THE REAL TERRORISTS ARE STILL AT LARGE -- EXCEPT FOR THE PLANNER, AND WE CAN'T PUT HIM ON TRIAL

The wingnuts are screaming: Fry him! It's another case, like Iraq, of wanting someone to pay for 9/11, even if it's the wrong someone.

Siva Vaidhyanathan and I have been asking the same question. Why is Zacarias Moussaoui the only one who's been tried for the 9/11 attacks?

Somewhere in a secret prison sits Khalid Sheik Mohammad, the mastermind of the attacks. Our government could bring him to trial either here in the United States or in the Hague. It could use the trial to demonstrate not only the terrible hatred that drives Al Qaeda to murder so many innocents around the world. It could use a trial to reveal the depth and breadth of the ideological threat that we face in coming years. It could show how we can avoid such vulnerability in the future. A Khalid Sheik Mohammad conviction would be deeply meaningful and satisfying.

Best of all, it could demonstrate to the world that despite so much recent evidence to the contrary, the United States is a nation of laws and its governmental agents are not above either our laws or international laws. They whole world thinks we have given up on the concept of justice. We could use a decent trial to show otherwise.

The reason we have not done this may be very disturbing: in our haste to be brutal and stupid, we almost certainly tortured Mohammad, rendering him unconvictable in any decent court in any decent country. We have also held him and hundreds more for more than three years without counsel, without facing charges, without a chance to respond to accusations, and without even allowing their families to know that they are in custody.

So basically, we are unable to try the real killer, even though we know who he is and we have him in custody.

UPDATE: Mark Kleiman has more:

1. When Moussaoui was captured, there was some thought that he was centrally involved in the 9-11 plot.

2. Later it was discovered that he wasn't.

3. It was decided to put him on trial anyway, because we needed someone to try.

4. The central plotters (other than bin Laden) are all in U.S. custody, but they haven't been tried and won't be tried.

5. Top people on the President's staff (Gonzales) and the Vice President's staff (Addington) decided to authorize waterboarding and related methods of "aggressive interrogation" as applied to the top plotters.

6. Having tortured them, the Administration can't now put them on trial without having their defense lawyers put the facts about their maltreatment on the official record.

(Isikoff didn't add that, if the plotters were tried in civilian courts rather than by military tribunals, it would be almost impossible to convict them, since not only would evidence obtained under duress be excluded, but so would anything learned as a result. So the government would have to prove, with respect to each piece of evidence, that it hadn't been obtained, directly or indirectly, as a result of torture.)

So, in effect, the major plotters aren't being tried in order to cover up decisions made at the very top of the Bush Administration. Instead, the government tried to send a bit player to the death chamber, and the jury refused to go along.

Read to the bottom to get to Mark's idea for what we should do.

Tags: Khalid Sheik Mohammad, Zacarias Moussaoui, 911 attacks