Obama Prepares to Sacrifice Justice and National Security for Political Expediency
Check out the way the WaPo reports the news–based on three anonymous Administration sources–that Obama will be personally involved in choosing the location of the Khalid Sheikh Mohammed trial.
President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001, attacks, three administration officials said Thursday, signaling a recognition that the administration had mishandled the process and triggered a political backlash.
Obama initially had asked Attorney General Eric H. Holder Jr. to choose the site of the trial in an effort to maintain an independent Justice Department. But the White House has been taken aback by the intense criticism from political opponents and local officials of Holder’s decision to try Khalid Sheik Mohammed in a civilian courtroom in New York.
Administration officials acknowledge that Holder and Obama advisers were unable to build political support for the trial. And Holder, in an interview Thursday, left open the possibility that Mohammed’s trial could be switched to a military commission, although he said that is not his personal and legal preference.
“At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it’s done as transparently as possible and with adherence to all the rules,” Holder said. “If we do that, I’m not sure the location or even the forum is as important as what the world sees in that proceeding.” [my emphasis]
The WaPo’s sources say this “triggered a political backlash” and that they’re involving Obama because they’re “taken aback by the intense criticism.”
It’s not until the 16th paragraph of the article that the WaPo reports the big reason why Holder originally chose a civilian trial (and therefore, for security reasons, NY): because it stands the best chance of success.
In his interview, Holder reiterated his belief that a civilian trial would be the best legal option for Mohammed. “Trying the case in an article III court is best for the case and best for our overall fight against al-Qaeda,” he said. “The decision ultimately will be driven by: How can we maximize our chances for success and bring justice to the people responsible for 9/11, and also to survivors?”
Instead of focusing on what the best policy decision is–the many reasons why an Article III court is more likely to lead to an uncontested verdict and closure–the WaPo focuses instead on who bears the blame for not dealing with the politics of the decision.
Managing the politics of terrorism has not been assigned to one person at the White House. Many people are dealing with the issue of the trial, including Chief of Staff Rahm Emanuel, National Security Council Chief of Staff Denis McDonough, deputy national security adviser Thomas E. Donilon, senior adviser David Axelrod and White House press secretary Robert Gibbs. Increasingly, Phil Schiliro, the head of White House legislative affairs, has worked on building support in Congress. The new White House counsel, Bob Bauer, is also managing “a central piece of it,” one senior White House adviser said.
Now, I don’t necessarily fault the WaPo for this focus. After all, horserace is what it does. But the story itself is just one piece of evidence that the Obama Administration continues to mishandle this issue.
This is a question not only of justice, but really, of whether military commissions will work. There’s little evidence they will, and much reason to doubt it. But instead of telling that story, the Obama Administration has now turned this into another example of back-room deal-making rather than the most effective solution.
Why is Mr. Constitutional Scholar backpedaling on Justice Department independence? He is an idiot to get involved. The sooner he grows up and stops trying to please his Republican daddies the better off the republic will be.
Worse, by caving to those trying to politicize this rather than going on the offensive (presumably bc those put in charge of this either can’t or won’t go on the offensive) he’s allowing people like Scott Brown to turn it to political advantage. By NOT making the argument about why a civilian trial is necessary, they’re going to lose long term.
Perhaps that’s always been the point – to preserve the status quo.
Status quo being defined as continued rule by the oligarchy, with bread and circuses to distract the slaves.
“There’s free as in speech, free as in beer, and free as in range. Americans are ‘free’ in the latter sense.”
Obama has certainly cheapened himself by his latest reference to bank executives as “savvy” and otherwise entitled to bonuses of their choosing. Obama seems to have a way of inserting himself into controversies with what could only be called sideline comments. He does not appear to be in the game. Too bad.
I’m trying to make a list. It’s called “Things the Republicans have Criticized Obama For that He’s Not Capitulated On”. I’m having a hard time coming up with anything. By “anything”, I mean ONE thing.
Well he’s not a birther.
von Spakovsky
This is one of those moments when Eric Holder and his top aides need to send a Comey message. Stop it or we quit. Otherwise, Holder is just the guy at the front desk, pretending to do the work that’s really done by important people in the corner offices across town.
Chickenshit.
Distilled to a single word.
Precisely so, Loo Hoo.
DW
This is ridiculous! It’s not up to the White House to decide this. It’s not up to the New York politicians, either. It’s up to the DOJ, at least to start. The federal court in New York City is the right place. New York is where the crime occurred. If they want to request a change of venue, that’s ok. But that happens after the case gets started. Changing the venue for political reasons or because the nearby business’s complain about traffic problems or security just shows you can be bullied successfully.
Actually, it is up to the court to decide where it convenes. The DOJ is obligated to file charges in the jurisdiction the overt crimes were committed in, and it is up to the court itself to decide where its sessions convene.
Holder could have filed in Washington DC as well as Penn, no? I suppose NY is as good a choice as any.
Boxturtle (Could maybe have filed where the aircraft originated, too)
That’s what I thought. How, then, does Obama inject himself into the decision about where to conduct the trial?
Bob in AZ
He didn’t. This was all Holders decision, in consultation with career DOJ professionals. There was no political discussion at all.
Boxturtle (stop laughing, dammit!)
I’m curious. Did you actually read the top post? Specifically, the second half of the lead sentence? I’ll quote the sentence for your convenience:
So, how does he do that, since other people are the ones with legal responsibility for those decisions?
Bob in AZ
He does it as Commander-and-Chief by doing military tribunals, which it looks like he’s painted himself into a corner for that.
‘Twas “snark” the Turtle was making, methinks, Bob.
Prolly laughing, still.
(I don’t know what happens when turtles cry, but the Box is likely as close to disgust as you, mere frustration being inadequate.)
Just a guess.
DW
Obama is making a stupid mistake. He is giving credibilty ot those who would politicize this trial. He is validating them
Behavior quite typical of of the man and it ought to worth an A minus the next time Obama grades himself, one imagines, Cynthia.
Thanks! The charges are filed, right? So how do we get the courts to ignore all these politicians trying to but in?
Actually the “crime” could be placed in several state venues (New York, Washington D.C. Pennsylvania, and Massachusetts- where the hijackings commenced). Since it is a Federal case the venue could occur anywhere within the jurisdiction of the US Atty. where any of those crimes are located…based upon the needs of security, staffing, and fairness (jury selection).
BTW Does anyone know why the Nairobi and Dar Es Salaam attackers were tried in New York?
I would think that, given the “notoriety” of the crime, having the case tried in the very same borough (in facts blocks away from a very visible site) where the crime occurred might actually produce issues related to bias in the jury pool. There were be constant reminders of the acts and this would lead to a lack of dispassionate decision-making on the basis of the jury, and constant montages of the attacks on local news. “Just five blocks from the site of the 9/11 attacks….”…”Khalid Sheik Mohammed was today driven by the effects of his handiwork….” blah, blah, blah.
Better to have the trial moved to upstate New York or even Pennsylvania.
Obama has once again put himself, his administration and the Democratic Party in the position of being able to fold like a cheap lawn chair to GOPer scare tactics.
And these folks wonder why they are viewed as “pee-pants pussies” on national defense issues while continuing to lose the support of the American people.
