Dahlia Lithwick of Slate asks why we are so afraid of putting terrorists on open trial in New York City. It's a mystery to me, too.
America has slid back again into its own special brand of terrorism-derangement syndrome. Each time this condition recurs, it presents with more acute and puzzling symptoms. It's almost impossible to identify the cause, and it's doubtful there's a cure. The entire forensic team from House would need a full season to unravel the mystery of what it is about the American brain that renders us more terrified of terrorists today than we were five years ago and less trusting of government policies to protect us.
The real problem is that too many people tend to follow GOP cues about how hopelessly unsafe America is, and they've yet again convinced themselves that we are mere seconds away from an attack. Moreover, each time Republicans go to their terrorism crazy-place, they go just a little bit farther than they did the last time, so that things that made us feel safe last year make us feel vulnerable today.
Policies and practices that were perfectly acceptable just after 9/11, or when deployed by the Bush administration, are now decried as dangerous and reckless. The same prominent Republicans who once celebrated open civilian trials for Zacarias Moussaoui and Richard Reid, the so-called "shoe bomber," now claim that open civilian trials endanger Americans (some Republicans have now even gone so far as to try to defund such trials). Republicans who once supported closing Guantanamo are now fighting to keep it open. And one GOP senator, who like all members of Congress must take an oath to uphold the Constitution, has voiced his concern that the Christmas bomber really needed to be "properly interrogated" instead of being allowed to ask for a lawyer.
In short, what was once tough on terror is now soft on terror. And each time the Republicans move their own crazy-place goal posts, the Obama administration moves right along with them.
It's hard to explain why this keeps happening. There hasn't been a successful terror attack on U.S. soil since 9/11. The terrorists who were tried in criminal proceedings since 9/11 are rotting in jail. The Christmas Day terror attack was both amateurish and unsuccessful. The Christmas bomber is evidently cooperating with intelligence officials without the need to resort to thumbscrews. In a rational universe, one might conclude that all this is actually good news. But in the Republican crazy-place, there is no good news. There's only good luck. Tick tock. And the longer they are lucky, the more terrified Americans have become.
This week Glenn Greenwald summarized how far the goal posts of normal have moved when he pointed out that "merely advocating what Ronald Reagan explicitly adopted as his policy—'to use democracy's most potent tool, the rule of law against' terrorists—is now the exclusive province of civil liberties extremists." Upon being elected to the U. S. Senate last month, Scott Brown declared: "Our Constitution and laws exist to protect this nation—they do not grant rights and privileges to enemies in wartime. In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them." As Adam Serwer observed, "This is the new normal for Republicans: You can be denied rights not through due process of law but merely based on the nature of the crime you are suspected of committing. Brown's rhetorical framing, that jettisoning the legal system we've had for 200-plus years represents 'tradition' while granting suspected criminals the right to legal counsel represents liberalism gone mad."
I have read several good explanations for why the GOP leadership has decided to make the case that processes that worked in the Bush administration (like civilian trials) won't work under Obama, and why policies that failed in the Bush administration (like torture or military tribunals) must be reinstated. Maybe it's simple obstructionism. Josh Gerstein points out that for Republicans seeking to capitalize on Obama's missteps, his feints and pivots on national security have proved fertile ground. And Greenwald concludes that "our establishment craves Bush/Cheney policies because it is as radical as they are."
But it's not just the establishment that opposes closing Guantanamo, trying Khalid Sheikh Mohammed, or reading Umar Farouk Abdulmutallab his Miranda rights. Polls show most Americans want Abdulmutallab tried by military commission, want Gitmo to remain open, and want KSM tried in a military commission, too. For those of us who are horrified by the latest Republican assault on basic legal principles, it's time to reckon with the fact that the American people are terrified enough to go along.
We're terrified when a terror attack happens, and we're also terrified when it's thwarted. We're terrified when we give terrorists trials, and we're terrified when we warehouse them at Guantanamo without trials. If a terrorist cooperates without being tortured we complain about how much more he would have cooperated if he hadn't been read his rights. No matter how tough we've been on terror, we will never feel safe enough to ask for fewer safeguards.
Now I grant that it's awfully hard to feel safe when the New York Times is publishing stories about a possible terrorist attack by July. So long as there are young men in the world willing to stick a bomb in their pants, we will never be perfectly safe. And what that means is that every time there's an attack, or a near-attack, or a new Bin Laden tape, or a new episode of 24, we'll always be willing to go one notch more beyond the rules than we were willing to go last time.
Some of the very worst excesses of the Bush years can be laid squarely at the doorstep of a fictional construct: The "ticking time bomb scenario." Within minutes, any debate about terrorists and the law arrives at the question of what we'd be willing to do to a terrorist if we thought he had knowledge of an imminent terror plot that would kill hundreds of innocent citizens. The ticking time bomb metaphor is the reason we get bluster like this from Sen. Susan Collins, R-Maine, complaining that "5-6 weeks of 'time-sensitive information' was lost" because Abdulmutallab wasn't interrogated against his will upon capture.
But here's the paradox: It's not a terrorist's time bomb that's ticking. It's us. Since 9/11, we have become ever more willing to suspend basic protections and more contemptuous of American traditions and institutions. The failed Christmas bombing and its political aftermath have revealed that the terrorists have changed very little in the eight-plus years since the World Trade Center fell. What's changing—what's slowly ticking its way down to zero—is our own certainty that we can never be safe enough and our own confidence in the rule of law.