This morning, Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other 9/11 terrorist plotters will be tried in New York in U.S. District Court. This is a major reversal from the Bush Administration’s plan to try KSM and others detained at Gitmo through military tribunals.
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This is an all around bad idea.
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This whole decision is fraught with legal and public policy issues. I don’t know how long Obama, Holder, Craig and the rest of the legal team over at the White House have been thinking about this, but I’m not confident they’ve thought the whole thing through.
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First of all, I have no idea how Holder and the rest think they have enough evidence to prove any kind of crime beyond a reasonable doubt. I hope to see the charges and the indictments when they come down, because if they try and charge him with anything that could carry the death penalty, they are going to have serious problems with evidence admissibility. Under the Federal Rules of Evidence, you need to be able to prove chain of custody on physical evidence – and I don’t think the troops that caught him were worried about that. Further, none of the confessions he’s made in custody are going to be even remotely admissible. Regardless of the fact that he was never read his Miranda rights, he is the poster boy for “coercive interrogation.” He was waterboarded 183 times. Nothing he said is ever going to survive a motions hearing. So what kind of evidence can they possibly have? About the only thing I can think of off the top of my head they could remotely have a shot a proving would be conspiracy. And that’s not good enough.
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Charging these guys with anything short of capital crimes that carry either the death penalty or a mandatory life sentence without possibility of parole is going to cause outrage across the country.
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Finally, how does Holder think he is ever going to find a jury in the middle of New York (or even in the entire country)that is going to be impartial and hasn’t been tainted by pretrial publicity? The voir dire is going to be a circus. And while I’m the biggest fan and supporter of the jury system you’ll find, even I have my doubts about finding 12 people who are both capable of understanding the complexities of a trial like this and haven’t been paying attention to the news at all for the last 8 years.
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From a public policy perspective, treating known and admitted terrorists as if they are criminals is just bad policy. It lets the government act as though we aren’t in a war (which we are) and that we can handle this kind of thing like it was some kind of domestic act of terror. When we start acting like terrorism isn’t a real threat, we’re on the road to the pre-9/11 mentality that led directly to the deaths of thousands of innocent people. And, more fundamentally, KSM is not an American citizen. He shouldn’t, as a matter of policy, be granted the same rights as an American citizen – even a criminal. He’s not a POW either. He’s a terrorist. He should be treated like an enemy combatant. The military tribunal was the right way to go and there’s no legitimate reason for Obama to reverse that decision.
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So what are his reasons? I can only speculate. I haven’t seen any clamoring for trying KSM and the other terrorists in US courts. It certainly wasn’t a major issue during the campaign. Frankly, what this looks like to me is a smoke screen to cover the fact that his campaign to close Gitmo by January 2010 is failing more miserably than Deeds campaign for Governor. There’s no way for him to win on this. If KSM and the others are convicted, no one outside the United States will believe for a moment that the trial was fair. And if KSM and the others are acquitted, he’ll be faced with the dilemma of letting a known and admitted terrorist go (even if it can’t be proven in court) or holding him in contravention of a jury verdict (which basically causes a constitutional crisis). Either way, he loses.
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This was a rash, bad decision and not just for him, but for the whole country.
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Nov 13th by Brian S
Great…in the name of political correctness and appeasing left wing nut jobs, New York City now has to worry about bridges and buildings being blown up for the duration of the trial and beyond (more so than usual I mean).
“I have no idea how Holder and the rest think they have enough evidence to prove any kind of crime beyond a reasonable doubt.”
Ah yes, the ol’ beyond-a-reasonable-doubt standard. Always causes trouble when you wanna get the real bad guys executed, huh? I agree with you — we shouldn’t let silly Constitutional standards get in the way of prosecuting Evil Bad Guys. Who needs the Constitution?
Oh sure. It’s in the “general welfare” clause of the constitution. Holder thinks it’s good for New York to be at high risk.
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Holder should be put on trial!
