The trial of KSM thread

[D. Scarlatti]

Here's a good start:

GOP lawmakers accuse Holder of being a terrorist sympathizer.

[Qingdai]

Remember if they are Muslim, it's terrorism, no matter why or who is involved in anything.
Not our fault! Not our fault! Look away from the policies of the Bush!!

Lawmakers Call Ft. Hood Shootings ‘Terrorism’ - NYTimes.com

What merit, if any, is the argument that KSM shouldn't be tried because defense lawyers would, "create bad law"?

http://www.slate.com/id/2236146/

Seems like if that was going to happen, it would have already by now. These trials aren't that special.

[ChuckF]

Originally Posted by Qingdai

What merit, if any, is the argument that KSM shouldn't be tried because defense lawyers would, "create bad law"?

http://www.slate.com/id/2236146/

I don't think he's saying that KSM shouldn't be tried because the trial would create bad law. I think he's saying that he was detained for so long and tortured will, by force of the appellate process, further legitimize torture-as-law-enforcement because the government simply cannot lose this trial. That legitimization is the bad law. KSM should be tried, but it's impossible to walk back the damage done by the torture policies of the previous administration, or the detention policies of the previous and current administrations. Basically everybody loses except for government torturers.

[Sauron]

GOP morons don't seem to know that miltary tribunals have been largely ineffective at obtaining convictions:

In deciding to use federal court, the attorney general probably considered the record of the military commission system that was established in November 2001. This system secured three convictions in eight years. The only person who had a full commission trial, Osama bin Laden's driver, received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge.

One reason commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the commissions' validity. This uncertainty has led to many legal challenges that will continue indefinitely -- hardly an ideal situation for the trial of the century.

By contrast, there is no question about the legitimacy of U.S. federal courts to incapacitate terrorists. Many of Holder's critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including "shoe bomber" Richard Reid; al-Qaeda agent Jose Padilla; "American Taliban" John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.

In terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant's ability to raise irrelevant issues and tightly controlling the courtroom. Moussaoui's trial was challenging because his request for access to terrorists held at "black" sites had to be litigated. Difficulties also arose because Moussaoui acted as his own lawyer, and the judge labored to control him. But it is difficult to imagine a military commission of rudimentary fairness that would not allow a defendant a similar right to represent himself and speak out in court.

In either trial forum, defendants will make an issue of how they were treated and attempt to undermine the trial politically. These efforts are likely to have more traction in a military than a civilian court. No matter how scrupulously fair the commissions are, defendants will criticize their relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them. Some say it is wrong to give Mohammed trial rights ordinarily conferred on Americans, but a benefit of civilian trials over commissions is that they make it harder for defendants to complain about kangaroo courts or victor's justice.

[yguy]

Trying KSM for being a terrorist is like trying Perez Hilton for being a fag. Clearly, then, the idea here is to point the bony finger of indignation not at KSM, but at others.

[Clutch Munny]

Total sidebar:

Originally Posted by ChuckF

I don't think he's saying that KSM shouldn't be tried because the trial would create bad law. I think he's saying that he was detained for so long and tortured will, by force of the appellate process, further legitimize torture-as-law-enforcement because the government simply cannot lose this trial.

This problem with institutionalized torture kinda sorta reminds me (FWIW -- probably nothing) of what I've thought about capital punishment: that the moral seriousness of screwing it up, given that you've argued that it was somehow necessary, strangely doesn't have the institutional effect of creating a self-policing, extra-careful set of practices that one might idealistically imagine. Quite the opposite: it puts in place an incentive for willful blindness, ass-covering and self-justification at all costs that can create an even more cavalier or sloppier than normal set of practices.

[Crumb]

Yeah like Death-qualified juries...

[D. Scarlatti]

GOP lawmakers accuse Holder of being a terrorist sympathizer

Originally Posted by yguy

The idea here is to point the bony finger of indignation not at KSM, but at others.

Very well said, yguy. I could scarcely agree more.

[Sauron]

Originally Posted by yguy

Trying KSM for being a terrorist is like trying Perez Hilton for being a fag. Clearly, then, the idea here is to point the bony finger of indignation not at KSM, but at others.

