Adam Sieff, Staff Writer
Ideology: Liberal | Writing from: Columbia University

There is actually a strong geopolitical argument to be made in favor of trying Khaled Sheikh Mohammed in the United States apart from any consideration of “justice” or “due process.”

The argument that Khaled Sheikh Mohammed ought to be prosecuted in a military tribunal and not a Manhattan courthouse seems to most strongly rely on the premise that, as an “act of war,” Mohammed’s crimes are ultravires the jurisdiction of any U.S. court. However, while 9/11 may certainly be classified an act of war, I am not sure why this substantiates the argument.

For one, over 214 Al Qaeda associates have already been brought to trial in the United States in the past 8 years for actions connected to the 9/11 attacks. 91 percent of these terrorists were subsequently convicted, while the other 9 percent mostly remained in custody for other charges. Fewer than 19 were deported for immigration violations and placed under significant surveillance.

Moreover, the study citing these figures notes that those not convicted or detained were mostly minor actors with only loose affiliations to terror groups and, consequently, unlikely recidivists. In other words, there is clearly an effective precedent already in place to try him in country, especially given the abundance of evidence held against Mohammed.

As an aside, I find it odd that those most likely to extol the virtues of “American exceptionalism” are also those most willing to sacrifice it to suit what former Chief Justice William O. Douglas once called “the passion and clamor of the time”—but I digress.

Having dismissed these concerns, there is actually a strong geopolitical argument to be made in favor of trying Mohammed in the United States apart from any consideration of “justice” or “due process.” From this perspective, a trial on U.S. soil marks a high profile, visual departure from the “waterboard era,” and helps bolster the credibility of America’s security signals. The value of credibility is not a moot point to be dismissed as weak-kneed liberal-speak pandering to European socialists, but indeed thecrucial factor in preventing unnecessary conflict.

In the logic of war, the credibility of a state’s guarantees–both to its allies and its enemies–is a currency as valuable as its power projection. This applies especially to a unipole, whose intentions affect nearly every corner of the globe, and whose power is unchecked internationally. Credibility is relevant in the forthcoming trial against Mohammed in that America’s adherence to its own deeply embedded standard of justice—whatever its merits—is at stake.

Abandoning such deeply held internal legal principles for the sake of expedience has two effects. First, it is a way to make our middle-power allies less comfortable with our not-so-deeply held security assurances to their states. As the logic goes, if America is willing to disregard its core Constitutional principles, what is to stop it from disregarding its superficial treaty obligations in an arena where there is no arm to exert retribution? This uncertainty can lead middle-power states to balance internally by increasing their own nuclear arms to hedge against the risk of American hegemony or withdrawal—an action that can lead to destabilizing regional arms race, security dilemma, and possibly preventative war.

Second, abandoning principles is a signal to disenchanted states not currently cooperating with the U.S. (e.g. Iran, North Korea) that American hegemony, already unlimited in capacity, is also unlimited in intent. This raises the costs of not proliferating and makes obtaining nuclear weapons—ultimately the only effective deterrent against such a unipole—more attractive in the immediate term. The ratcheting of these efforts creates a high incentive for America to pursue preemptive war as a means of preventing the diminution of its relative power.

To be sure, one trial will not suffice to effectuate either of these undesirable outcomes. Nevertheless, we already have a record of flaunting the Constitution and should take heed not to formalize such behavior normatively.

Ultimately, it is undeniable that Americans thirst for retributive justice. The comfort of an imagined leveling eases the pain of tragedy and is a catharsis that ought to be realized for the victims and relatives of those who perished, as well as for all Americans.

With the trial in U.S. Court, we will have such cathartic justice without undermining our security and risking another tragedy of perhaps even greater magnitude. With another war tribunal, however, we may be easing the “passions and clamors” of this time, at great cost to those of another.