The Seen and the Unseen

The federal judge who recently handed down a 22-year jail term for the "millennium bomber" delivered the following rebuke to the Bush administration.

"We did not need to use a secret military tribunal, detain the defendant indefinitely as an enemy combatant or deny the defendant the right to counsel," he said Wednesday. "The message to the world from today's sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart."

He added that the Sept. 11, 2001, attacks have made Americans realize they are vulnerable to terrorism and that some believe "this threat renders our Constitution obsolete ... If that view is allowed to prevail, the terrorists will have won."

If you're feeling charitable, count this judge among those whom Tony Blair would describe as having "gone back to sleep" since the atrocities of September 2001. Those of us who remain awake might recall what war tribunals are all about.

The President's order appropriately allows our government to prosecute war criminals without exposing sensitive intelligence information to the media or other terrorist groups. It also would protect judges and potential jurors from threats, intimidation and violence by al-Qaeda agents.

We are at war with an enemy who thinks nothing of abusing individual liberties. These people in fact use our liberties against us.

As the Attorney General pointed out, al-Qaeda terrorists have even assembled a manual that instructs their operatives to use our judicial processes to mislead investigators and lie about who they and their associates are. They are trained to use our free press to pose as victims of misconduct by U.S. authorities and spread their messages through code phrases to other al-Qaeda operatives. They are told to invent stories of torture and abuse in prison to gain sympathy for their cause.

Have no doubt that public trials of these terrorists would lead to circuses of manipulation, falsehood, and deliberate signals to other terrorists still roaming free in the United States and who still seek to do us harm.

Interestingly this very news story vindicates the Bush administration later on: After reading the following, one wonders what interrogation techniques were kept off-limits when Ressam suddenly decided to stop singing.

Facing up to 130 years in prison after being convicted of terrorist conspiracy and explosives charges in 2001, Ressam began cooperating with authorities in hopes of winning a reduced sentence. He told investigators from several countries about the operation of terrorist camps and disclosed the identities of potential terrorists, the use of safe houses and other details.

Ressam's information was given to anti-terrorism field agents around the world - in one case, helping to prevent the mishandling and potential detonation of the shoe bomb that Richard Reid attempted to blow up aboard an American Airlines flight in 2001.

Coughenour has called the information Ressam provided "startlingly helpful."

"It is a flat fact that law enforcement, the public and public safety have benefited in countless ways" from Ressam's cooperation, defense lawyer Thomas Hillier said.

However, prosecutors said Ressam put their cases against his alleged millennium bombing co-conspirators in jeopardy when he stopped cooperating with the government in 2003, citing the stress of solitary confinement.

Prosecutors insist that without his testimony they will have to drop charges against Abu Doha and Samir Ait Mohamed. Both men are awaiting extradition to the United States - Doha in Britain, Mohamed in Canada. McKay said that aside from immigration violations, he did not know what charges officials in Europe or Canada might pursue against them.

"It means that two other individuals who we believe to be dangerous will not be prosecuted in this country [bold added]," said McKay, who was seeking a 35-year sentence for Ressam.

All the homage in the world to our nation's ideals amounts only to empty pieties if our nation is made less able to defend herself. One is left to wonder: Does this judge sympathize with the enemy or has he fallen prey to the "fallacy of the broken window" so well refuted by Frederic Bastiat?

Have you ever witnessed the anger of the good shopkeeper, James B., when his careless son happened to break a square of glass? If you have been present at such a scene, you will most assuredly bear witness to the fact, that every one of the spectators, were there even thirty of them, by common consent apparently, offered the unfortunate owner this invariable consolation - "It is an ill wind that blows nobody good. Everybody must live, and what would become of the glaziers if panes of glass were never broken?"

Now, this form of condolence contains an entire theory, which it will be well to show up in this simple case, seeing that it is precisely the same as that which, unhappily, regulates the greater part of our economical institutions.

Suppose it cost six francs to repair the damage, and you say that the accident brings six francs to the glazier's trade - that it encourages that trade to the amount of six francs - I grant it; I have not a word to say against it; you reason justly. The glazier comes, performs his task, receives his six francs, rubs his hands, and, in his heart, blesses the careless child. All this is that which is seen.

But if, on the other hand, you come to the conclusion, as is too often the case, that it is a good thing to break windows, that it causes money to circulate, and that the encouragement of industry in general will be the result of it, you will oblige me to call out, "Stop there! your theory is confined to that which is seen; it takes no account of that which is not seen."

It is not seen that as our shopkeeper has spent six francs upon one thing, he cannot spend them upon another. It is not seen that if he had not had a window to replace, he would, perhaps, have replaced his old shoes, or added another book to his library. In short, he would have employed his six francs in some way, which this accident has prevented.

And so, granting this judge the benefit of the doubt for the moment, he seems to have been blinded by the successful prosecution he can see to the missed opportunities to stop other terrorist attacks -- which are the unseen. In other words, he is evaluating the outcome of this trial outside its broader wartime context.

Yes. We can successfully prosecute terrorists in civilian courts. But should we? No. But to realize this, we must not permit the seen to distract us from the unseen.

One wonders why the judge made the kind of argument he did, especially in light of several points. First of all, he surely must understand how the prosecution of this trial in his court thwarted U.S. counterterrorism efforts. Second, note the dishonest charge he makes about the tribunal system: "We need not ... deny the defendant the right to counsel." Defendants in this system do, in fact, have counsel. Third, the judge was asked to hand down a 35 year sentence, but gave 22 years instead, despite the prosecutor mentioning this refusal to cooperate:

After noting that Ressam's sentence would be "perhaps the most important sentence this court has ever had," [Andy] Hamilton told the judge that Ressam's reluctance to cooperate further should weigh heavily.

"You can't be a cooperator and a terrorist," he said. "When he stopped cooperating, he went back to being what he was."

This means that the terrorist may walk free in as little as 14 years.

So is this judge blind, or does he hope to make us blind with his very public statement?

Whatever the judge's reasons for making the argument he did, keep this approach in mind the next time you hear an argument that sounds plausible for pretending that terrorists are anything other than enemy combatants. You might be having "the seen" pulled over your eyes.

-- CAV