Am I confused? He said the COLE bombers would be tried in military courts, because they attacked our military. Did everyone forget about the Pentagon? He claims to be the mastermind behind ALL of the 9/11 attacks. How is that not an attack against our military?
Silly Rabbit, first of all “beyond a reasonable doubt” is not a constitutional standard. It’s a common law standard. And it’s an exceedingly high standard that I don’t think Holder can meet because his capture wasn’t treated like a criminal investigation. KSM is guilty. He’s admitted it and no one seriously doubts he was involved. But whether or not Holder can prove it in court under our rules of criminal procedure to the extent that a jury will find him guilty is a whole other ball game. In our adversial system one can be “not-guilty” without being “innocent.” Look at OJ.
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Second of all, without evidence that can be corroborated in court under the Federal Rules of Evidence, Holder may not be able to even get the case to a jury.
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Like I said, the risks that this entails far outweighs whatever benefits Obama may derive from this politically.
Brian, this we agree on. Well said.
Brian S,
Perhaps we are just parsing words. The words “beyond a reasonable doubt” indeed do not appear in the Constitution, but that doesn’t mean the requirement isn’t a constitutional standard. If the Supreme Court says that something is required by the Constitution, it’s a constitutional standard. According to Apprendi v. New Jersey, the Constitution mandates that standard. Thus, it’s a constitutional standard (yes, a common-law constitutional standard).
The point I was trying to make is that the arguments made above are not consistent with a county based on the rule of law. I am aware of the evidentiary hurdles and the serious political ramifications of KSM’s trial. But a country governed by the rule of law simply doesn’t make statements like “well, since we can’t convict him on standards required by the Constitution, we’ll just ignore those standards, since he’s a bad guy.” That’s not law — that’s a show trial. It’s something that Iran, Saudi Arabia, North Korea, China, and Russia do. If one can just decide when the rule of law does and doesn’t apply (as apparently we are trying to do now), then the rule of law means nothing at all.
I posted something about this on my blog. Here’s my favorite part from it:
“Can you imagine what his attorneys will come up with? Among the most likely defenses: (a) post-partum depression; (b) it was another Ron Jeremy look alike; and, my favorite (c) it’s all a big misunderstanding – he was just trying to sell a screenplay.”
Note, too, Silly Rabbit, that KSM is not an American citizen and so not entitled to the protections afforded of American citizens.
This is one of the dumbest political and public policy decisions in a very long time. The down side is tremendous. This President is both a committed leftist and not that smart. Sorry, I am being redundant.
Silly Rabbit, that’s the problem with treating this kind of terrorist attack, and KSM as if it were a criminal act and he a mere criminal. It’s not a criminal act. It’s an act of war. If Obama wants to reconvene the Nuremberg Tribunal and try him that way, that’s fine. But trying him in an American court under American rules with American protections ignores the fact that this wasn’t a criminal act. It was an act of terror. It sends the wrong message.
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Do you honestly think KSM should go free if we can’t prove beyond a reasonable doubt that he committed the acts he’s admitted he committed?
“Note, too, Silly Rabbit, that KSM is not an American citizen and so not entitled to the protections afforded of American citizens.”
This is a false statement. Certainly foreign citizens are not afforded *all* protections afforded American citizens, but if you are a defendant in a criminal prosecution in this country, you are afforded certain rights without regard to citizenship. Among those are the presumption of innocence, the right to due process, and yes, the requirement that the prosuection prove all the elements of the crime beyond a reasonable doubt.
Brian S,
What is an act of “terror”? Is that like an act of horror? Or an act of happiness? If we’re going to have a serious discussion, let’s leave the inflammatory, nonsensical rhetoric behind.
Obama does not have the authority to convene a trial like Nuremberg.
