In military courts, a positive defense may be made that the commander had “undue influence” in the prosecution of an individual, his sentencing, or both. The point of the undue command influence argument is that the careers of military court members can be subject to the whims of a sufficiently powerful commander, and that his wishes might consciously or otherwise interfere with the administration of impartial justice. Thus, from this point, the trial of Khalid Sheik Mohammed pretty much has to go through the civil courts, since the Commander-in-Chief of the US military has decreed that KSM will be found guilty, and will be put to death. Military defense lawyers are and admirably tenacious lot, and in any future trial by military commission they would undoubtedly argue that the CINC has prejudged the accused and dictated the outcome.
The federal judiciary however is a co-equal partner in the US government with the executive and Congress, so presidential dictat holds no sway there.
So, hello New York.
But then again, it’s safe to wonder whether our preciously bejeweled legal system will truly be shown off to best advantage before an amazed world when the US Attorney General has said that “failure is not an option.”
Two significant cornerstones of our legal system, civil and military, are presumption of innocence on the part of the defendant and due process under the law. Of course a failure to convict is an option, or else the whole affair is simply a show trial of the kind that would make a hard core Stalinist blush in shame, especially when the AG has admitted that should the trial fail – which it won’t – then KSM will merely be shifted back to military detention. There to languish forever, since he now has the defense not merely of undue command influence, but also a fifth amendment defense of double jeopardy.
This is all theater, really, and the director is too clever by half.
I wonder who the audience is supposed to be.
Very cleverly orchestrated by the Director, indeed. I’m wondering: Who is the Producer?
Failure not being an option then proceeds into ‘mea culpa’ after the fact, and the audience is left nodding its noggin in agreement. Have they sold the movie rights yet?
There’s a fair argument to be made (tho I don’t know the legalities of it) that the President has done more to taint a civilian jury pool than he would influence a military commission.
1) Bush haters. This will prove all the President’s men are all about making sure those who served the nation from 2001 to 2009, to include those who were tasked to extract intelligence information from those captured who had declared war on us, are, at the least, shown to be fools for not following established Constitutional “protocols” during the execution of their assigned duties; At worst, the chief law enforcer, and all of his people were in fact, tyrants and dictators who mercilessly tortured poor, innocent people, for no other reason than to cover up their conspiracy to impose martial law on the entire citizenry after they surreptitiously demoed the WTC buildings, and then used that as an excuse to commit genocide around the globe.
2) Our allies. Message: America has changed.
3) Our “on the fence” enemies. Message: America has CHANGED! Secondary message: We just need you to love us because we really hate to be looked upon as hypocritical by not using The Constitutional rights for everyone, the world over. Tertiary message: Will you love us now, PLEASE???????
4) Our true enemies: Just forward your request for complete transcripts of all testimony, evidence and court hearings to: The White House. Fees may be charged for the time/effort of federal employees to reproduce legible, complete copies of all materials relevant to your request, and they just might go out of their way to provide “bonus” material (like the tapes of secret meetings of Dick Cheney), if you act now and pay in advance for the low, low price of $1M per copy. Don’t wait! Prices are subject to change without notice, or at the whim of how successful the ObamaCare train wreck is…we may need the additional revenue! Operators are standing by!
5) Eric Holder’s co-workers from his own firm: DUDES! Just send your retainer requests to the DoJ. We intend to outsource the “public defender” function. And…trust me, the billable hour rate will be commensurate with your experience level in obstructing justice, and representing “detainees.” It shall be an offer you can’t refuse. Returned TARP funds now available to fund your next sweetheart mortgage for a few million for that house of the greedy capitalist down the block who is having a short sale and you can bag it for 50 cents on the dollar….
I could go on, but it would begin to sound like I secretly write for The Onion.
I’m just waiting for the “capture” (irony intended) page and the subsequent “squeeze” pages to appear under a subdomain like “freeclassifiedintellignce.whitehouse.gov.” It is all about using technology to market, isn’t it?