Thanks Mr. Obama, thanks a bunch…
Thanks for pointing out the self-referential character of the “political backlash” and “intense criticism”. It comes from people, presumably including the WaPoop, who would disagree with Obama about the time of day or the correct reading the DC Metro schedule. Why the president or Mr. Holder’s choices should be dictated by its non-absence over such a hot, but routine prosecutorial issue escapes me.
In any case, Mr. Holder’s job is to enforce the law, not to manage the president’s political enemies. He should be concerned about which of several possible USA teams and which federal court venue would give him the best chance of success, not whether he should attempt to use a possibly illegitimate and unwise military commission that the rest of the world and a good chunk of the US would consider a kangaroo court (notwithstanding that chances of conviction are higher in federal court).
The accused is a foreign national who is alleged to have committed a crime on board a US flag air carrier and who was apprehended inside the United States. Fox Noise and Newt Gingrich’s blather to the contrary, the accused is entitled to the full measure of constitutional protections because of those facts, not because this president is alleged by his opponents to be “soft on terror”.
An American apprehended in such circumstances in France, the UK or Canada would expect and we would demand comparable treatment. It is the location of the alleged crime and arrest that trigger applicable laws and dictate the proper court venue, not the political problems a president has in putting his pants on or in dealing with an irresponsible opposition that he refuses to call irresponsible.
Why allow these assholes to claim they are right when they are so clearly wrong?
Just when I start to think further disappointment is not possible…..
The behavior of this administration adds to the shaming of the American people on the world stage.
You were not originally from west of Phoenix and then Tucson at some point were you by chance?
Nope not me. I was in Nogales once. I spent almost 8 years of my life in the military. Perspective only comes from being able to see on a wide scale. It truly seems to me that on a world stage the US is deliberately being denigrated by actions that are largely with held from the American view by the lack of coverage by our MSM.
One outrage after another. It really does make you just want to shut off all news sources. In my wildest dreams, I couldn’t have imagined this level of disappointment in a Democratic administration. He says he has no ideology, I say he has no principles.
Mr. President, this is not a time to sit down with Dr. Gates and a police officer to settle a misunderstanding over a beer. It is a time to let justice – via the apolitical decisions of a credible DoJ [sic] – be done and to let it be seen to be done. Manage yourself and your government first. Having done that, managing your political opposition is a lot easier.
Mr. Obama often acts as if he believes that his world is bounded by the Potomac and starts and stops on both ends of Pennsylvania Avenue. That’s a myopia that causes him to stumble needlessly and, thereby, to do great damage.
Micro Manager in Chief. He reminds me of bad bosses and bad school principals who nit pick and insert themselves in ways that never solve the problem. And to those who believed that this guy was playing chess? I don’t think he knows how. He should stick to Chutes and Ladders.
And we have to stop referring to him as a constitutional scholar. A scholar publishes reports and writes books in which he/she examines a part of their field. Obama writes about himself and politics. I don’t recall reading scholarly publications on the constitution from him. School papers don’t count.
Eric Holder needs to stick to the law and tell Obama to take a trip or give a speech and live justice to him.
“Those who can ~ do. Those who can’t ~ teach.”
Different clown ~~ Same circus. (:>
It seems to me that KSM must be entirely pleased that he continues to disrupt the functioning of the US government even from behind bars.
The goopers, who demanded loyalty to BUSHCo on NATSEC ussues during his tenure, have broken with that and they are helping the enemy.
Dissent is a good thing. Hypocrisy should be exposed.
But even the Goopers must see that they are just helping Al Q and hurting the country.
Try him in the courts and hold it at a military base. Though as John Stewart says, nothing would make most NYers happier than to have the bastard tried in the City.
what is becoming highly predictable behavior for president obama is an unwillingness,
displayed time and time again on issue after issue,
to publicly articulate a strong positive argument for taking positions or enacting policies that he surely knows are both necessary and reasonable.
this guy, our president, has a serious problem with conflict avoidance.
The tragedy here is that a Constitutional scholar can’t distinguish between a matter of legality and a matter of politics. Had he let Holder handle this and explained that it is a legal issue that should not be politicized, he might have gained some credibility. Now he just looks like another craven politico driven by headlines and polls.
I know bmaz disagrees with me, but barring a full confession in court by KSM (which they might get) I don’t think they can get a conviction.
A decent defender could get any evidence obtained after KSM’s capture tossed as tainted. Ditto any evidence obtained from anybody the government was holding.
That doesn’t leave much. The entire idea behind the military comissions was to allow evidence that a real court would consider tainted. And to avoid having entire cases tossed due to detainee treatment.
That said, while I have serious problems with his ethical standards, Holder is a decent lawyer. He wouldn’t have moved any trials to real court unless he was confident he could get a conviction. And also confident that he could prevent embarassing information from entering into the public record.
I wish I knew if this was about money, politics, or getting a conviction. Because I can see ObamaCo letting themselves be forced back to military commissions if they suddenly realized that their odds of winning were not good. Or if they realized it was the more popular way to go. Or if they could get something in trade from Intelligence committee members or ex-members who fear their own parts becoming public.
Boxturtle (Can’t see them doing it just because of trial costs)
Why do yu say Holder is a decent lawyer? How many cases has he tried? Holder strikes me as just another large law firm partner paying mostly a political game inside and outside of his law firm. Remember it was Holder Lewis Libby and the Clintons who came up with the Marc Rich pardon. So I don’t think Holder is much of a thinker.
What was the last case tried to a verdict by the USA in New York that was anything other than a gimme? When the government proceeds to trial it is ussually with overwhelming admissible evidence. It has been likely determined by DOJ that KSM has made many admissible admissions separate and apart from the torture admissions.
I didn’t say “god-like” I said decent. There are other flavors of lawyer than the ones that argue cases in court. A corporate lawyer writes contracts with the express idea of keeping his clients out of court, for example.
Holder knows the law, knows legal procedures, and he does his homework. He’s certainly smart enough to be able to understand rules of evidence and he’s got a team of lawyers help him through any weedy details.
ObamaCo hates political risks. So if he moves a case to a real court, he and his team should be pretty darn confident that the risk of losing at trial is minimal.
I haven’t seen his KSM “untainted” evidence. But if KSM decides to fight, you can bet every iota of it will be challenged.
Boxturtle (I should add that IMO Holder is a political hack as well)
Boxturtle,
IIRC, they got a bunch of evidence against KSM that goes back before his capture, and does not depend on anything he’s said since his capture. KSM was not a newbie in terrorist circles at 9/11.
Bob in AZ
Who’s evidence? CIA? We’ve seen what their evidence is before. Usually it’s called BS. Remember the UN fiasco with Powell? Totally believable evidence there.
“Who’s evidence? CIA? We’ve seen what their evidence is before. Usually it’s called BS. Remember the UN fiasco with Powell? Totally believable evidence there.”
KSM was indicted by a NYC Federal Grand Jury in 1998, at about the same time that they delivered up an indictment of bin Laden. He was indicted for the Bojinka Plot of 1996, for planning to assassinate the Pope and Bill Clinton, and for the death of a Japanese Businessman on the plane that was a test of a liquid bomb — same evidence that was used to convict Ramzi Yousef, his cousin, in NY Southern District Federal Court.
The FBI sent a team to Qutar to arrest KSM, who was then hiding out and working in the Water Department of the emerate, but one of the royal princes got word of the FBI’s arrival, and KSM was helped to excape.