So by extension, your continued existence here is not to indict the forum, but to point the bony finger of failure at others - like your parents.

I see.

[D. Scarlatti]

Krauthammer reaches for adult diapers

[The Man]

I stopped reading after he compared the 9/11 hijackers to anarchists.

[D. Scarlatti]

Krauthammer really is reprehensible.

There is an article at Slate by a lawyer arguing that both KSM's trial and appellate courts will be so "timid" to grant defense motions that a lot of "bad law" is going to be made in the Second Circuit (and, potentially, SCOTUS). In other words, by the end of this escapade, the courts will have tightened considerably a number of protections currently understood as extending to defendants. There's a strong likelihood of that coming true, so KSM is something conservatives should be looking forward to.

[The Man]

That sucks. But it's likely true. I wish there were a damn thing anyone could do about it.

[chunksmediocrites]

Textbook Krauthammer.

Khalid Sheik Mohammed has gratuitously been presented with the greatest propaganda platform imaginable -- a civilian trial in the media capital of the world -- from which to proclaim the glory of jihad and the criminality of infidel America.

Yes, getting a trial is somehow playing into the terrorists' hands. Krauthammer conveniently turns a blind eye to the actual propaganda coups that occur regularly, that help bring in recruits for militant and terrorist organizations.

What radical Muslims tell each other is that the US is torturing prisoners, almost all Muslim, many of them innocents, in secret prisons and in Guantanamo Bay, Cuba and at the Bagram military base in Afghanistan. They tell each other that the US has tortured some of these men and boys to death. Torture that Krauthammer advocates.

They talk about the US military killing numerous civilians in bombing attacks in Afghanistan and Pakistan. They talk about the US occupying two Muslim nations, and waging wars in three. Wars that Krauthammer continually advocates, including a fourth war in Iran.

They talk about the US giving massive and unending support for Israel, that uses US weapons to bomb and kill Palestinians and other Muslims, many of them civilians. How the US blocks UN efforts to address human rights abuses and war crimes. Policies that Krauthammer completely supports.

These are the real propaganda coups for the very small minority of Muslims in the world that actually hold a militant doctrine- the factual results of our foreign policy. It's in the conclusions of the Defense Science Board Task Force, that Rumsfeld had analyze Administration policy and its impact on terrorism, back in 2004, specifically regarding Muslim radical militants; it is what interviews with men who actually recruited Muslims for militant causes say; it is also what the Taliban, who held New York Times reporter David Rohde for seven months, told him.

Our foreign policies are the greatest recruitment tools for radical militant and terrorist activity against the US.

Yet Krauthammer- one of the biggest cheerleaders of war with Iraq, who was categorically wrong about every aspect of the war- remains widely published as somehow credible, with his 'propaganda platform' firmly intact.

What disturbs me is Obama and Holder's moves to create multiple tiers of rigged systems, based on whether they think they can convict on what usable/barely credible evidence they have. Military Tribunals, slightly tweaked after the Supreme Court called bullshit when Bush used them, are kangaroo courts, and 'preventive detention'- imprisoning people indefinitely, against hypothetical future crimes- is tossing rule of law and due process right out the fucking Orwellian nightmare window.

KSM's trial will be tainted, as it should be, because he was tortured.

This is why I am frustrated every time Bush or Obama or any other government official talks about capturing and killing the people who committed 9/11. They never talked about trials for them, almost always put it in terms of retribution, not rule of law.

[D. Scarlatti]

You're right, I think, given the choice between a civil trial and the "Orwellian" military commission. Sure, they could just announce KSM and the others were tried, convicted, and executed, but not even the Bush administration was willing to do that. They set up Guantanamo and just left it for Obama. At some point, somebody had to initiate the prosecution, which is what Holder did. The object here is to convict and execute. And the ball is finally rolling, after standing still for going on seven years.

[chunksmediocrites]

I hope my sarcasm was clear when I said "getting a trial is somehow playing into the terrorists' hands," in response to Krauthammer's op-ed. It didn't scan as well when I re-read it just now.

I'm glad they are trying KSM in our normal federal court, and yes, Obama inherited a mess. I just want the Administration to go through these cases and either try them in our courts or release them, and have the political will to make sure those releases go through where their nations won't take them or would harm them. This includes Bagram. Don't have credible evidence to convict? Then let them go. Obama needs to renew due process and drop the Terror War justifications for abuse of power.