Brian, I am astonished by your question. Let me rephrase the question so that you might see what astonished me: “Do you honest think [a criminal defendant] should go free if we can’t prove beyond a reasonable doubt that he committed those acts?” If we are a country that is based on the rule of law, the answer has to be yes. Of course, you acknowledge that he has admitted commiting the crimes. If this is a guilty plea case, it isn’t going to be that difficult as long as there’s a factual basis for the plea (at least that’s my understanding of the law on guilty pleas).
I should also add that if this was an act of war, that brought KSM a whole host of legal protections that have been ignored. If he gets off (which you and I both know he won’t), it will be the US’s own doing. No, of course I’m not saying the attacks are the US’s fault. I’m saying that if you ignore the law of due process, defendants (yes, even murderers and rapists and other awful people) get acquitted despite their horrendous deeds. Like you, I really hope that KSM isn’t acquitted. But just because he’s a disgusting human being doesn’t mean he shouldn’t get a fair trial.
Silly Rabbit, there are at least 22 different definitions of “terrorism” and terrorist act in the US Code. However, there’s no consensus on the definition, but like Justice White said about porn – I know it when I see it. If you think calling the 9/11 attacks an “act of terror” is an example of “inflammatory, nonsensical rhetoric” I really don’t know what to tell you.
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You don’t need to rephrase the question, just answer it: Do you honestly think KSM should go free if we can’t prove beyond a reasonable doubt that he committed the acts he’s admitted he committed? You dodged the question the first time.
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And no, the fact that I’m characterizing what KSM did as an act of war does not entitle him to any protections, since he is neither a guerrilla nor the member of a properly constituted force. He’s an enemy combatant, which takes him outside the Geneva Convention.
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I am not talking about murders, rapists, or other criminal defendants in the United States. No one is arguing they don’t have constitutional rights. This issue goes beyond questions of due process or the rule of law.
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And as for both you and I knowing he won’t get off, I don’t know that at all. Frankly, I can’t see how Holder is going to successfully win this prosecution. As I said before, there are too many procedural hurdles I just don’t think he can successfully jump. His defense attorneys will have a field day with this case.
“Obama does not have the authority to convene a trial like Nuremberg.”
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Not to be a stickler, but the folks who convened the Nuremberg trials didn’t have the authority to convene them either. But they did it. And some at the time didn’t think it was a good idea.
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They did it because they didn’t want those Nazis who had perpetrated such horrendous crimes to be regarded as merely representatives of a regime that had simply lost a war. And they wanted to draw a bright line between the tyranny they represented and those that would give even such heinous villains as they were the benefit of due process and an open and fair trial. To put it plainly, it demonstrated the difference between the good guys and the bad guys.
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It seems to me that these trials have the potential to demonstrate that to a good portion of the world once again. Closed military tribunals could never accomplish that. Especially with the controversy that surrounded the military tribunals for so long.
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God bless those tough military prosecutors and defense attorneys whose sense of duty wouldn’t allow them to be steamrolled into allowing those tribunals to become a mockery of justice. We owe them a great debt.
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We have tried terrorists in this country before. And we currently have terrorists incarcerated here. When did we become such a timid and fearful people that the idea of holding their trials and imprisoning them (should they not be executed) here makes us wet our pants.
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This is not bad news and it is not something to be afraid of. It has been more than eight years. It is past time for justice to be served.
Dan, the biggest difference between the terrorist we have tried and incarcerated here is that we generally catch them in the United States, and they’re caught by law enforcement, not the military.
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There are all kinds of issues that have to be addressed, which is the primary reason why they weren’t tried earlier. Justice would have been served just as well by following the original course with military tribunals.