The FBI also has a many hours long recorded interview KSM did with an al Jazzira reporter in his safe house in Karachi in early September, 2002, which is a very detailed hours long Q & A as to the exact details of the planning and execution of 9/11. They have had that tape since about a week after the long interview. The interview was conducted about 6 months before KSM’s arrest.
Sara,
Thanks for having the patience to explain to the untutored the state of the evidence. The evidence you cite is what I had in mind, but did not know sufficient details to recite myself.
Bob in AZ
Uh huh. Totally believable. Just like all those terrorist Taliban that are being killed as we speak in Afghanistan. The government sponsors this kind of crap worldwide. If this is “proof” of his guilt, who gives us the moral right to even put him on trial? That is sheer hypocrisy. If this man is guilty of killing anyone, and there is a need for justice, where is the justice of the US killing millions? You can’t have one and not the other, regardless how moral one feels. That isn’t justice, it’s one sided legal BS.
“Uh huh. Totally believable. Just like all those terrorist Taliban that are being killed as we speak in Afghanistan. The government sponsors this kind of crap worldwide. If this is “proof” of his guilt, who gives us the moral right to even put him on trial? That is sheer hypocrisy. If this man is guilty of killing anyone, and there is a need for justice, where is the justice of the US killing millions? You can’t have one and not the other, regardless how moral one feels. That isn’t justice, it’s one sided legal BS.”
Well, in the real world, that is just BS rhetoric. The point of the trial is narrowly drawn — Did KSM participate as a planner in the attempted assassination of the Pope, President Bill Clinton, the real murder of one Japanese Businessman, and then the roughly 3000 people who died as a result of 9/11. That’s it. Evidence that the US Government participated in something else evil is irrelevant to the charges. In the language of the courts it is not material to the case at hand. You might want to take a look at some of the Rules of Evidence that apply in Federal and most State trials.
As to the current offensive in Afghanistan in Helmand Province, I would suggest picking up Gretchen Peters recent book, “Seeds of Terror: How Heroin is bankrolling the Taliban and Al-Qaeda” St Martins Press, 2009. Peters has spent years in Pakistan-Afghanistan reporting first from the war against the Soviet Occupation in the 1980’s, then from the years of Taliban Rule, and finally in recent years since 9/11.
What she puts forward in her recent book which covers all this reporting is that in the last four years or so, the Taliban and Al Qaeda have become less an Islamist motivated organization, much more a piece of a vast international Heroin and Money cartel with world wide scope. 90% of Afghanistan’s Heroin comes from Helmand, and Afghanistan’s Heroin is about 90% of the world’s supply. Those who benefit are the upper reaches of the cartel — not the farmers who barely scrape by. The real money center is in the Gulf States, and in some reaches of the Pakistani upper class (Military, Political and ISI,) as well as gangs initially based in India, but long since re-located to the Gulf and Pakistan.
Peters has mapped out the Heroin business in much detail. She estimates that the Taliban (they mostly make their money moving the opium base from the farms to the labs, providing armed protection, and then move the finished Heroin out of the area into the transit points (Iran, Karachi, the Gulf) and enforce the orders to the Farmers to grow Poppy instead of wheat (they would make more money from wheat given what they are paid for Poppy). She also has mapped out the money tree — for instance did you know that a couple of the major money men in the cartel were captured by the US in recent years, brought back to the US, convicted in our Criminal Courts on all this, and have provided considerable intelligence as to who is who, and how this all works.
Anyhow, the offensive in Helmand is about taking out the town, Marjah, where numerous labs are located, and where the Taliban transit system is centered. Peters also believes that the Marjah area holds about a two years supply for the world of either unprocessed Opium Base and/or finished Heroin. It is one of the key warehouses. Karchi and the FATA have others. The point is to disrupt totally the Heroin Enterprise — and going after warehouses and manufacturing and processing is step one in the whole approach.
Peters contends with much evidence that Afghani Farmers want to get out of the Opium Poppy business. They don’t like the Taliban ordering them at gunpoint what to grow, and then paying them chicken shit for the product. They also don’t like the fact that the toxic chemicals used in processing Heroin have poisoned their water supply, killing their animals, and families. One one level they don’t like the foreign military, but they also want the Americans to stay, and rid them of the Taliban Drug Industry, and bring back good wheat seed. (The US built the Irrigation systems in Helmand back in the 1950’s and 60’s, built the Agricultural College in Helmand, had Peace Corps in there between 1962 and 1972, and built the roads and damns that produced electricity. — we actually have a base to build on in Helmand.) (I suppose I should add here that during the summer of 1962 I had a job on the staff that trained the first Peace Corps group that went to Afghanistan — to help staff that Agricultural School I mentioned above. Most of the PCV’s were American kids with a degree in Agriculture, early 20’s mostly except for a small group of mechanics who were going to teach diesel engine practice (water pumps and such) who had responded to JFK’s visions. Got the job because I had worked the previous year for another organization that trained the first group of PCV’s for what was then called East Pakistan. Anyhow, learned a little about the obscure matter of Agriculture in Helmand Province that summer, enough that I tend to pick up and read anything new about it all over the years — and one thing that impressed me about Peter’s book was that she actually researched this stuff, and put it in her book. Helmand is the breadbasket of Afghanistan — and what has happened to it is as if the Mafia took over Kansas and forced the farmers, at gunpoint, to grow poison.
I hope the offensive followed by intensive rebuilding works, and I will be following it closely.
What you recite seems like a promotion out of the State Department for the unending devotion of the US to the betterment of the world. It is very likely a bunch of crap.
You would have us believe that for the purpose of ridding the world of opium the US has sent some 130,000 troups to interdict this trade, as if the US could give a shit who grows drugs. Or doubly gave a shit about the plight of poor Afghan farmers.
Of course by sheer coincidence there also happens to exist the enticing fact that a pipe line for natural gas and oil could afford untold wealth if it were to pass through Afghanistan to the open ocean, and were controlled by the US. American companies have had their eyes on this prize from the time this stash of natural wealth was found and have prompted the US government to fight for it at the expense of creating Mujahadeen fighters motivated to bomb New York.
We have had quite enough of tales that paint the US as motivated in their invasion of other countries by the purest of reasons and only inadvertently ends up killing off their popuation.
I think when you compare the motivation of the Russians who were invited to defend a regime who was allied with them they could make a better case for intervening than the US. And in the process they did a good deal more than the US to improve the lot of Afghan women while they were there.
Um, no she is correct about the likely scope of the trial. Helps to know what you are talking about before you tell people they are full of shit; you don’t.
“You would have us believe that for the purpose of ridding the world of opium the US has sent some 130,000 troups to interdict this trade, as if the US could give a shit who grows drugs. Or doubly gave a shit about the plight of poor Afghan farmers.”
No, I did not suggest the point of the current strategy was to deal with Opium. What I did say is that the support for both the Taliban in Pakistan, the Taliban in Afghanistan, Al-Quada, (and other parallel groups) is a merger of interests and the forces they command that provides the financial support necessary to their purposes. US interest are not about who is using drugs — the interests are focused on the profits from drugs corrupting weak states. And it is not just US interests — this is something that gets very broad agreement. When as Peters estimates about 40% of the profits from 90% of the World’s Heroin enterprise is spent in the illegal arms market, with the arms used to destabalize any number of states — this is quite a different issue. It is much more about affecting the drugs=arms equations than it is about any particular attitude toward drugs themselves, or the welfare of Afghani Farmers for that matter.