Xformed: All so funny, all so true and all so unfortunately pathetic. I’m laughin’ & cryin’ at the same time. You’ve captured this surreal idiocy perfectly.
Maybe I have a future at The Onion.
Law degrees. Hrmph.
Gramps’s guide for the perplexed.
1. Declare war. Specify the enemy therein.
2. Mobilize the nation.
3. Carry out coordinated and unrestricted land, sea, and air warfare against the enemy until the enemy dies or surrenders unconditionally.
4. Combatants outside the provisions of the Geneva and Hague Accords/Convention will be captured and held for prompt trial by court martial per UCMJ. MCM Table of maximum punishments refers. Hold exclusionary rule in abeyance if evidence valid. Punish those who violate procedure as a separate matter.
5. Fair trial completed, release if found innocent and carry out sentence on those convicted.
6. Seek and detain fugitives from justice until all are assuredly dead from old age with the full resources of the republic.
Steps 4 and 5 applicable once in custody.
Other courses of action are a snare and a delusion. IMHO.
I didn’t graduate from or even go to Harvard Law School. I graduated from a decent middle-tier law school and have been engaged in the general practice of law for 16 years. I’m no Clarence Darrow, but I’m not a complete hack, either.
I am absolutely astounded that this case was moved to the Federal Courts in New York – not because I have no faith in the Court itself. But, because of the Pandora’s box the administration opened for itself.
Suppose KSM is acquitted…OJ was…The Double Jeopardy defense is there. Unless the case is then transferred to the New York State courts where he could be retried on State charges because the State of New York is a different sovereign than the Feds. But, imagine the embarassment.
“Yeah, he was found ‘not guily’ by a jury of his peers, but the government still maintains that he is guilty so we’re just going to send him away anyway…or allow the State of New York to have a whack at him…”
And, given the pre-trial publicity and prejudicial statements of personages no less than The One, how is he going to find an unbiased jury in New York City?
Please pardon the inflammatory nature of the next observation – there are many who believed that OJ’s jury acquitted him for reasons of race. Will KSM’s jury, if composed of minority members, feel compelled to convict because “their” President and AG opined that KSM is guilty?
Hmmm…the mind reels at the possibile defense arguments…
I’m invoking the “Law of Unintended Consequences” (LOUC) in advance. Many minds, far my betters, have commented in detail on what you mention…and with some specifics about what a good lawyer never would have said in advance of a trial….
Oh, is it ever going to suck…and will those who hand out our intelligence gathering info ever man up after the coming attacks and say “We screwed up”? Not holding my breath.
I’m not so sure. If the feds fail on murder charges can’t they just turn around and ding him for violating 3 thousand people’s civil rights? There must have been a few blacks killed when those towers fell down.
What is so markedly different from this trial and the trial of Zacarias Moussaoui? The civilian court put him away nicely (and, it would seem, permanently) enough.
And don’t protections against double jeopardy apply in military tribunals too?
IIRC, Zacarias Moussaoui plead guilty, and a jury refused to return a death sentence.
That’s a ringing endorsement of a civilian trial.
THey didn’t give him the death penalty because we had an agreement with the German government that wouldn’t release evidence against him unless we agreed that the death penalty wouldn’t be pursued.
Well, for one thing Moussaoui was arrested within the US as a legally admitted alien, which gives him the status of a “US person,” and therefore the protection of 14th Amendment privileges of due process under the law. KSM was taken up overseas with the status of an unlawful combatant, and therefore would not ordinarily have had those same privileges. (Hamdi won his habeus corpus appeal based in part because he held dual US/Afghani citizenship).
Among other things, offering KSM the privileges of civil trial muddies the status of other GWOT detainees taken up in similar circumstances.
I don’t think it muddies their status. There are specific international laws against air piracy which would strip KSM of combatant status. Anything after that is simply murder, not combat. Furthermore, the conspiracy for 911 occured before Congressional AUMF. So there’s the ex post facto legal considerations that would have to be addressed in the military trial. Not in a civilian trial.