Rabbit,
As Brian points out, KSM is an enemy combatant. He is not an American nor was he ever in America. Military tribunal is, as Brian well states, the appropriate tribunal.
i dont know if you guys have seen this but Sen Webb just came out against this by holder. http://hotair.com/archives/2009/11/13/webb-criminal-trials-for-911-terrorists-a-bad-idea/
Brian S and Lloyd,
KSM is not an enemy combatant. The term enemy combatant is no longer used. Granted, his status has not changed much, practically speaking. As for the Geneva Conventions not applying, that is a subject of some debate. Certainly, the US position is that they do not apply, but that’s hardly surprising given that the US is the interested party. Until this recent announcement, the US’s position was that no law governed KSM. That’s still their position for those held at Bagram. I guess I’m a radical liberal for thinking that a government can unilaterally declare that law doesn’t apply to anyone the government chooses.
Brian S, I did not think I was dodging your question at all. Let me answer it explicitly: Yes, if they cannot prove beyond a reasonable doubt that KSM committed those acts, of course he should go free. Like I said before, I am astonished that one could think otherwise. I’ll avoid a cliche Nazi comparison, but let’s face it: the position you are taking on this issue is the same position Stalin for the trials of the 1930s. Literally. By wanting to avoid trial because you think evidentiary hurdles cannot be met, you are attempting to stack the prosecution to preordain a result. Again, that is not law.
Silly Rabbit, it is beyond debate that KSM was the mastermind behind the 9/11 attacks. He has admitted this himself, and the admission wasn’t the result of torture. For him to go free simply because his investigation and capture were the result of military and intelligence operations and not a criminal investigation conducted by law enforcement, trained in the legal necessities of an American courtroom, would be an utter travesty.
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The fact that Holder has abandoned the use of the term “enemy combatant” without creating a new term that fits what KSM is doesn’t mean the term is no longer used. Until the Obama Administration figures out what it’s going to do with the detainees at Gitmo, I think the label applies.
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There’s nothing Stalinist or facist with wanting to ensure that KSM does not end up back on the street, plotting the deaths of more Americans.
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It’s also funny that we’re giving KSM more protections and a greater chance at acquittal than he would have in a Sharia court.
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Hopefully he’ll plead guilty and this whole issue becomes moot. But I hope Holder and the President aren’t playing a game of chicken with him, either.
brian s, silly rabbit & dan: you have all, by your discussion here, summed up why KSM should not be tried in this country: 1st: the conversation about whether he should be tried here at all creates controversy & 2d: no one can agree as to whether KSM should be allowed all the other rights a US Citizen has or whether he should go free if acquitted by a judge/jury (I love my Constitution, but a proud & enthusiastic confessed killer of 3,000+ people should not go free).
I hope he gets a speedy trial, and walks. That would kill the Democratic Party in America for at least the next 20 years, and would make for some killer 30 second spots (pardon the pun).
Cato
I don’t think the thirty second spots wil be necessary. All elections will become single candidate,
Rabbit, the fact is (no matter how much you would like the rest of the world to join hands and sing “Give Peace a Chance” together) that might makes right in the international world. KSM is not an American and thus not entitled to constitutional guarantees. MOreover, he is not a “civilian” such that he should be tried for his plots against America in a civilian court. You do realize, of course, that in a best case situation he will not be executed for at least seven years at a cost of at least $25 million, if John Muhammad is any indication.
Cato, that won’t happen in any event. You think that they will let him walk?
Never gonna happen! What Obama, Holder and company want to do is expose our methods, go after Bush, and generally embarass the United States. This reaches the Cinstitutional argument for TREASON in many people’s minds…even Webb is leaning this way.
And everything that was mentioned about New York City’s elevated security risk is spot on. They are a primed candidate for another attack that can surpass the notoriety of the first attack by sixfold if they’re hit DURING this retarded trial.
If they are truly being afforded the same protections as anyone else, then the trial won’t be held in New York, not with a competent defense attorney anyway. No way are they getting a fair trial there. Nor would they get one anywhere else in the country, truth be told. So I think right off the bat, they’re not getting the “same protections as anyone else”.
As for high-priced attorneys, 2 things could happen; they could get one, but the funds to pay him could be linked to terrorism and frozen; or some idiot will do it for the publicity. I guess the third is some idiot will do it for the same reason John Adams once defended redcoats who fired on Colonial civilians.