“Of course by sheer coincidence there also happens to exist the enticing fact that a pipe line for natural gas and oil could afford untold wealth if it were to pass through Afghanistan to the open ocean, and were controlled by the US. American companies have had their eyes on this prize from the time this stash of natural wealth was found and have prompted the US government to fight for it at the expense of creating Mujahadeen fighters motivated to bomb New York.”
You are very much stuck in 1980’s thinking on the matter of pipelines. The market for what Afghanistan can generate, (or given recent promising explorations might generate) is probably China and/or India — not the US.
If any pipelines are built, someone is going to have to finance these, and given the current state of things, it probably will not be the US, or any European Corporate Interests. The Raw Material (oil and gas wellheads) is located about 350-400 miles from the existing pipeheads in both India and China, and I suggest they will find it in their mutual interests to build them once Afghanistan is stable. But no one is going to invest in or build any pipelines across that terrain until political stability is a reality.
“I think when you compare the motivation of the Russians who were invited to defend a regime who was allied with them they could make a better case for intervening than the US. And in the process they did a good deal more than the US to improve the lot of Afghan women while they were there.”
I would suggest the motivations of the Russians in 1979 had a great deal to do with the Sino-Soviet split of that period. Afghanistan, as with other South Asian Nations such as India and Pakistan, had two Marxist parties, one aligned with the Soviet Union and classic Marxist-Leninism, and the other influenced by Mao and China. The Soviet intervention had a great deal to do with cutting the increasing influence of Maoism off at the pass, particularly given that China and the US had recently settled some of their hash, and the Soviets were interestecd in thwarting Chinese strategy. The Soviets also were concerned about Islamist influence in their own Islamic Republics, particularly as it countered the basic tenets of Marxist-Leninism. I don’t think they cared a fig about the role of women in Afghanistan. (Can’t you just see the pre Gorby era politboro in the Kremlin sitting around discussing Afghani Feminism?) If you read their transcripts which have long been published, you will see the Brezhnev politboro consumed with sending messages to “their people” in Herat to mobilize the worker’s organizations against Iranian influence. They didn’t know that in Herat there were no neatly conceived labor unions or worker’s movements. It isn’t just the US that paid little attention to the work of Cultural Anthropologists who sometimes properly mapped cultures. From what I know of what we included in training for Peace Corps Volunteers going to Afghanistan circa 1962, I would suggest our experts had a pretty good idea there were no labor unions in essentially feudal Afghanistan.
It’ll be challenged. A good defense atty would put the government on trial, show a pattern of lies and deceit in this area when dealing with this subject. Including lying in court filings, lying to our allies, lying to congress, and lying to the United Nations.
Boxturtle (And did I mention lying in court filings, Your Honor?)
BOx Turtle, don’t forget, the prosecution should be sitting on a signifigant body of evidence that pre-dates KSM’s capture.
All untainted and usable
Correct
Wow, have the utmost faith things will be handled correctly now that Obama is personally handling this.
Out of curiosity, what do you guys think of this
http://news.cnet.com/8301-13578_3-10451518-38.html
The problem they have here, is that the ONLY evidence they have, is tainted. So, hey, maybe the guy isn’t guilty. Public trial or not is irrelevant really. It would be nothing but more of a political dog and pony show. If they want a guilty verdict, military tribunals are the way to go because nothing would be made public and nobody would be the wiser. Having said that, they could broadcast the trial on all the national networks and it wouldn’t mean a thing. John Q Public already has pronounced this man guilty.
Not correct. BushCo and ObamaCo both operated “clean” teams who’s job it is to put together evidence sufficient to convict that a real court would accept. Anybody they sent to real court has evidence they think will pass muster.
They have untainted evidence on KSM, though a defense atty would challenge every item and would likely win some. I don’t think they’ll have enough left to convict after that IF KSM chooses to fight. bmaz disagrees with me on that point and he’s the lawyer, not I.
But if bmaz would like to bet, I’d bet a $50 donation to his local food bank that the government will not be able to sustain a conviction in a real trial of KSM if he doesn’t confess in court.
Boxturtle (Military commissions are not real courts)
If KSM is as guilty as all the rest of the goat herders in Gitmo, it doesn’t matter then does it? It would just show what a farce the “justice” system is that we liberals seem to want used. This entire thing is nothing short of a joke. Nobody will ever know who or whom is guilty of any type of terrorist attacks ever. But if this administration wishes to “look forward with bipartisan eyes” then their only option is the same as Bushies. Hidden military tribunals where the verdict can be announced on CNN of Faux News, and the people can cheer that justice has been done. People think he is guilty. Doesn’t matter if he is or not.
MI5 chief rues ‘emerging pattern of US mistreatment of detainees after 9/11
Link.
Here’s the original article:
MI5 chief defends security services amid torture ‘cover-up’ claims
“The director-general of MI5, Jonathan Evans, has issued a passionate defence of the Security Service against the “conspiracy theory” that it covered up its involvement in torture.”
Procedurally, once Holder filed the case with the Fed court, isn’t it up to the Court to decide which of their facilities to hold the trial in?
In order to conduct the trial somewhere else, does Holder have to withdraw his filing? Can he do that? Is this another chapter in the Making of the Unitary Executive?
Bob in AZ
Padilla was in the custody of the court as a material witness, in the custody of a US atty (Comey as a matter of fact) and yet that court had no power when Bush came and took him (i.e., when Comey handed him over) to a military facility. Up to the Sup Ct twice with no action. Oh, wait, yes there was action – John Roberts said “hey – we’ll be watching so could you guys bring popcorn for us next time you disappear someone from the courts?”
@58 You and I and Sara (who agreed with you) went around this in comments on an earlier thread, but I have a huge problem with trotting KSM into the criminal justice system – I had the same problem with Padilla and much more so with Siddiqui. While I’m in favor of criminal trials I think we are making and have made horrible case law that denigrates the whole nation in these cases.
I agree with CK that there is evidence for a conviction of KSM on major crimes without using the torture evidence. BUT – I don’t agree that his torture “evidence” is the real issue or problem. Due process doesn’t just require that you don’t trot out evidence that isn’t obtained by torture – it requires that a person be able to assist in their defense. If you have disappeared someone into horrific circumstances for years – with the sole purpose of fundamentally changing their memories, their persona and their ability to function – – under what kind of “due process” can you then just smilingly trot that person out as NOW a defendant in a trial? Someone who can work with their lawyers, someone who can provide information that isn’t coming from a deliberately altered consciousness?
More to the point – when you have still disappeared and unaccounted for members of the defendant’s family (as there was already in the Siddiqui trial and as there will be in KSM’s trial) (and to a lesser extent this was an issue with Padilla as well, as his wife was in de facto Egyptian custody – the same Egypt that we have gone to for torture during the last decade) – how do you say that person can have a fair trial while there family is unaccounted for?
Seriously – we’ve already gone down this path pretty irrevocably in the Siddiqui trial, but is this what we want to have stand as our jurisprudence? That a man can have his wife and 6 & 8 yo children disappeared, be himself disappeared into acknowledged torture for the acknowledged purpose of destroying his will and then, with family still disappeared, be trotted out for a “fair trial”
It bothers me tremendously. I haven’t ever been anything but in the camp of real trials and these guys being criminals, but I have also watched case after case in our courts over the last 8 years lay ground work for horrible instrusions of torture as a matter of little regard in our courts. That’s not a legal history that we will be able to be proud of later and it’s not a legal *currency* that we will be able to spend well in the short run.
