Earlier this month, U.S. Attorney General Eric Holder announced plans to try five alleged terrorists in the Southern District of New York. The hue and cry was loud and long: Our prisons cannot hold them, the law will set them free, and now darkness clouds a once safe future.
Hysteria like this is sadly familiar. Within days of the Sept. 11, 2001, attacks, an image of the Muslim terrorist took shape in American society. He is less than human — a barbarian who has renounced the conventions of civilized behavior. Yet he is also more than human. At special camps and schools, he has trained his mind and body to perfection. He has the strength of Hercules and the skill of Houdini.
Even if you manage to capture him, he has exotic skills that enable him to resist all interrogations. And though he may appear harmless, even innocent, do not be fooled; he is a master of disguise. Do not bring him to this country, and do not give him the benefit of the law. He is not like mortal men. It is the myth of the superhuman terrorist.
It is thinking like this that has taken us so far astray. It explains, for instance, the widespread belief that the government had to use "enhanced" interrogation techniques. Because detainees supposedly received "resistance training," the United States could not rely on conventional methods. But we have finally learned what history will record as obvious: Muslim prisoners have no special "resistance" to interrogation. After eight years, there is no evidence that information secured by torture could not have been secured by lawful means.
Hysteria hits high water when talk turns to the detention center at Guantánamo Bay, Cuba. Elected officials seem to have taken lessons from P.T. Barnum: "The most deadly killers in the world"; "The worst of the worst." But when proof substitutes for prattle, federal judges see it differently: Thirty-eight prisoners have had their fate decided by the courts, and 30 have been cleared. In one of the few cases in which the government prevailed, the court described the evidence as "gossamer thin." Meanwhile, the administration has completed a review of about half the prisoners at the base. The great majority have been cleared for release. And this does not count the more than 500 previously released by the Bush administration.
In much the same way, the myth accounts for the savage attacks on the machinery of American justice, so much on display following Holder's announcement. But the cry that we cannot prosecute alleged terrorists founders on the rock of repeated national experience — we have successfully prosecuted terrorists for many years, and we will again. The ridiculous suggestion that we will not be able to house them securely was recently dispatched by the American Correctional Association, the oldest and largest corrections group in the country, and it was Harley Lappin, director of the Federal Bureau of Prisons, who testified in Congress about the procedures in place to prevent radicalization.
Some worry that federal prosecutors may lose the 9/11 case. But the odds of an acquittal are vanishingly small; the defendants have eagerly admitted their guilt. In any case, the possibility of an acquittal casts a shadow over every trial, except those we stage just for show. Presumably no one suggests we loosen the fetters of the law merely because we fear a loss; the moral bankruptcy of a system deliberately designed to convict hardly requires comment.
Step by step, we are slowly shaking off the myth. But myths are like weeds — they can take root almost anywhere, survive on almost anything and are nearly impossible to kill. Some people, such as Senate Minority Leader Mitch McConnell (R-Ky.), now say the question is not whether we can try alleged terrorists in federal court but whether we should. ["A Lesson from the Uighers," NLJ, Nov. 9]. But his question summons to mind the observation of Winston Churchill: "Americans can always be counted on to do the right thing," he said, "after they have exhausted all other possibilities."
So why at last should we resort to the law? Because after eight years of exhausting other possibilities, it is finally time to do the right thing.
Joseph Margulies is assistant director of the Roderick MacArthur Justice Center at Northwestern University School of Law.
