing line of a city seething with terrorist sympathizers. The Old Bailey, the setting for many such trials, sits in the middle of London. The trial of the 29 men accused of masterminding the 2004 train bombings in Madrid, which killed 191 people, featured a bomb-proof chamber for the defendants; but the intense security did not make city life grind to a halt. (I cannot say what happened to condo sales.) Peter Clarke, the former head of counterterrorism for Scotland Yard and now a fellow at New York University's Center on Law and Security, told me, "You have to accept that it is virtually impossible to exclude risk. And then you have to decide who owns that risk." Political leaders must be willing to take responsibility. (But Clarke also noted that the British have moved the most notorious trials to the high-security court at Belmarsh, at the edge of London -- a solution worth considering for the future.)
So why wouldn't the famously pugnacious Bloomberg own that risk? Or rather, why didn't he push back when Kelly presented his asphyxiating plan? I don't know the mayor's motivation; given the police commissioner's own sterling record as a public servant and the growing opposition of the business community, Bloomberg would have had to believe very deeply in holding the trial in the shadow of the World Trade Center. Perhaps he didn't. An avowed pragmatist, the mayor might well have concluded that this was scarcely a battle worth taking up.
Could Bloomberg have succeeded by reminding New Yorkers of their native moxie? I suspect not. One of the hallmarks of our era is that when security is placed in balance with some other principle, security almost always wins. Look at the outcry over moving prisoners from Guantánamo to the U.S. mainland. When the Justice Department tried last fall to resettle two (likely harmless) Chinese Uighurs in Virginia, the hysterical reaction led Congress to bar the government from moving any detainees to U.S. soil, save for trial. The proposal to move others to supermax prisons in this country led to a nationwide NIMBY backlash. A few dozen craggly detainees had been endowed with a kind of radioactive menace.
New York's mayor and police commissioner thus put the president and the attorney general in the impossible position of advocating core democratic principles in the face of security concerns. That's a loser. Last week, Obama ruefully acknowledged that "if you have a city that is saying no, and a police department that is saying no, and a mayor that is saying no, that makes it difficult." But you can't just blame them: All of us are running scared.
James Traub is a contributing writer for the New York Times Magazine and author of, most recently, The Freedom Agenda. His new column for ForeignPolicy.com runs weekly.
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