I agree totally, Mary. It makes a farce out of the idea of due process. The Padilla trial started it. The Siddiqui trial continued it. Add this together with the new-old policy of indefinite detentions, and we have pretty much gutted the entire system, and introduced naked tryanny, which won’t stop at a few purported terrorists (or even one well-documented like KSM), but will spread throughout the government and society.
Jeff and Mary,
Thanks for pursuing this line of thought. In a way, it might be *good* if KSM’s lawyer’s made such a good case for KSM’s inability to help in his own defense that that becomes the central issue in his trial. If so, then the enormous inhumanity done to KSM might help open up the whole torture program to more detailed exposure.
Unfortunately, there are enough disciples of Jack Bauer in this country who have the attitude that you can’t make an omelet without breaking a few eggs that it would turn into an assault on Nuremburg and international agreements against torture, and we’d lose a century of progress.
Bob in AZ
Gee, I thought we already lost a century of progress, my mistake!
We have got to get Howard Dean or someone – anyone sane to start running against Obama as soon as humanly possible.
Our Republic can’t wait.
There won’t be any Dems running against Obama in 2012. The party would not allow it.
I don’t think we the people should ask permission from the party.
Agreed.
But who, among the Democrats would dare raise a challenge.
They are far too (obsequiously) polite.
Would Dean dare?
Would Kucinich or Grayson?
THAT is the question.
DW
I don’t disagree…but it would require the forming of another party, and if blogs are any indication, most people think another party would do nothing but stop the election of lesser of evils, rather than considering the third party as an option that could win.
In other news, tomorrow the sun will rise in the east.
Political considerations must not be used to determine individual cases of prosecution and justice. Full stop.
It was wrong when Karl Rove and other Bush White House tinkerers injected poison politics into Justice Department considerations then, and it is wrong now.
When Thomas Paine insisted that “in America the law is king,” and every single founder agreed, he meant what he said. The political influence of rabid right-wingers, and the administration’s political capitulation to that influence, by definition undermines the primacy of the rule of law. And it does so in a category of government action – prosecution and the administration of justice – that most needs to be kept free from such fickle forces.
Let us be honest, Chris, the “rule of law” does not exist in this nation.
There is a hidden Civil War going on among those who are lawyers.
Some feel the law may be used to destroy the law, those like Yoo, Addington and Bybee, others (one fervently hopes and we see it here at FDL and among the Wheel House Gang) believe that law does matter.
The outcome of this “war” is terribly critical to whatever future this society may have, and most people do not even realize it is going on.
DW
I fear you may be right.
One of the things that still terrify me about the previous administration was the way that they systematicly stacked the courts. Karls continuing gift to the neo cons. Not just the Roberts SCOTUS but every court on every level with even a Pat Robertson University churning out more twisted logic than you ever dreamed existed.
The Executive assault on the “rule of law” was made possible and continues as a direct result of Bush v. Gore.
The trajectory has been stark and brutally clear since that fateful, “non-precedent”, precedent.
DW
I agree.
Jane has a fresh cross-post already in progress: OFA’s Magical Activism
Why is KSM even being tried? He did not fly the planes into the twin towers. He did not plan 9/11. 9/11 was planned by the CIA and other foreign gov’ts that benefitted by this war. WAKE UP, THE ENEMY IS WITHIN ! 9/11 WAS AN INSIDE JOB ! No? then lets have the trial in NYC. What are the Dem and Republican NEOCONS affraid of? The truth.
I have news for you, I would not doubt that the powers that be are staging another false flag terror event and blame it on Iran so the US or Israel attacks Iran. Could it be at the Winter Olympics in Vancouver? or perhaps another underware bomber, CIA patsey to turn the Americans for more war?
troll. Not very smart one.
Where’s Freep when we need him?
Decent lawyer status is not enough to qualify for US attorney general. In fact none of the Clinton appointees for attorney general were qualified for that position, including Zoe Baird, Kimba Wood or Janet Reno. Holder falls withing that group. Rich was not qualified for a Clinton presidential pardon as well and Holder approved it.
With regard to KSM admissions by conduct or express admissions, I gather there were many such admissions prior to his being apprehended and subject to torture. I would hope and assume that such a determination has been made by qualified criminal trial lawyers at DOJ and the USA prior to the decision to try KSM in a civilian court subject to the Federal Rules of Evidence.
Huh? I can’t recall the last AG who rated above decent. It seems to me the only requirements for the job are law license and political correctness.
Heck, Gonzales is a classic example. Man used to be AG, now he can’t even get a job in a law related field.
As for KSM, well, we’ll see. I think that the arguments about admissability will last longer than the trial itself. And that most of the trial will be spent contesting those items of evidence that did not get tossed pre-trial.
Boxturtle (Why pick only on Clintons picks? Surely Both Bushes were just as bad)
Bush was worse but why justify the Clintons through a comparision with Bush. The Clintons game has always been to set the bar so low that by default they are a preferred choice and then we have the havoc of their incompetence. I will always be grateful that Obama was able to demonstrate that by running a competent presidential primary campaign against the Clintons. In other words at least we do not have the Clintons running the show again.
U.N.P.R.I.N.C.I.P.L.E.D.
Rather than standing on principle, Obama allowed Rahm Emmanuel to turn the matter into yet another of his media circuses. And Emmanuel is turning this into a fiasco to make Holder look bad within the Administration.
It’s time for Obama to put a muzzle on Emmanuel, or to find himself a new chief of staff.
This is a result of Obama repeatedly saying how powerless he was on HCR. Now because Obama has spent the past year saying he’s got no control, he’s now lost control of his own Presidency. Now it is the loudest mouth who is the De Facto President while Obama just gives speeches and photo ops.
That’s probably called ‘being a statesman’. At least theat’s what Rahm probably tells him.
Is it pitchfork time yet?
Huh??
When was it that Obama tried to build political support – isn’t “tried to” kind of a necessary element before you can say “unable?”
Obama has never sat down and worked to explicate the narrative on trials – just trotted out the “I’ll do everything to keep American safe – when I’m not too tied up cutting deals with bankers and Big Pharma and working my poll nos” spiel.
How hard would it have been for anyone, early on, from the WH, to pull hard on the line that, “You don’t confer military recognition on criminals, murderers aren’t warriors and it is stupid beyond belief for politicians and pundits to conflate criminals and warriors and use their position to in essence go out recruiting for al-Qaeda by glorifying them as being warriors. They aren’t, they’re criminals, they’ll get a @*$^@& criminal trial, not military recognition as warriors. Next question”
How hard would it have been early on for Obama to detail some case studies of mistakes made – like Errachidi – maybe even use it as an opportunity to issue an apology and reparations on el-Masri of the wrong name, thereby winning huge bonus points for the rule of law and democracy; changing the narrative and beginning the process of helping to prevent future failings by going down similar paths.
He’s not only not tried, he’s deliberately undercut every effort – letting Rahm run amok with leaks and sniping and starting the ball rolling back down the wrong side of the hill with his “look forward, the Exec and his torturers are above the rule of law and not only that, we have real live soldiers we can play games with until they die or become civilian killers too, tralalalala” crap.
