x Abu Dhabi, UAEThursday 27 July 2017

The law must rule, not political expediency

The 9/11 trial will stand as a test of America's attempts at restoring the rule of law. It may appear to be a waste of money. It may take longer than necessary. It will seem especially outrageous if the accused seek to use the forum as a political arena.

Al Qa'eda's propagandists are probably celebrating the recent comments of the US president Barack Obama's press secretary Robert Gibbs, who assured the American public that the self-professed mastermind of 9/11, Khalid Sheikh Mohammed, is "going to meet his Maker". Mr Gibbs continued: "He will be brought to justice and he's likely to be executed for the heinous crimes that he committed in killing and masterminding the killing of 3,000 Americans."

With these remarks Mr Gibbs implied that his boss, the US president, and the executive branch of the US government, not the judiciary, were driving the self-professed 9/11 mastermind's prosecution. Those terrorist apologists who want to construct a narrative of unequal struggle, heroic defiance and eventual martyrdom are given the chance to frame due process as driven by political rather than independent judicial considerations through Mr Gibbs's comments. His statement has served to undermine the rule of law as the ultimate judge of the fate of the accused and tinged proceedings with an official vengefulness.

Mr Gibbs's comments show a marked diversion from the Obama administration's initial determination to re-establish the rule of law as a means of dealing with the complex cycle of incarceration and legal process arising from post-9/11 conflicts. Holding "enemy combatants" at Guantanamo Bay - no matter what immediate needs there may have been to remove suspects from the field - did away with accepted legal safeguards surrounding the deprivation of an individual's liberty.

The subverting of legal codes to allow for "enhanced" interrogation methods and the militarisation of due process alienated many in the West whose first inclination was to stand by a wounded America and support her efforts to counter the growing fundamentalist threat. And those alienated were not just from the political left, but also from the libertarian right, where principles governing personal freedom are often seen as the bedrock of a healthy political and social system.

The so-called "War on Terror" led to a cavalier tampering with the rule of law not just in America, but also on the part of her faithful ally, the United Kingdom, where rights of assembly have been curtailed, where legitimate protest is dealt with by anti-terrorist statutes and where the principle of habeas corpus has been undermined. Mr Obama was quick upon taking office to move towards the restoration of independent legal process and promised the dismantling of Guantanamo. This was born from a conviction that America's legitimacy as the leading world power was in large part drawn from its democratic institutions and upholding of the rule of law. Mr Gibbs's comments portray a possible new and unhealthy desire towards using the forthcoming trial to reverse Mr Obama's plummeting approval rating.

The trial of Khalid Sheikh Mohammed and his associates should be free from any taint of political expediency or simple desire for retribution. Nor should calls by Republicans to hand the process over to military courts be heeded. This would only aid those who want to frame the 9/11 outrage in terms of legitimate military struggle rather than simple mass murder. Criticising officials for allowing the alleged Christmas Day bomber Umar Farouk Abdulmutallab to be dealt with in the courts, Senator Lamar Alexander, quoted by MSNBC, said: "We have to make a distinction between a kid who breaks into a sandwich shop in Detroit and a Nigerian terrorist who wants to blow up an airplane flying into Detroit."

Why? How can the format of a trial be dictated by the scale of the offence or its ideological context? The Oklahoma City bomber Timothy McVeigh's politically motivated atrocity in 1995, which was America's most devastating domestic act of terrorism until 9/11, was dealt with by a civilian court. The rule of law demands independence from the personal dispositions of accusers and accused. It cannot be politicised and should not, wherever possible, be subject to expediency, or objections on the grounds of cost. Still less should it be affected by the domestic political predicament of the US administration.

The fate of the 9/11 accused might also be considered alongside some of America's military activities in the wider field, more precisely in north-west Pakistan where hundreds of people, many of them civilians, have been killed by remotely operated US drones following the deaths of eight CIA operatives in Afghanistan's Khost province a month ago. This policy, with its high risk of civilian deaths, also complicates Mr Obama's claims to be a defender of due process.

Those of us left with troubled consciences towards the end of Mr Bush's presidency took some comfort, whatever our assessment of Barack Obama as a whole, in the promise that ideology might be replaced by process and pragmatism, that the full meaning of the rule of law be re-established, and that blood (if necessary American) and treasure would be expended at home and in the field to uphold consistent policies in defence of democratic principles.

The 9/11 trial will stand as a test of America's attempts at restoring the rule of law. It may appear to be a waste of money. It may take longer than necessary. It will seem especially outrageous if the accused seek to use the forum as a political arena. But the whole process must be allowed to play out in the courts as a murder trial, without officials in the US administration prejudging the verdict.

Martin Newland is editorial director of The National