Anders Breivik and Khaleid Sheikh Mohammed
The Atlantic's Max Fisher reflects on "What America Can Learn From Norway's Anders Breivik Trial."
The Atlantic‘s Max Fisher reflects on “What America Can Learn From Norway’s Anders Breivik Trial.”
The terrorism of Anders Behring Breivik is so horrific it can be difficult to even describe. Last July, he detonated a car bomb in Oslo, killing eight, before ambushing a left-wing political youth retreat, where he executed 69 people, mostly teenagers. Breivik, a self-styled “militant” who was ruled not insane by state-appointed experts, represents northern Europe’s far-right ethnic nationalism in its most extreme form. Both Breivik and his violent, dangerous ideology have an enormous soapbox with his trial in Oslo this week, from which international media organizations are beaming his words and ideas across the globe.
It’s exactly what the U.S. worried would happen if it tried Khaleid Sheikh Mohammed, the September 11 mastermind, in a New York city courtroom as originally intended. It’s the very scenario we avoided by deciding instead to try him in a military trial at the Guantanamo Bay military detention facility.
[…]
So, disaster averted, right? KSM never got his big platform to preach al-Qaeda’s ideology, never spread his toxic ideas around the world abetted by an over-eager media, never became a glowing New York-based beacon for the world’s would-be terrorists. Well, judging by the Breivik trial, that’s probably not really what would have happened, and there’s good reason to think it might have actually damaged KSM’s ideological message, rather than furthering it.
Breivik appears to be deliberately using the trial and its media coverage, which he is clearly enjoying, as a platform to glorify his awful crime and the beliefs behind it. “These acts are based on goodness, not evil,” he said. “I would have done it again, because offenses against my people … are many times as bad.” The family members of survivors were visibly pained as he explained that it was “critically important” for the world to hear his explanation, which they will. He called his attack “the most spectacular sophisticated political act in Europe since the Second World War.” It’s not hard to imagine Khelid Sheikh Mohammed saying something similar about September 11. In his manifesto before his attacks, Breivik wrote a sort of primer for the other militants he was hoping to inspire. “Your trial offers you a stage to the world,” he noted.
And yet, rather than sparking a far-right-extremist renaissance, or inspiring a new generation of Breivik acolytes across northern Europe, his public rantings appear to be having the opposite effect. European white nationalist movements, of which Breivik represents an extreme fringe, have been on the rise of years, gaining political power and, whether deliberately or not, inspiring violence. But the popular backlash against Breivik has put them on the defensive. Far-right such as the English Defence League, with which Breivik had some indirect contact, are suffering as Breivik reveals their disturbing ideological overlaps. When far-right parties held a mass rally in Denmark earlier this month, opposing protesters actually outnumbered them.
Al-Qaeda’s ideology, like Breivik’s, has been called an extreme fringe of an extreme fringe. In this case, al-Qaeda and KSM are often described as part of an offshoot of colonial-era radical Islamism, a violent reaction to colonialism and post-colonial Middle Eastern dictators. KSM and Osama bin Laden’s violence ended up alienating Muslims not just from al-Qaeda but from radical Islamist movements more broadly. Breivik’s violence seems to have alienated immigrant-weary white Europeans — his intended audience — from the far-right movements of which he was a fringe loner. His trial is exacerbating that trend; wouldn’t KSM’s trial have done the same?
I suppose there’s an argument that allowing these people to rant bolsters their cause even while harming their standing with the larger public. Perhaps the sort of fringe extremists which al Qaeda and nationalist hate groups seek to attract will find the screeds compelling even while the rest of us are strengthened in our disdain. But that strikes me as a risk worth taking.
Moreover, the trial itself can undercut their message:
Breivik is also showing off Norway’s criminal justice system, and its liberal democratic architecture, to the world. University of Oslo professor Thomas Mathiesen told the Associated Press that the Norwegian system isn’t about “revenge, but sober, dignified treatment” of even the worst criminals. “It is deeply ingrained in Norwegian tradition and fundamental values,” he said of allowing Breivik’s rants. “If it lasts all the way through the 10 weeks of this trial, and I think it will, we have an important message to the world.” The U.S. criminal justice system, which has similar protections for defendants and their dignity, never got a chance to show itself off in trying Khaleid Sheikh Mohammed before a curious world.