Obama is actually much like Rumsfeld, but at least Rumsfeld did some level of planning. Rumsfeld only developed half a plan in Iraq – how to win the war, but not how to win the peace. With Obama he simply doesn’t do any planning at all – he just expects things to magically fall into place or just punts it to Congress, who despite being completely dysfunctional are better at planning anyway.
I just tried to make some of those points over at the Great Orange Satan, where mcjoan has a post up about Holder and trials.
At least by reading here I had some things to say about Holder and what he can do as AG.
That’s awfully nice to hear, that you got something other than just venting and rambling yada yada that you could take away from anything I’ve put down.
I’ve gotten to where I feel almost like I did after Kerry lost in 2004, like most of what there is in life (outside my horses) is a long wall to bang your head against.
In all of the argybargy about whether to give KSM a civilian trial and where to hold it, we fall into the trap of assuming we really know whether this latest incarnation of Emmanuel Goldstein had anything to do with anything at all, and more importantly, confirming the preferred myth of the relationship of the U.S. to 9/11 and terror.
The arguing about the details (“will we be able to convict this terrist who we know did it?”) quite successfully directs attention away from the larger question of what really happened.
Even if KSM walks (which seems unlikely, given both the government’s need for an execution and the rumored desire of the oft-tortured KSM to defeat his torturers through martyrdom), the whole charade will have served to protect the much larger actors involved.
Don’t watch the puppets; look for the puppeteers.
Follow the strings.
One has to wonder what the debate process among Obama and his advisors is actually like. I mean it seems that the determining factor in reaching their decisions is always whether the level of criticism no matter how asinine will hurt Obama politically.
One hears repeatedly how good of a listener Obama is and how he solicits and listens to all sides of the issue before coming to a delibearate conclusion. Well it seems that he can save himself and everyone else a lot of time and just short cut to the expediency of the issue since that is what determines the issue anyway.
H’Obama increasingly lays bares before the public by the decisions he takes. Few can dispute at this point that he is a vacillating unprincipled pol who cares nothing as much as taking the stance most likely in his eyes to minimize political risk to himself. He is nothing more than a vapid political whore.
And a fitting verdict would be to be waterboarded 183 times and lose your kids. Sentence served.
This whole terror story will look alot like the chicken little story to some mature historians 100 years in the future.
I hope Jane Mayer ask Senator Schumer, Mayor Bloomberg and Governor Patterson why they supported Holder’s decision and then flipped on that support?
Re evidence, there is a September 2002 KSM interview with Yosri Fouda.
One reason for moving the trial to a less conspicuous venue than NY is likely that significant unsavory details regarding possible US government incompetence or worse can not be allowed to be presented in the course of the trial.
I mean there are real unanswered questions regarding the attack that the government has no interest in addressing. Such as where was the immediate NORAD response during the 20 or so minutes the flights went off course. Or why did the US government decide to disappear the wife and children of KSM.
This trial is a headache for the government and Obama knows it. The outcome of the trial is preordained and that outcome will do nothing to mollify Al Qaeda since it will be obvious that only the preferred version of events will be permitted in order to kill KSM. In that respect everyone else should be outraged as well.
Didn’t Holder start renditions under Clinton?
Mary,
I have spoken face to face last summer with Ashley Stover an aide to my Senator Casey. I asked directly about those children and as to their whereabouts. She said we would never do anything like I suggested and would E-mail me with their location. I guess the snow held up her reply. I also asked about cutting a penis with a scalpel while we are detaining somebody. You should have seen the look of the old couple, there on unrelated business,on the penis question.
Great job – thanks for that info. I can only imagine the look.
The other point that no one with Obamaco is making is that there has already been an attempt at a military commission with a detainee who was tortured less than KSM – Khatani.
And the result was that the convening authority said the case could not be prosecuted.
Just as Obama has been so happy to put so many judges, trying to do the right thing, in the crosshairs of the crazies he seems equally happy to put the convening authority for the military commissions in similar crosshairs. At least Khatani was a name and profile that most Americans didn’t know or know about – by now, KSM is quite a different story.
The government argued on Friday that it should be allowed access to people’s cell-phone records to help track suspected criminals.
“There are governments in the world that would like to know where some of their people are or have been,” she [Judge Dolores Sloviter] said, citing Iran as a government that monitors political meetings. “Wouldn’t the government find it useful if it could get that information without showing probable cause? Don’t we have to be concerned about that?”
Link.
From above”Administration officials acknowledge that Holder and Obama advisers were unable to build political support for the trial. And Holder, in an interview Thursday, left open the possibility that Mohammed’s trial could be switched to a military commission, although he said that is not his personal and legal preference.”
—————————————————————
Holder made a decision who gives a rats ass about political support? I thought he was the Attorney General.
In Jane Mayers article “The Trial”
“As Attorney General, Holder has tried to depoliticize one of the most polarizing issues facing the Administration: how to protect the country from terrorism. David Vladeck, a former law-school classmate, who is now the director of the Bureau of Consumer Protection, said, “His vision as Attorney General is to be seen as a lawyer, and to get away from what was a partisan-infected Justice Department. He doesn’t want to be Ed Meese or John Ashcroft. He doesn’t want the Justice Department to be seen as another political agency. He’s sent the unmistakable message to the people at D.O.J. that after years of politicization they are now going to do the right things, regardless of politics.”
WHY HOLDER CHOSE MANHATTAN
“Once Holder had settled on taking the 9/11 cases to court, the remaining question was where. A confidential security study by the U.S. Marshals Service tipped the decision toward Manhattan. The marshals concluded that the courthouse on Foley Square was by far the safest option; it has underground tunnels through which defendants can be transported from the adjacent Metropolitan Correctional Center. In addition, Holder was mindful of a federal death-penalty statute that calls for capital-murder trials to be held in a state that is connected to the crime. The choice also may have had special significance for Holder because he was born and raised in New York City—in Queens, near LaGuardia Airport. His mother still lives in the city, and his brother William, a retired Port Authority police officer, lost several friends and colleagues on 9/11. In announcing his decision, Holder stressed that, “after eight years of delay, those allegedly responsible for the attacks of September 11th will finally face justice. They will be brought to New York—to New York—to answer for their alleged crimes in a courthouse just blocks away from where the Twin Towers once stood.”
Hours before he went public, Holder spoke with several New York officials, including Bloomberg, Schumer, and Governor David Paterson, all of whom pledged their support. Bharara, the U.S. Attorney, informed Commissioner Kelly. Holder then called Obama to relay his decision. Everything seemed in place. After Holder announced the plan, Bloomberg said, “It is fitting that 9/11 suspects face justice near the World Trade Center site, where so many New Yorkers were murdered.”
Read more: http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer#ixzz0fM0IiV1Y
Jane Mayer sure describes clearly why it is so critically important to hold the trial in a civilian rather than a military court.
“Many countries that had refused to coöperate with military commissions at Guantánamo were much more favorably disposed to criminal trials. Among the countries that stood willing to provide evidence and witnesses for court prosecutions were Germany, France, and Great Britain.”
So Cheney, Bill Kristol, Mel Sembler, Lindsay Graham, Schumer, Feinstein look like they may get their ways. I though Eric Holder was the Attorney General
“
Correct me if I’m wrong but isn’t there a tape someplace with KSM claiming responsibility for the 9-11 attacks? Or am I thinking of another tape of somebody else ((besides OBL)?