I get a little rant-y about Krauthammer. I make the mistake of commenting on articles in my local paper's on-line edition and rubbing elbows with some of my local Krauthammer fans.

Posted by realwrld101
November 20, 2009, 10:06AM

Reasoned thought need not apply when emotive reasoning rules. This line of emotive thinking allows the fruition of ideas like bringing Gitmo prisoners to state side prisons. There they can start recruiting disgruntled criminals for their radical cause.

Next Obama will want to bring all terrorists in Iran and Afghanistan here for trial. Maybe we should open prison Mosques allowing them to formalize the process of recruiting prisoners for radical terrorism.

Had Obama held office in WWII his legacy would be noted by historians as a complete failure.

Thanks for some logic Charles!

Posted by flatcar
November 20, 2009, 12:33PM

President Obama took his pre teen children to a church where the pastor spent part of his sermon cursing the United States. That indicates to any rational person poor judgment on his part. To bring the Gitmo prisoners to New York is just further proof of his poor judgment. It would be interesting to know just how many people believe Attorney General Holder made the decision.

Yay Oregon.

[D. Scarlatti]

What do those people want done with the detainees? What are their proposed options, other than criminal trials? If military commissions, have they not been reading the Supreme Court caselaw developed since Gitmo? My understanding is that KSM will be dead quicker through the civil rather than the military process. And AG Holder's detractors want KSM dead, surely.

[Garnet]

Originally Posted by D. Scarlatti

What do those people want done with the detainees? What are their proposed options, other than criminal trials? If military commissions, have they not been reading the Supreme Court caselaw developed since Gitmo? My understanding is that KSM will be dead quicker through the civil rather than the military process. And AG Holder's detractors want KSM dead, surely.

I have actually heard more than one conservative say that all the Gitmo detainees should be taken out and executed by firing squad. After all, they must have done something bad to end up there.

[Watser?]

Originally Posted by D. Scarlatti

What do those people want done with the detainees?

Shoot them in the back of the head would be my guess.

[erimir]

I'm confused as to how the alternatives offered by conservatives don't damage our moral credibility just as much, if not more. How is a military tribunal any better of a demonstration of due process?

Not to even mention those that want them executed without trial.

But I am curious what the more liberal human rights people think ought to be done with KSM? If convicting him is going to make bad law, do they think we should release him then?

[Jug Pilot]

Originally Posted by Watser?

Shoot them in the back of the head would be my guess.

Just like a Liberal to throw money at the problem. You know bullets cost money? Think of the deficit and our children!

The solution is a reality TV show. Didn’t “The Running Man” documentary teach you liberals how to deal with terrorists? Captain NeoCon would show them. And the contestant prizes (a personal tax cut for their favorite corporation) would help stimulate the economy.

[Watser?]

Meanwhile:

Two Algerian men held at Guantanamo Bay for seven years on terror charges have been acquitted at a trial on being returned home, state media report.

Faghoul Abdelli and Mohamed Terari were arrested in Afghanistan by Pakistani police after the 11 September 2001 attacks on the US, reports said.

They both denied having any connection to militant groups and said they were "brutally tortured" in US custody.

Algeria's state prosecutor had called for a 20-year jail term for the men.

BBC News - Algeria acquits two former Guantanamo Bay detainees

The Algerians have been at war with Islamic fundamendalists for almost 2 decades, it's not like they are terrist-lurvers.

[chunksmediocrites]

Originally Posted by D. Scarlatti

What do those people want done with the detainees? What are their proposed options, other than criminal trials? If military commissions, have they not been reading the Supreme Court caselaw developed since Gitmo? My understanding is that KSM will be dead quicker through the civil rather than the military process. And AG Holder's detractors want KSM dead, surely.

The most common response is military comissions, and then mentioning Ex parte Quirin and Operation Pastorius- not by name, they just use the trial of eight (and execution of six) prisoners tried by military commission in 1942 as precedent. And no, they are not familiar with Hamdan vs. Rumsfeld or our obligations to the Geneva conventions that we signed onto in 1949.

