No trial is the error for justice

IN “Silver Blaze,” one of the most popular of Sir Arthur Conan Doyle’s celebrated Sherlock Holmes stories, the following exchange occurs between the great detective and an Inspector Gregory of Scotland Yard:

Gregory: “Is there any other point to which you would wish to draw my attention?”

Holmes: “To the curious incident of the dog in the night-time.”

Gregory: “The dog did nothing in the night-time.”

Holmes: “That was the curious incident.”

The dog in question was supposed to be guarding the missing racehorse, Silver Blaze, and the fact that the horse was removed from its stable without the dog making a sound led Holmes to conclude that the silent canine knew the thief. A phrase extrapolated from the story -- “the dog that didn’t bark” -- now defines an informal category of forensic logic that discerns hard truth in a significant silence.

If you followed this week’s news reports on the confession given a military tribunal in Guantanamo Bay by the Al Qaeda killer Khalid Shaikh Mohammed, you may have noticed a peculiar silence among the usual media watchdogs.

Among all his various admissions, two were particularly chilling: One was his acceptance of total responsibility for the atrocities committed on Sept. 11, 2001. “I was responsible for the 9/11 operation from A to Z,” the U.S.-educated onetime engineer told the tribunal. The other was his pseudo-pious description of murdering Wall Street Journal reporter Daniel Pearl. According to the transcript released by military authorities, Mohammed told the panel, “I decapitated with my blessed right hand the head of the American Jew, Daniel Pearl, in the city of Karachi, Pakistan. For those who would like to confirm, there are pictures of me on the Internet holding his head.”

As you might expect, this confession set the pundit pack baying in full cry. We’ve now had 72 hours of faux-Churchillian fulmination on “evil” and “monsters” and “the clash of civilizations” and “a new era” that makes no allowance for the old-fashioned niceties concerning human rights and due process. But there’s a dog that hasn’t barked, and its silence speaks volumes concerning one of the American news media’s fundamental failures in covering the Bush administration’s response to 9/11.

Here you have a guy -- Khalid Shaikh Mohammed -- who has confessed to planning and directing the worst mass murder ever perpetrated on American soil and has admitted to personally murdering a U.S. citizen in what any reasonably aggressive American prosecutor would call a hate crime, and virtually nobody in the news media has called for putting the man on trial. Worse, virtually nobody has bothered to explain that the willfully erroneous way in which this administration has chosen to deal with the Al Qaeda prisoners from the outset has made it impossible to subject them to anything resembling the normative justice they so richly deserve.

Mohammed can’t be brought to trial because the White House had him tortured and, therefore, virtually none of what you read this week could be used against him in a legitimate court of law. In fact, who knows which parts of it are true, which parts of it were given simply to stop the water boarding -- simulated drowning -- to which he reportedly has been subjected, which parts are perverted bravado and which parts are an attempt to draw attention from other Al Qaeda killers still at large? In secret proceedings based on physical abuse, who knows?

But then, when it comes to this issue, the nation’s commentators and editorial pages have been derelict and complicit from the start. Their refusal to reject the White House’s various euphemisms for torture and evasions concerning the existence of a secret CIA prison system in which suspected terrorists and real terrorists, like Mohammed, have been tortured and held for years without lawyers or recourse to any legal process is a categorical failure of moral responsibility without recent precedent.

This institutional flight from responsibility stands in stark -- and humiliating -- contrast to the work of individual reporters at the Washington Post, New York Times, Los Angeles Times and other papers, who have risked prosecution -- and, sometimes, their editors’ displeasure -- to expose governmental abuses of human and civil rights in the “war on terror.”

There were a couple of quiet voices raised in defense of responsibility Friday. On The Times’ op-ed page, columnist Rosa Brooks pointed out that Mohammed is “not an ‘enemy combatant’ in a war, but a brutal criminal, someone who, as Human Rights Watch’s John Sifton puts it, deserves the same fate as ‘child molesters and serial killers’ -- ignominious trial and conviction.”

Paul Steiger, the Wall Street Journal’s managing editor, told Editor & Publisher’s Joe Strupp that he thinks Pearl’s killer “should be prosecuted under appropriate laws, he should be put in a position not to do this again.”

But what the nation’s editorial pages -- including the Journal’s -- failed to decry and what the print and electronic news media utterly failed to explain this week is that the vexing fact of Steiger’s wholly reasonable wish has been put beyond our collective reach by state policies the press failed to adequately expose and oppose. Mohammed, for example, has been in the CIA’s hands for all but six months since he was arrested in Rawalpindi, Pakistan. (For the last half a year, he’s been in the Guantanamo gulag, along with other so-called high-value detainees. The confession released this week was part of a proceeding held by an anonymous military tribunal before which he appeared without a lawyer and to which he was not allowed to call witnesses on his behalf.)

There’s a sinister hint of what went on during the previous 3 1/2 years that he was in American hands in written testimony the government submitted during the trial of terrorist Zacarias Moussaoui. In the preamble to what it says are various statements he allegedly made, the authorities note, “Shaikh Mohammed was captured in March 2003 and has been interrogated over the course of years on multiple occasions since his capture.”

Gosh, wonder what that involved?

We rely on our military for defense. We do not ask it to dispense justice on our behalf anymore than we should ask soldiers and Marines to act as police officers. That’s why we have courts and cops, and why our laws and, more important, well-established political tradition draw a bright line between their function and that of the armed forces.

We do not refrain from torturing criminals such as Khalid Shaikh Mohammed out of some misplaced fellow feeling for them, but out of respect for ourselves.

The general failure of the American media to note and defend those principles is something for which they ought to be held to account.

timothy.rutten@latimes.com