I don’t know that I can agree with the AUMF as a demarcation point for the status of lawful or unlawful combatants. After Pearl Harbor we were in a de facto state of war with Japan even if the de jure definition didn’t happen until Roosevelt won his declaration of war from Congress. It would be as much as saying that any Japanese war crimes – the Pearl Harbor attack among them – until the declaration of war were purely criminal matters, which would unfairly privilege the aggressor.
It is possible for KSM to be both a combatant and an air pirate, the categories are non-exclusive. I agree that KSM has violated a range of domestic and international laws, and obviously can be tried in any of several venues, from the Hague, to the New York federal, state and city courts and to properly constituted military commissions. The question of where to try him is therefore predominantly a policy-based decision. In this case, I believe the AG has made a poor decision that establishes a two-tier justice system: One for “slam dunks” like KSM, and military commissions for those who remain too dangerous to release but against whom the case is problematical to prove from a civil or national security standpoint. Thus, some overseas defendants will be awarded full Constitutional protections, including due process, discovery, etc. Others will not.
In the long run, that might come around and bite us and it’s hard to see what advantages are gained. We will “show off” our criminal justice system only when we are assured of convictions – show trials, in other words – and use whatever other means are expedient otherwise. Hardly the moral high ground, and not without risk.
Advokaat brings up an interesting tangent, can there be an impartial jury in New York? Like most I belong to far too many e-mail lists and groups. The total is roughly 300 items of correspondence per day. Out of all these people, amounting to perhaps a thousand ranging from Switzerland to North Carolina to Montreal, I am perhaps the only one that did not lose a friend, relative, or even somebody I knew in the 9/11 attacks.
Which I thank God for every day, of course. But can we find 12 people in New York with no opinion on the matter, who knew nobody in those towers, and who wish to be jurors? I’m thinking we’re not bringing our best and brightest in to decide this matter.
– Max
1. Me
2. My family
3. My cronies
4. My staff
5. My leftism
6. My Party
7. The ‘hood
8. The world
9. The Presidency (mine)
10. The security of the United States
11. The US military
The above ordered list of priorities explains pretty much everything.
ERROR: 6. The World 7. The ‘hood 8.My Party Oh, and 1=9
I think you need to renumber 2-11 as 12-21, because 2-11 are also me.
It may be part of a long game against the previous administration. There are an awful lot of people who conducted their interactions with KSM in accordance with DoD policy and the laws of the United States who will have to decline to testify on their 5th amendment rights given that their actions are now being investigated by DoJ.
Good point, JKB, I hadn’t thought about the 5th bit, but I’m sure Holder did, which makes his decision all the more devious and odious: Force Bush era types to publicly declare and look as if they have something “bad” to hide. A very subtle sliming/smear tactic that I’m sure Holder & Obama smiled at as being a most benificial side effect.
I’m not a lawyer; but, I did sleep in a Holiday Inn.
I say, send him to Texas, give him a fair trial, and then hang him. They’ll get it done down there.
Obama: Charlatan or Buffoon? Ans: BOTH
[refraining from asking to add to the list - prior typing expunged]
I’d agree with both.
To me the real question is, why is KSM still alive? The best thing to have done was wring them dry then hang them quietly. Let his compatriots wonder what happened to him. They do what they do for 72 virgins and glory. We can deprive them of their glory, and I can pretty much guarantee, the 72 virgins thing is just a fantasy, although no one has come back to confirm or deny, and I like it that way.
I just shake my head and think this whole thing is so totally sick.
Have you ever heard of something more totally sick than this?
Will the American people finally wake up? Will they finally say that this is enough?
I find it interesting – and I’m happy – that our former VP is keeping silent on this one. I suspect he’s familiar with the advice not to interfere with your enemy when it is in the process of destroying itself.
I am perplexed and dismayed at those who make the argument that Guantanomo and the previous lack of a civilian trial were recruiting advantages for Al Qaeda and Islamic Extremism.
