The Coming Show Trial of Khalid Sheikh Mohammed

Posted by Enrique on 11.18.2009

A question of technicality




Last week, Attorney General Eric Holder made the controversial announcement that suspected 9/11 plotter Khalid Sheikh Mohammed would be prosecuted in U.S. criminal court for his alleged crimes against humanity. Conservative critics of President Barack Obama immediately fretted KSM may get off on a "technicality" and advocated military tribunals as a preferable method for adjudicating the accused terrorists. Trying to have it both ways, the Obama administration will in fact employ military commissions for various other Guantanamo detainees, including accused U.S.S. Cole bomber Abd al-Rahim al-Nashiri.

Well, that doesn't seem fair, does it? One clique of accused terrorists gets a civil trial and the other gets Nuremberg – that simply will not do. Former president Bush was properly criticized for holding accused terrorists without due process, and now Obama wants to fix the problem by instituting show trials? As they say on Fark, you're doing it wrong.

The story so far…


Spinal failure

Once and future presidential candidate Mike Huckabee was in Orlando recently to promote his new treacly, presumably self-serving Christmas book. While he was there, he stopped to give an interview to a local affiliate in which he opined on the political implications of Holder's KSM decision:

"Well, I think it's absurd, and I think the Obama administration will be as much on trail as Khalid Sheikh Mohammed," said Huckabee.

He says the terror suspects will use their trials as a platform to spout anti-American venom.

"And God help us if they get off on a technicality because of the way the evidence was gathered," said Huckabee. "I would tell you not only is the Obama administration finished, I think the Democratic Party is finished."

Beware the calamitous "technicality!" These blasted legal technicalities are just dreadful, especially when they threaten to unleash violent terrorists and probably sexual predators on us all, particularly our children. Won't someone think of the children? DAMN YOU, TECHNICALITIES!

Ahem. As you may be aware, the U.S. crime rate has been steadily declining for almost 20 years now. At the same time, America has the highest incarceration rate in the whole damn world. And as I wrote last week, the criminal justice system is significantly biased in favor of the state. It would appear any fear of technicalities preventing convictions is unfounded and just a bit silly.

On the other hand, Huckabee's reduction of Holder's decision to petty political calculus isn't without merit. Why else would Holder try some Gitmo detainees via military commissions and others in civilian court? At his press conference announcing his decision, Holder admitted the conviction of KSM and his collaborators in criminal court was a foregone conclusion:

"I've looked at the evidence. I've considered the problems that these cases present. And I am quite confident that we're going to be successful in the prosecution efforts," he told reporters.

"If I was concerned about the forum not leading to a positive result or if I had a concern – a different concern, you know, we would perhaps be in a different place," he continued. "But the reality is – and I want to be as assuring as I can – that based on all of my experience and based on all of the recommendations and the great work and the research that has been done, that I am quite confident that the outcomes in these cases will be successful ones."

When Holder says, "we would perhaps be in a different place" if he wasn't certain KSM would be convicted in criminal court, the implication is the proceedings against KSM and his colleagues will be show trials reminiscent of the worst totalitarian regimes. Presumably, Holder is relying on KSM's longstanding reputation as a braggart – he's proud to have participated in the 9/11 attacks and is expected to confess his culpability. Otherwise, KSM would be facing military commissions along with al-Nashiri.

Of course, KSM might be persuaded to change his mind and withhold a confession. If he were, he would have several worthwhile strategies at his disposal. Writing at Foxnews.com, conservative lawyer Ken Klukowski lists six arguments he'd make if he were KSM's attorney:

1. That his Fourth Amendment rights were violated by letters and conversations that the government intercepted without a search warrant.

2. That his Fifth Amendment rights against self-incrimination were violated if the government attempts to use statements made before he was read his Miranda rights or after he was waterboarded (since the Obama administration calls it torture).

3. That his Sixth Amendment rights were violated by not providing a speedy trial, that the Speedy Trial Act (a federal statute) has also been violated, and that he has been denied adequate legal counsel.

4. I would also say he cannot get a fair trial in New York and move for change of venue.

5. I would challenge the admissibility of any evidence that was unsecured even for an hour, challenge the authenticity of any offered evidence, insist on his Sixth Amendment right to confront every witness against him, including the capturing officers, interrogators, guards, transport personnel, and whoever else I can think of.

6. I would raise objections of circumstantial evidence, hearsay, the witnesses ' integrity, and every other conceivable objection to the evidence and every procedural step.

I think most of us would agree the Fourth, Fifth, and Sixth Amendments aren't technicalities. Given that we know KSM was waterboarded, it seems obvious his constitutional rights were violated. Why Holder would extend those constitutional rights to accused war criminals who aren't U.S. citizens in the first place is baffling. Given the fact KSM has exhibited signs of mental instability, we don't even know if his confessions are genuine. He may well be exaggerating his role in 9/11 out of a perverse sense of megalomania or a desire to be revered as a martyr. Holder seems pretty damn sure of himself, but I bet Bill Belichick was pretty damn sure he could convert that fourth-and-two against the Colts. I have very little faith when a government official pursues a bizarre policy and then says, "trust me."

I'm not in favor of detaining suspected terrorists at Guantanamo indefinitely without due process, regardless of whether or not they're citizens. Based on his campaign rhetoric, and his original pledge to close Gitmo, President Obama seemed to agree with that position. However, using different venues to conduct trials of separate groups of accused terrorists based on how likely a conviction is makes a farce of due process. In what appears to be a recurring theme, Obama has taken a bad Bush policy and somehow made it even worse. Talk about change you can't believe.

Based on all available evidence, the 9/11 attacks were orchestrated by a foreign organization as an act of war. They are analogous to Pearl Harbor, not Oklahoma City. As such, military tribunals would be a perfectly appropriate venue for rendering judgment on the alleged perpetrators. The Democrat-controlled Congress reformed the Bush-era Military Commissions Act, and Obama signed it just three weeks ago. There are serious concerns about the fairness of military tribunals, and those should be continuously debated. But that doesn't change the fact 9/11 was a war crime, and should be treated as such under a martial, not civil, system of justice.

And incidentally, could someone please tell Obama part of due process is not proclaiming someone will be put to death before the trial has even begun? It's enough to make you wish we had a more qualified, less amateurish chief executive.


C'mon, like she'd be any worse