He absolutely gave an interview as Hugh mentioned above @ 78 – completely uncoerced. There was also a lot of evidence, including laptop info etc., against him for pre-911 crimes.
I’m not arguing that there isn’t untainted evidence.
I’m arguing that our system and most have in the past required not only untainted evidence that the prosecutors can use, but also a defendant who can participate in their defense and who doesn’t have things like a few years of tortured into saying whatever we want and a disappeared family hanging out there, unaccounted for.
How is someone who has been tortured with the specific purpose of making them mentally broken and who has their family currently disappeared “competent” to stand trial or to participate in their defense? Apparently with the Siddiqui and Padilla trials we have said – “eh, so what” but I don’t think that makes good case law going forward. Correction – I think it makes horrible case law. But it will be the case law made if the cases go forward – I don’t doubt that much.
Yeah, I thhink that horse is out of the barn already.
There was an interview with an Al Jazeera reporter cited in the Military Tribunal hearing. It’s interesting that although KSM denied the “rank” the reported claimed he was given, he did not deny the substance of the claims in the rest of the interview. He also did not challenge the materials found in the hard-drive found at the time of his capture, nor that recovered at the time of the Bojinka plot. He did dispute some of the “separation” of some of the evidence as specific lines of evidence, rather than a collective whole.
The amount of unclassified evidence is substantial. Given that it is unclassified I wonder if it has been revelead to the Media?
http://www.defense.gov/news/transcript_ISN10024.pdf
Geez freakin louise – ANOTHER Mukasey op ed on deep sixing the rule of law?
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/11/AR2010021103331.html
He’s like the Karmic balance to Jimmy Carter in retirement – Habitat Inhumanity.
“He’s like the Karmic balance to Jimmy Carter in retirement – Habitat Inhumanity.”
Thanks for your wonderful humor, Mary. And, boy, do we need that.
Mukasey, in “retirement”, diligently working for “Habitat Inhumanity” …
Jeebus, I hope that goes big-time, Mary.
I appreciate your humanity and your humor so very much.
DW
Got a Greenwald article
cuedqueued up on this.What is Mukasey trying to help hide? Will the issue of who the torture contractors were come up in this trial?
According to Jane Mayer in her article “The Trial”If the KSM trial is held in civilian courts they are more likely not to use information that was acquired through torture and in the military courts they are more like to use information acquired through torture. Is that right?
The team pushing back hard against Holder’s decision is made up of some very bloody people.
I don’t know what Mukasey’s game is, other than that once he was briefed in as AG on everything the Bush admin had done and not only did nothing, but affirmatively tried to block those at OPR or elsewhere who did try to do soemthing, he pretty much cast his lot.
Re:
the answer is almost certainly not. As CK & Sara and others (even me long ago *g*) have mentioned, there is a lot of evidence that can be used against KSM that won’t have anything to do with his torture confessions. That will be the focus of the case against him – whether a civilian trial or a military tribunal. I didn’t think that was Mayer’s takeaway, but if so, I think she got it wrong. I think that on paper there are rules that make it easier for a military tribunal to utilize torture info, but in reality the military tribunals (see the Crawford decision on Khatani, for example) have been more attuned to the issue of coercion and abuse (compare with the Chicago Salah case, the Padilla case, the al-Marri case and the Siddiqui case).
The only contexts in which I could see KSM’s torture coming up in the case would be a) in a series of motions to challenge his ability to cooperate with counsel and/or to request information on disposition of his family to remove coercive circumstances during trial or b) if gov really were so foolish as to try to introduce evidence obtained in connection with the torture. Sideways to KSMs actual trial here, though, there is the Pakistani appeal of the man who was convicted in Pearl’s murder and who is claiming that apparently one of the things that the US tortured out of KSM was an admission that he (KSM) wasn’t just involved in the murder but that he actually was the murderer – which is what the man in Pakistan has been convicted for doing.
Gonzales and Bush tried to capitalize on the confession they got from KSM in connection with Pearl’s murder by going to Pearl’s widow to get some good PR for their torture tactics.
August 08, 2007
http://www.democracynow.org/2007/8/8/the_black_sites_a_rare_look
There has been noise about the Pakistani convict seeking access to KSM through the courts if KSM is turned over to the courts and if so there would be some tie in with the torture issue that might or might not come out some in a courtroom setting, but not in a case against KSM.
I just don’t see gov as being stupid enough to try to bring in torture confessions, esepcially when they have been so successful in cases like Siddiqui’s and Padilla’s with getting convictions based on almost nothing and without anyone even beginning to ask questions about all the “mysteries” and knowing that the US press can be relied upon to be very silent on the tough issues and very rah rah conviction oriented on the rest.
And KSM’s case will be the one to make the case law for what follows. Imagine if no pilot had shown up to claim the transmitter in the Higazy case or if the fact that one did show up had been kept secret – then Higazy disappeared for years of torture and his sister disappeared by Egyptian authorities (as was being threatened) and then he was trotted out 8 years later with the “untainted” evidence for his convction. Would that have been a “fair” trial? Is there anything different about us getting a torture victim who knows he can be delivered back to torture at any time he doesn’t say the right thing to trial and North Korea doing the same? Or Iran? China? Is there something we hold out to Afghans and Iraqis and Yemenis etc. as worthwhile in a system that does what we have done – from al-Libi on down the line. As much as I want trials and not tribunals, and as much as I agree on the amount of untainted evidence, is there much to be proud of in a conviction is based on the charade of ignoring disappeared children and torture?
“The only contexts in which I could see KSM’s torture coming up in the case would be a) in a series of motions to challenge his ability to cooperate with counsel and/or to request information on disposition of his family to remove coercive circumstances during trial or b) if gov really were so foolish as to try to introduce evidence obtained in connection with the torture.”
I would suggest one other issue — at Gitmo KSM has done his own defense, went pro.se. It is a little hard to reconcile the argument that you cannot, for psychological reasons, assist in your defense, and at the same time sustain the argument that you can manage your own defense. At any rate, I suspect he will want to be his own attorney in Criminal Court, so the argument about this — and whether the court will appoint an attorney for him, will be of great interest. I frankly doubt the Court will allow him to go pro.se. in the Criminal Trial — it will be some sort of arrangement like the Moussaoui arrangement. The court may have to deal with any number of security issues regarding classified evidence. I would expect, for instance, for the government to offer some supporting evidence for the al Jazzara tapes that might include material from NSA that verifies KSM’s various communications with bin al Sheib in Hamburg, or directly with members of the 9/11 team. After all, NSA has those vast data farms of recorded international phone calls and data transfers…they might want to use it to verify KSM’s claims. But I don’t think they will be giving KSM the keys to the farms — so the court will appoint a properly cleared attorney for his defense to deal with such.
Whether or not he will be pro se is another issue- I don’t know if the torture comes up in connection with that issue or not, but it is yet another. There are a whole slew of regular old issues – as there are in any trial, that give rise to a boatload of pretrial mostions.
I’m not sure that this: “It is a little hard to reconcile the argument that you cannot, for psychological reasons, assist in your defense, and at the same time sustain the argument that you can manage your own defense.” is that hard to reconcile – if you’ve been tortured for years hidden away in a black hole where lots of white hat, black hat games were played as well, I think it would be very reconcilable that you would want to cooperate with the prosecution to obtain judgement bc you’ve been mentally trained to be cooperative with them and to also have a total mistrust of the lawyers you do get, so that you feel safer and more in control without them.
