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Trying Question


Perhaps what critics are truly worried about is Mohammed’s defense trying to put the focus on American interrogation tactics. Some of those methods are indeed embarrassing, and graphic descriptions of torture could inflame those who despise us. But those people were going to despise us anyway. The war on terror is as much a war for hearts and minds as it is a war of military might, and there are millions of people around the world who haven’t chosen sides. What deserves exposure is America’s system of openness and freedom—imperfect, to be sure, but vastly superior to Al Qaeda’s perversion of Islam. Denying the facts of a dark period in American history strengthens our enemies.

National-security secrets could be disclosed.
David Kelley is no weak-kneed liberal. When the first plane hit the World Trade Center, Kelley went from his desk in the U.S. Attorney’s office to immediately begin the investigation. He saw the second plane hit and was buried in debris when the first tower collapsed. Kelley led the investigation into the bombing of the U.S.S. Cole, and in 1997 he won the conviction of Ramzi Yousef, one of the planners of the first bombing of the World Trade Center (and Mohammed’s nephew). Kelley had to sort through similar questions about how sensitive information could be used against Yousef. “There are a lot of people out there screaming and hollering about this, and they should be quiet,” Kelley says. “They haven’t evaluated what evidence Holder has, or what the prosecution is going to use in the trial. So none of us know what we’re talking about. What I do know is that there are procedures in place to protect classified information. And I am by no means callous about this—we do need to be careful—but who’s fooling who here? Al Qaeda already knows a lot of this stuff that’s going to come out in court.”

Khalid Sheikh Mohammed could win.
It wouldn’t be a real trial unless that chance existed. But you need to believe that Holder is an idiot and is bringing the case to court without a mountain of damning, untainted evidence; or that the judicial system is so twisted and corrupt, as some right-wingers argue, that it actually wants Mohammed to win; or that a jury of twelve rational New Yorkers can’t possibly be found in order to believe Mohammed has any significant hope of being acquitted. “From what the A.G. has told me, they aren’t going to use any information from interrogations,” one terrorism expert says. “And nobody tortured KSM to brag about his role when he talked to Al Jazeera.”

As a senior FBI agent, Pat D’Amuro chased the Cole bombers; D’Amuro learned more about Mohammed as the head of the Bureau’s New York office. He had the foresight, in 2001, to understand what the CIA’s push for “enhanced interrogation” tactics would mean, and he argued, successfully, to keep FBI agents out of the dirty work. He now runs Giuliani Security & Safety and believes a federal trial is a mistake. “If the endgame all along was trying people in the federal-court system, then fine,” D’Amuro says. “But now you’ve bastardized the system and you’re going to go back and bring it full circle? The tribunals were made legal, why not use them? You’re taking a risk that’s not necessary.” But does D’Amuro believe there’s enough non-torture evidence to convict Mohammed? “Yes,” he says. “But it’s up to a jury to convict.”

Living with the remote chance of acquittal means we live in a country that honors the standards that set us apart from other societies. For seven years, our public-policy reaction to 9/11 was driven by hysteria and fear—some of it manipulated, of course, to achieve political ends. Obama won the presidency a year ago for many reasons, but one of them was his vow to operate national-security policy according to the fundamental principles of American values, and according to reason instead of emotion. We don’t disappear people in this country, and we aren’t scared of giving an evil man his day in court. Especially in New York.



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