In the case of al Qaeda in particular, a sober, fair trial in an American court for a Muslim accused of heinous crimes would send a powerful message that the United States really believes in the “rule of law” that it preaches abroad and is in fact not engaged in a war against Islam. I’m sure that the most extreme Islamists will reject any evidence contrary to their worldview; but it’s quite possible that those on the margins will be swayed.
Norwegian courage, and American cowardice, on display for the world to see.
@Fog: Oh, I think that overstates things quite a bit. The US tries domestic mass murderers all the time. That we’ve been somewhat irrational in handling an attack on American soil by foreign terrorists is regrettable but it’s not something Norway has endured.
Um, no. The entire premise of that article is faulty. The “soap box” thing might have been problem No. 7 out of a 7-item problem list.
If you give the likes of KSM a trial in civilian federal court by definition you’d be giving them Brady rights, cross-examination rights, and a whole host of other accoutrements of our civilian criminal justice system. Inevitably KSM’s defense at trial would have undermined U.S. security interests, in that it would have exposed state secrets, e.g., the manner in which he was captured, the evidence that was discovered, the specific manners in which he was interrogated, etc.
That’s the main problem.
Secondarily, a trial in NYC or in some other major metropolis instantly would have been a juicy target for al-Qaeda. It’s a lot easier to defend against prospective terrorism at a Navy base in Cuba than in downtown Manhattan. The potential ramifications of a successful terror attack are a lot less worrisome in connection with the former as opposed to the latter.
Thirdly, if you try him in U.S. district court that means he’d have appeal rights to the U.S. court of appeals and, potentially, a play for cert. by the U.S. Supreme Court. Then he’d have habeas corpus rights after his trial, which in turn could be appealed and subjected to writs. Do we want KSM’s trial still to be going on years and years and years from now?
Fourth, for how long and at what expense do you need to protect the civilian trial jurors from potential revenge attacks by al-Qaeda operatives? Fifth, what happens if a loopy trial judge tosses out key evidence on some hyper-technicality? Sixth, what happens if his conviction is overturned on some hyper-technicality concerning the procedural aspects of his trial?
Only at that point do you get to the “soap box” question.
That article needs to be scrapped and rewritten.
We do not have an “inquisition” system of justice. We have an adversarial system that seeks to determine relevant empirical truths with a deep-seated respect for the rights of the accused not to incriminate themselves. The notion that anything resembling a Breivik speech would be allowed in an American court is fundamentally flawed.
Most of the world has different expectations and the moment a judge were to tell KSM to shut-up and answer the question, most of the world would see this as unfair.
@Tsar Nicholas II: I agree that what you identify as the main problem is the main problem here.
I believe the trial of KSM will be exempt from many of the normal procedures in American criminal trials because of national security exemptions and foreign components of the events taking place. His attorneys will argue against these, claiming that he’s being denied a fair trial. The Supreme Court has not made it clear what specific procedures attach to the Gitmo group, so everything will be fodder for appeal and potential retrial. And I ultimately do not believe anybody needing to be persuaded that America is not at war with Islam will find this mess satsifactory.
@Tsar Nicholas II: “Secondarily, a trial in NYC or in some other major metropolis instantly would have been a juicy target for al-Qaeda.”
Others can get into the rest of TN2’s argument, but I have to say that “We’re pussies” is never a great justification for anything. Bin Laden and al-Qaeda were never Lex Luthor and the Legion of Doom and the sheer cowardice displayed by so many conservatives on the subject of terrorism is either hilarious or disgusting.
Mike
@Tsar Nicholas II: Shorter Tsar: I love the constitution, except when it’s easier to ignore it.
@Tsar Nicholas II:
Notice how the crowd that’s so gung ho on the constitution and how “the law is the law, and must always be obeyed” on immigration suddenly want to dismiss everything as “hyper-technicalities” when it means they don’t get what they want.
Trying KSM in Gitmo rather than NYC is nothing more than rank cowardice. It is an embarassment. We’ve become such a pale reflection of the character of those who withstood the London Blitz and conducted the trials at Nuremburg. Pathetic.