Can anyone explain how a potential Islamic radical is so concerned with American jurisprudence (and not with that of his local state, which is guaranteed abysmal) that the legal intricacies of putting KSM and his ilk through a military trial in Guantanomo vs. a civilian trial in CONUS (which he surely knows intimately) strike him as so unjust and inhuman that he decides to cast his lot with a group that flies planes into buildings to slaughter completely innocent civilians.
Prowler,
And of course it can cut both ways – our demonstrating a 9/10 mentality and contemptible weakness can also be a recruiting tool. One can hear the conversation now” – “Dirka dirka jihad dirka dirka Abdul dirka dirka Beslan dirka” – being translated as “Don’t worry about attacking the infidel, Abdul, cause if they catch you they are going to give you a trial where you have a good chance of walking or of linking up with our cells in their prisons – and when we threaten to blow up enough of their children like we did in Belsan, these infidel ninnies will fold.”
The idea that when we get tough the enemy reciprocates works for a mind that thinks in simple binaries – action/reaction and assumes Bush policies = bad, our enemies = misguided/misunderstood but not bad (like us). It doesn’t work historically- the Soviets started trying to cut deals only when faced with Ronnie the Great (impressively supported by Thatcher, Kohl and Mitterand – and JP II gets honorable mention) – not under Carter, who nattered on and on about human rights and cut our friends off at the knees (is Iran better under the Mullahs than the Shah I wonder?). People who are working toward a better world understand that there will always be limits and tensions between democracy and human rights (what if the majority don’t want to respect the rule of minorities, etc) and will cut us slack – our enemies really don’t care about the elaborate kabuki dances we go through (and the legitimate value questions underlying those dances) where we seek to balance rights and security.
But at least our man-child-in-chief got his Noble Peace Prize.
David
Absolutely. It’s not only asinine to think that our compassion will soften our enemies, I think your hypothesis is correct, that our weakness will embolden them. You have to know your enemy. When you’re negotiating with a trusted member inside your own society on a business deal being hostile certainly doesn’t help (you’ll catch more flies with honey than vinegar). But that doesn’t work with millenial religious radical who want to kill you for no other reason than your infidel status, and have consistently done nothing more than kill innocents. Morality and nuances of legal systems are plainly and obviously NOT on these people’s radar screens.
Also, honorable mention goes to Lech Walesa (spelling?) too I think. Reagan, Thatcher, et al. created the environment in which someone behind the wall could exploit the chink in the armor.
Anyone remember the Ken Starr investigations? and how the dems railed loudly against – of all things – the financial costs involved. MILLIONS spent to uncover – gasp – oral sex and a stain. Now we’re getting ready to spend hundreds of millions on these show trials – something right out of Circus Maximus. BHO tells his departments “cut costs and prepare for a dip in funding cuz we got a deficit”. So lets cut 100 million and leave them in Gitmo. Weather much better there than in NYC.
Just not sure New York is ready for a coordinated multi-car bomb scenario. So ship the court to Gitmo.
Yes…at least there’ll be no cost for snow removal during the trials, and…the whole golfing on the Moon experience when not in the court room!
…as the excellent comments above clearly demonstrate… you don’t have to be a flippen lawyer or to have “experienced a night at a Holiday Inn” Express, to wonder, as a sentient human being,just what the f**k Holder hoped to accomplish by staging this travesty…destruction of the Bush administration’s leagcy?…to show the grandeur of the American judicial system?…who knows…but we’ll soon find out…as it’s becomming clear that this event is shaping up to become…tolerance please…a giant goat f**k, and in my opninion, an unanticipated PR disaster for the Obama Administration…
…so Laddies and Lex Babes…hang on to your sox and get ready, at the taxpayers ( our ) expense, for a remedial course in migrane inducing never ending criminal defense procedure…after which there’s the equally nightmare inducing vior dier of prospective jurors…add to that the just breaking news that Germany is now balking at cooperating in this matter over the death penalty issue and you have months…possably years of leagl falderol and PC la de, flippen da, before this case ever gets to trial…the upside however slim is it’s definitely not good for Obama…the great liberal/black community organizer and soon to be one term failure…one takes what one can get… Best