[California Tanker]

Although I am somewhat bemused by the comments from the Administration that a conviction will be secured (Kindof like saying 'We'll give him a fair trial, then hang him), as has been pointed out, if they weren't absolutely certain about the outcome, they wouldn't be doing this.

A lad at Stratfor has pretty much nailed my main concern. This is a foray into an entirely new field of jurisdiction, neither fish nor foul, and nobody seems inclined to sort it out. Indeed, few people are even acknowledging the unprecedented dilemma currently faced.

Deciphering the Mohammed Trial | STRATFOR

(Extracts)

<snip>

Holder’s decision to transfer Khalid Sheikh Mohammed to federal court makes it clear that Mohammed was not a soldier acting in time of war, but a criminal. While during times of war spies are tried as criminals, their status is precarious, particularly if they are members of an enemy army. Enemy soldiers out of uniform carrying out reconnaissance or espionage are subject to military, not civilian, justice, and frequently are executed. A spy captured in the course of collecting information is a civilian, particularly in peacetime, and normally is tried as a criminal with rules of evidence.

Which was Mohammed? Under the Geneva Conventions, his actions in organizing the Sept. 11 attacks, which were carried out without uniforms or other badges of a combatant, denies him status and protection as a POW. Logically, he is therefore a criminal, but if he is, consider the consequences.

Criminal law is focused on punishments meted out after the fact. They rarely have been preventive measures. In either case, they follow strict rules of evidence, require certain treatments of prisoners and so on. For example, prisoners have to be read the Miranda warning. Soldiers are not policeman. They are not trained or expected to protect the legal rights of captives save as POWs under the UCMJ, nor protect the chain of custody of evidence nor countless other things that are required in a civilian court. In criminal law, it is assumed that law enforcement has captured the prisoner and is well-versed in these rules. In this case, the capture was made without any consideration of these matters, nor would one expect such consideration.

<snip>

The fact is that international law has not evolved to deal with persons like Mohammed. Or more precisely, most legal discussion under international law is moving counter to the Geneva Conventions’ intent, which was to treat the franc-tireurs as unworthy of legal protection because they were not soldiers and were violating the rules of war. International law wants to push Mohammed into a category where he doesn’t fit, providing protections that are not apparent under the Geneva Conventions. The United States has shoved him into U.S. criminal law, where he doesn’t fit either, unless the United States is prepared to accept reciprocal liability for CIA personnel based in the United States planning and supporting operations in third countries. The United States has never claimed, for example, that the KGB planners who operated agents in the United States on behalf of the Soviet Union were themselves subject to criminal prosecution.

<snip>

The real problem here is international law, which does not address acts of war committed by non-state actors out of uniform. Or more precisely, it does, but leaves them deliberately in a state of legal limbo, with captors left free to deal with them as they wish. If the international legal community does not like the latter, it is time they did the hard work of defining precisely how a nation deals with an act of war carried out under these circumstances.

The international legal community has been quite vocal in condemning American treatment of POWs after 9/11, but it hasn’t evolved international law, even theoretically, to cope with this. Sept. 11 is not a crime in the proper sense of the term, and prosecuting the guilty is not the goal. Instead, it was an act of war carried out outside the confines of the Geneva Conventions. The U.S. goal is destroying al Qaeda so that it can no longer function, not punishing those who have acted

<snip>Holder has opened up an extraordinarily complex can of worms with this decision. As U.S. attorney general, he has committed himself to proving Mohammed’s guilt beyond a reasonable doubt while guaranteeing that his constitutional rights (for a non-U.S. citizen captured and held outside the United States under extraordinary circumstances by individuals not trained as law enforcement personnel, no less) are protected. It is Holder’s duty to ensure Mohammed’s prosecution, conviction and fair treatment under the law. It is hard to see how he can.

<snip>

NTM

[D. Scarlatti]

It's not surprising or unusual to hear the prosecution talk up its case. I expect it's very strong, and doesn't rely on evidence that may be ruled coerced. As for international law, the US has resisted the ICC, so it's hard to complain about that now.

It's this or a bullet in the head,* to summarize the arguments so far.

* Which, setting aside the rule of law for a moment, wouldn't cause me to lose a moment's rest.