The President was on board with you, following exactly that reasoning, but unfortunately it was just too easy an issue to fear-monger for the GOP to pass it up.
You had Liz Cheney and Bill Kristol, through their “Keep America Safe” PAC, running ads calling the DOJ the “Department of Jihad” and a number of its lawyers the “Al Qaeda Seven”. Cheney also pushed this in interviews and Sunday show round tables. You had GOP law makers giving floor-speeches, practically wetting themselves with fantasies of New York trials bringing attacks, kidnappings of judges relatives, and all sorts of other horrors.
It wasn’t long before the polls turned, the admin lost Bloomberg (who was initially on board with the trials), they then lost the New York delegation, and then eventually pretty much everyone starting jumping ship.
@Tsar Nicholas II: Wait, are you just making a list of why it’s necessary to have trials at all, or are you making a list of objections?
1a. Giving rights to defendants is a fundamental element of a functioning court, military or criminal. That you don’t like those rights — in this case, apparently actively fear those rights — says a lot about you, none of it good.
1b. Ex parte proceedings can and have been used in cases where “state secrets” might be involved. Having the government simply say that evidence is a “state secret” is no justification for hanging a man without a legitimate trial.
2. Cities like NYC have no problem with security on a regular basis, and having a “juicy target” is not an excuse to simply not have anything. Regardless, the Subway is a juicy target on a daily basis; hell, the Q train at 4 a.m. is a juicy target. A trial? You have to be straight-up paranoid and/or delusional to think that terrorists who take years to plan anything worse than what you get from your garden-variety gang member would waste their energies to come up with an attack right-quick just because a trial is going on in a particular city.
3. Congratulations on recognizing that our legal system exists. If a person is tried and convicted, they aren’t released because they appeal; they continue to be held. It’s a fundamental problem with your thinking that a person having the ability to appeal convictions is somehow detrimental to our interests. Indeed, as pointed out in the article, it’s the US court system on display: we even give appeals to serial killers and mass rapists. Just think of it as good for the economy.
4. Jurors need to be protected exactly as long as they have to when a cult leader or mobster is convicted of a crime.
5 & 6. The reason the legal system is set up the way it is is partly to ensure that the government doesn’t overstep its bounds in trying and convicting someone. Technicalities are part of the game. Somehow it gives you comfort to think that people who may be evil are being treated in a manner that assumes guilt; to most people, that sounds like the worst possible abuse of the legal system. If the case is solid, even an overturned conviction will likely allow for a second trial. And if we were really worried about it, we should hold some of the charges back to guarantee no double jeopardy claims. Surely a guy like KSM could be put away forever without the need for an additional 84 counts of murder and conspiracy.
I find it strange that the people who are totally willing to throw process under the bus for the sake of National Security are the same ones who decry government overreach in daily lives, as though the possibility of paying for someone else to have a broken leg fixed is an egregious affront to liberty but the possibility of being detained without any legal recourse by your government is just totally fine and something we should change the way we do business to encourage by having overseas detention and kangaroo courts. It kinda makes me sick, actually.
In my opinion, a fair trial under American law would never be held in NYC to begin with. We didn’t prosecute the Oklahoma City bombing in Oklahoma City because it wouldn’t be a fair trial. The idea of having the trial in NYC reveals that the intention was not to play by the normal rules of American jurisprudence. Show trial and victor’s justice, with no chance of acquittal, was what was being communicated. You can do that cheaper in Gitmo.
The original article is a classic piece of projection of domestic political posturing onto a foreign situation the writer only has a cursory understanding of. The Norwegian authorities desperately tried to avoid a trial by getting Bretvik diagnosed as a paranoid schizophrenic. That attempt ended in debacle as Bretvik shows none of the symptoms of paranoid schizophrenia but all the symptoms of a classic pathological sociopath – someone with Narcissistic Personality Disorder. Unfortunately NPD is not a valid criteria for a criminal insanity ruling. If it was a hell of a lot of politicians and businessmen would be in prison mental hospitals. Based on reading the transcript that was in yesterdays Norwegian newspapers the trial is a disaster. Bretvik shows all the cunning of the classic sociopath. There was enough plausibility in various assertions in his statement to cause a nod of recognition in people who were utterly sickened and revolted by the pure evil of his act on Utoya.