That said, all the high-priced attorneys in the world aren’t going to change the fact that no jury is going to let this guy walk, even if there’s one guy who puts up a “12 Angry Men”-quality argument, the other 11 aren’t going to move. Which could mean multiple trials over a course of years. If by some miracle any of them *do* walk, chances are they’ll be shot before they can get to the limo…
Finally, even if somehow they did get off, I’d put it at 500,000 to one, mimimum, that someone *doesn’t* shoot them the minute they walk out of the courtroom. Then there’s the old, “good news, you’re free to go”…and enjoy the next couple months cause you’re going to die unexpectedly any day now…
Wow, the people on this blog are showing their true colors. Kelley, you perhaps stated it most explicitly: the Constitution doesn’t apply when you don’t want it to. How convenient! It is a sad day when the liberal position is that the United States is governed by the rule of law.
Brian S, I agree that it would be a travesty for KSM to go free. I’m a little confused as to the legal principle you’re relying on, though. It sounds to me like would-be-a-travesty-for-this-person-to-go-free = automatic imprisonment. Do you have a cite to the U.S. code for that? The Constitution? Anything? I’m a little baffled that you had the audacity earlier to lecture me on the law of what constitutes a constitutional standard, given that apparently you don’t believe law applies to bad people.
Brian S, yes of course he would have a greater chance of acquittal than in a Sharia court. That’s because those courts are barbaric institutions. Are you suggesting we institute Sharia law in this country?
You are right, there is absolutely nothing Stalinist about not wanting KSM to end up back on the street. What is Stalinist is the belief that we should have a pre-ordained outcome to a criminal trial. That’s your position. Your position is unequivocally Stalinist.
Lloyd, again I will tell you: Just because you believe something to be the case doesn’t make it so. You can say statements like “KSM is not an American and thus not entitled to constitutional guarantees,” but that doesn’t make them true. That’s simply a false statement — it has no basis in reality. Every court in this country would disagree with your statement. Before you make up law again, go read a Supreme Court case.
This decision to bring these terrorists onto US soil is stupid beyond belief. What in hell is going on here? What are we trying to prove?
What lawyer(s)will take on the job of defending these killers? Don’t answer that one….
What is it going to cost to provide the security that will be necessary and where is the money coming from?
Where are these terrorists going to be housed while awaiting and during their trials?
What will happen if, God forbid, they “walk” because of lack of reasonable doubt or? Will they just be allowed to walk out of the courtroom into our society?
This has to be the dumbest action taken by this administration so far–and there’s a long list of dumb actions. This is incomprehensible.
Silly Rabbit, my position isn’t anything close to “we should have a preordained outcome to this trial.” My position is that we should have left this prosecution up to the military tribunal that we had already set up and which KSM was talking about both representing himself and pleading guilty so as to get the death penalty.
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Until KSM touches US soil, he has federal habeus corpus rights, but that’s it. Boumediene v. Bush. Once he touches US soil, he has all of the rights any other citizen or non-citizen would have, particularly the criminal procedure protections. Wong Wing v. United States. This is why we shouldn’t be bringing KSM and the rest to U.S. soil, and instead try him at Gitmo, under a military tribunal, where the rules of evidence aren’t as strict. He can still get a fair trial there. There’s no need to bring him to NY. This is, at best, a political stunt by the President with no real upside. I’m convinced now that Obama expects KSM will plead guilty and there won’t be a need for a trial.
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If that’s audacious, well, I guess the President and I have something in common.
KSM and his fellow travelers are not soldiers, they are criminals along the likes of Charles Manson, Ted Bundy, and John Allen Muhammand. Putting them thru a military tribunal allows them and their fellow travelers to say they are soldiers in a holy war.