If someone took your children and blackholed them and said – we think you should ditch your lawyers in this trial or the kids may not live – could you see someone arguing they want to represent themselves and yet also being in no fit psychological state to assist in their own defense?
To be honest, how we let a trial proceed without requiring an accounting for someone’s abducted (by the prosecution) children and spouse is beyond me. But we did it already with Siddiqui and we’ll do it with KSM in either the Commissions or trials.
I’m for civilian trials bc I believe in the rule of law and under that rule of law, there’s no real argument of any kind for a military commission. But I don’t believe you win anything for the rule of law with a civilian trial that proceeds from the standpoint of having the children and spouse of the defendant disappared by the prosecution for years (and concurrent with the trial) and having the defendant show up at trial after years being used in of human experimentation.
I’m probably less interested in the issue of defending himself bc this happens all the time in criminal trials for various reasons, including defendants trying to make an appealable record, and courts deal with it all the time. He won’t get to lone gun it-anything that goes on with that won’t be much more than a time killer.
On the NSA data front, they wouldn’t have to turn over any kind of keys to the farms to introduce evidence of intercepts – they wouldn’t even if it were a mafia case instead of a terrorism case, so I don’t think there will be a tremendous lot on that front. Really, on the evidentiary front, I don’t see lots of prosecution issues of any kind. And that’s without taking into account how low the threshold of proof will need to be for them to get a conviction. If you look at how low the hurdle was with Siddiqui and Padilla, for example, and they are both far less notorious than KSM – the prosecution won’t have to do much more than show up for a conviction. Show up with the Foudra tape and bob’s your uncle. IMo, fwiw.
Here is a potential though to chew on. Obama has already announced he is going to execute KSM just as soon as they wrap up the certainty of convicting him up. How do you execute someone that was known to have been tortured like KSM was and whose defense didn’t raise the issue in a motion to dismiss (at a minimum, if not in other tacts as well)?
That is something to chew on – I guess in part you don’t make the case law. Other cases have raised it – what happens if the Sup Ct does take the Padilla case appeal on the torture issues that the judge blew off? What if it says torture should have been considered or defense counsel allowed access etc. – then what happens with a non-US citizen case pending offshores in a military commission. Then there’s the need for KSM as a witness in other cases (including the Pak appeal or even possibly pending appeals on Moussaoui or Padilla etc – how do you exclude his availability for new evidence motions in those trials if he is in the court system? Then there are the international aspects of extradition and even turning over detainees after joint operations if the US is saying it can first disappear people and their families into torture for years – maybe lose a few and toss them in unmarked graves here and there – and THEN hold a
trialcommission under pre-cooked rules completely separate from the UCMJ rules for US combatants, and then also haev the commissions NOT look at the prima facie war crimes in the evidence – esp if they foreswear having *jurisdiction* over US *combatants* (if you use the providing support standards that are in the MCA) like contractors and CIA and NSA and special forces operating under EOs and …Gosh – if KSM can produce a Fatwa can’t he claim the OLC defense? He had a good faith belief, based on Sharia advice, that what he was doing was legal – that’s all it takes to walk away from consequences in the US, isn’t it?
BTW – Sara and I are in agreement on Peters as a very informative read.
Mary “is there much to be proud of in a conviction is based on the charade of ignoring disappeared children and torture”
Not much to be proud of at all. An invasion of another country based on a “pack of lies” hundreds of thousands dead, injured millions displaced, re written torture laws, torture, torture and more torture, Mukasey protecting that torture and those who re wrote the laws. Not much to be proud of about our government, our so called justice system or our leaders.
Whether the American people or our leaders ever acknowledge the crimes committed by the Bush administration and hold those who committed these serious crimes accountable. The deep down awareness of the unnecessary death and destruction that has taken place in Iraq, Afghanistan, Pakistan gnaws at the psyches of our returning soldiers and Americans who have any respect for the lives of others no matter what country they are from.
The more I think about a KSM trial in the Federal Court Building in lower Manhattan, the more I am a little concerned that the necessary security and disruption of that business district, residential district, locus of the NYCity City Hall and all — is a serious reason to re-evaluate the decision to go to Foley Square with the case. Here are a few of my concerns.
The Case is of great interest to the International Press, US Press, and the survivors of 9/11 and the families of those who died. (Thousands) No way any Federal Courtroom could accomodate all these who have a legitimate interest in attending the trial. It also seems to me that having all these folk line up to get into a highly secured venue — is itself a security issue.
Federal Trials tend to use anonymous but unsequestered Juries for these situations. (The object, to protect Jurors from threats to themselves and family). It seems to me that moving the jury in and out of Foley Square every day is just ripe with opportunities to destroy anonymity. Any destruction on anonymity might lead to a mistrial.
I suggest we already have a model for this kind of trial — and with a little alteration, could work quite well, and that is the trial of Tim McVeigh, the OK City Federal Building Bomber, which was conducted in Denver, but which made several viewing rooms available in OK so that the survivors, and the families of the victims, could arrange to watch the trial daily.
My suggestion for KSM would be to find a very small Federal Courtroom, or perhaps construct a highly secured one perhaps on Governor’s Island in New York Harbor (It long was a Federal reszervation, but has been turned over to NY State even though some Federal Agencies still use buildings on the Island) — but no bridges, everything comes in by Ferry or Helicopter — and then recognize the vastness of the population with connections to survivors and the victims families, let alone the Press — and put a remote viewing room in every Federal Courthouse in the US. Make the actual courtroom as plain and simple as a Federal Courtroom can be, standard issue used Government Furniture, with space for prosecution and defense tables, a jury box, and the Judge and other court personnel, but other than a camera operator and a few technicians, that would fill up the space. But anyone with a legitimate reason to follow the trial (and I assume this would include bloggers) would get a ticket to a viewing room in a Federal Courthouse.
The key elements in this are: first of all, comprehensive coverage of the trial process. The key elements are not the show that can be put on outside the courtroom (Camp OJ for instance) — but the non-spectacle of presentation of evidence, arguments, motions, witnesses and all the rest.
The second key element is the fair working of Judge and eventually the Jury. Americans and the rest of the world need to see this play out without the possibility of external security threats.
I think the argument that you can better handle security, and probably save tons of money in the process by doing the trial this way would eliminate many of the current arguments — except for those set in stone on Military Commissions. But I would suggest if you could use this basic model to try Timothy McVeigh — I suspect you could use it for KSM.
I just had an e-mail from the DSCC land in my in-box. They want money so they can have more Ds.
This is what I sent back:
Terror trial: Heads you win, tails we lose
Indecision The Hallmark Of The Obama Administration
In a scene eerily reminiscent of the troop level decision in Afghanistan, the Obama administration cannot come to terms with choosing a venue for the terror trial of Khalid Sheikh Mohammed, or the type of court he should be tried in, criminal or military. The Attorney General Eric Holder had originally made the decision of criminal court in lower Manhattan, but a firestorm of criticism that began after Mayor Bloomberg switched positions to oppose this has made the President vacillate….
Full story at Michael Haltman’s New York Homeland Security column at Examiner.com: http://www.examiner.com/examiner/x-25304-NY-Homeland-Security-Examiner~y2010m2d13-Terror-trial-Heads-I-win-tails-you-lose#
A little advice – this is not a forum for blog whoring.