He picked his main target carefully. One cannot help but be heartbroken by the pain and suffering caused by his gunning down all those young people but what was striking while watching a BBC TV documentary a few night ago about the massacre was, with a few notable exceptions, all the survivors they interviewed were all very clearly AUF apparatchiks in training. In fact the two leaders of AUF youth came over as particularly slimy politico types. The victims were not ordinary young people picked at random, they were trainee candidates for the next generation of the Norwegian ruling class. Those of you from Europe who know how the ruling parties groom the next generation of the political class will be very familiar with the type. There is no real equivalent in the US or UK.
Bretvik is pure evil should be silenced immediately and spend the rest of his life in a criminal mental asylum. Those of us very familiar with the dynamics of 1930’s European politics realize just how dangerous someone like Bretvik really is and how important it is that he is not given any kind of public platform to further destabilize an already very febrile situation.
@Tsar Nicholas II:
No, the main problem is that you think rights are things that are given or taken away based on what the perceived desired end of a trial is.
Conservatives often lose their nerve, I think because they don’t really believe in the ideals they claim. We should try the terrorists we’ve capture in open court. Yes, they will spew hatred and some will get off on it. But if you really believe in an open democracy, then you need to follow through on that.
I don’t recall anything in the constitution requiring us to give jury trials to foreign combatants. Could someone point out that passage to me?
And, weren’t the Nuremberg trials in fact military tribunals? Why didn’t we bring the Nazi’s back to the US for the jury trials we offer our own citizens? You know, back when we weren’t cowards.
@fustian:
KSM isn’t a foreign combatant. He’s a prisoner in US custody accused of murdering American citizens. Civilian ones. Within our borders.
The Nuremberg trials were kangaroo courts and a really, really poor example of justice. Even so, they were being tried for war crimes, not violations of US law.
It irked me at the time since I thought those in charge were implicitly admitting American ideals would somehow not stand up to al-Qaeda’s ideology.
It would’ve been one hell of a show trial, though. I think the catharsis alone might’ve been reason to go through with it, even one born of vengeance instead of justice.
My understanding was that KSM was not wearing the uniform of any military organization. The fact that civilians were targeted plays no part in whether he is a citizen, a prisoner of war, or an enemy combatant.
Of those three, he is neither a citizen, nor a prisoner of war.
It’s so obvious, just like with bullies, that these armchair warriors who puff their chests out the most usually end up being the biggest cowards…
Nahhhhhh. Gulags. Waterboarding. Outsourcing the nastier torture to Mubarek’s henchmen. The right showed us what they are really made of.
@James Joyner: Not really – listen to the fearmongering ranting of the right.
@jmc: You make lots of assertions, but little proof. He’ll be tried, he’ll be convicted, and he’ll be sent to prison. The families of the victims will still be hurting, but that’d be the case anyway.
@fustian: “Of those three, he is neither a citizen, nor a prisoner of war. ”
First of all, ‘enemy combatant’ is a phrase with all of the legal meaning of ‘counter-revolutionary’, or ‘kulak’, or ‘kulak sympathizer’.
Second, as James Joyner said.
@fustian:
You omitted the obvious option that he is a non-citizen alleged to have committed a terrible crime.
This is a symptom of the overlawyering of our society. KSM is not a criminal. He never violated any laws on US territory.
He is, by his own declarations and deeds, a sworn enemy of the United States. He was a leader in an organization that declared war on the United States. That he doesn’t represent a nation is a legal inconvenience, but he is not a criminal in the traditional sense. He is an enemy combatant.
Besides, this is all a show trial anyway. Obama has proclaimed that regardless of the verdict, KSM will never be free again, regardless of the verdict. There is literally no point to his trial, except to pretend that we have a legal system that can handle anything.
It can’t. It isn’t for every situation. We have other systems in place for specific circumstances. In this case, it’s the military and its regulations. They successfully handled similar cases in the past — the Nazi infiltrators are a prime example — and should be entrusted to do right again.
We’ve been inculcated that we need lawyers and courts for every single aspect of our lives, and now it’s affecting our national security. Time to push back a bit.
Well, that ought to get me sued…