Bringing them to trial in the US, especially NYC, is a sign of national strength not weakness. Americans, especially New Yorkers, know how to take care of themselves. Most of us are praying that their guards turn their backs for a few minutes so we can apply our own brand of justice on them.
Only those who have never had to supply protection to an area or people , as well as being completely blind to terrorists mentality would offer this as wise. They demonstrate their DEFINED grasp of the subject matter everytime they type.
Brian S, a bare confession, without corroborating evidence, is legally insufficient to support a conviction of a crime. A purpose of that rule is to prevent whackos from “confessing” to crimes which they did not commit.
Also, there is a legal principle, called the “fruit of the poisonous tree,” which forbids the prosecution from using ANY evidence obtained following an illegal search or an illegal interrogation. (There is at least one exception, if the court or officers acted in good faith.) Since every namby pamby is saying that the waterboarding was “torture”, the interrogations of him will be held to have been “illegal” and all evidence and statements taken from him will be held to have been illegal and inadmissable under the Exclusionary Rule as being “Fruit of the poisonous tree [in this case the poisonous tree is the illegal interrogations].
Further, I’m sure that they court will rule that the defendant was entitled to have his “Miranda Rights” read to him. They don’t have a seperate set of laws for aliens. If you are tried by a federal court, you get the same set of laws applied to you as everybody else. Since his “Miranda Rights” were violated, again, the Exclusionary Rule applies to prevent his confession–or any evidence thereby obtained–from being introduced into evidence.
Elections have consequences. Obama is an inexperienced socialist agitator. We are sooooo scaruuued.
Doe…
I’d like to take this opportunity to agree with you…for once. Mark it down for posterity.
I follow everything you said, and believe it to be true.One thing puzzles me, however. How can a competent (A)ttorney (General)say that he’s sure he will get a conviction….if he hasn’t yet addrerssed your specific points?
It appears to me that Holder just jaded the pool of jurors for such an undertaking…or he’s dumb enough to have overlooked your excellent points…or maybe…he just wants to embarass the Bush Administratioon, irrepairably damage our ability to engage terrorists, or let these turds off when the case is lost.
John Doe, I’m glad to see we can at least agree on this. And I’m glad that my reading on the law was accurate. I’m still in school, but I do pay attention in Crim Pro.
John Doe,
You assume incorrectly that the only evidence against KSM is evidence obtained from waterboarding him. Do you seriously think that without that evidence (which no of us is privy to), there is no evidence with which to establish a factual basis for his guilty plea? How do you think they caught KSM in the first place? It wasn’t by randomly catching him on the street and then waterboarding him 183 times to find out who he was. They obviously have evidence against the man independent of evidence obtained illegally. If they didn’t, why is it that all of us speak so certainly that he did the acts we claim he did?
So, silly rabbit…did they read him his Miranda upon entering Cuba?
You should probably sit back and let the adults talk for now.
I’m also wondering if there might not be a legal separation point somewhere between the evidence against KSM with regard specifically to 9/11 and the waterboarding. If solid 9/11 evidence against him was already in hand, the waterboarding might have been to: (1) identify other members of his organization and their specific locations; and (2) to find out if any further attacks were on the al-Qaeda drawing board and to get as many details as possible about them as a preventative measure. It could be that such a separation point was part of Holder’s thinking with regard to this particular case. I just hope he hasn’t miscalculated. You also have to hope that any “solid 9/11 evidence” does not compromise the sources and methods by which it was obtained, especially through revelations which might allow al-Qaeda to track down any humint sources involved. Mistakes here could prove to be deadly in the literal sense of the word.
Bulletproof Monk,
I’m glad you asked. Yes, actually they did read KSM his Miranda rights in Cuba. And he confessed *again*! In the future, before you say something condescending like “you should probably sit back and let the adults talk for now,” you might want to make sure what you said immediately prior wasn’t incorrect. Might make you appear a little foolish.
Why in the world would they read a non-American his Miranda? Do you have proof? Cite the proof, if so.