…when I heard that the administration actually plans to try Khalid Sheikh Mohammed in New York criminal court. But it’s true. Tom Maguire is as flabbergasted as I am. And as the Powerline guys ask:
…suppose that Khalid Sheikh Mohammed’s trial results in an acquittal or a hung jury. Would the Obama administration really let him go? If so, they are crazy. If not, why are they holding the trial?
It’s a show trial. There are regimes that have show trials. They don’t tend to be democratic.
And will evidence from his own testimony be excluded, seeing as how it was obtained under “torture”?
Madness.
[Update a few minutes later]
Andy McCarthy is appalled as well:
We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda’s case against America. Since that will be their “defense,” the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see — in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America’s defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.
Hey, but other than that, it’s a great idea.
[Update a few minutes later]
Who are they going to find willing to sit on that jury? I sure as hell wouldn’t. No civilian should be expected to. How are they going to find anyone impartial, particularly in that location? I predict, at a minimum, their attorney will petition for change of venue, because he can’t get a fair trial in New York. Just watch.
[Afternoon update]
Why bring KSM to the US? A question by Congressman Hoekstra.
Regimes that hold people forever without trials tend to be undemocratic as well.
Do you really think 12 New Yorkers are going to let KSM go? Also, do you really think a US judge is going to let KSM go on some massive fishing expedition into the US intelligence system? I mean, if we can’t trust our own justice system, what is the point of having a government?
Yes
They shouldn’t be held forever without trials, but it often happens that POWs are held indefinitely in war. And they aren’t POWs, they’re war criminals. As McCarthy said, they could have executed them long ago by military tribunal. Bringing them into the US Justice system is insane. I know that you and the president don’t want to believe it, but we really are at war.
Yes, we are at war. However, the POW analogy fails here, because there is no clear ending to this war. The appropriate analogy is the war against piracy. That war featured both no clear ending and use of trials.
I suggest reading dread pirate Bin Laden for both a brief summary of the relevant history and a model to go forward.
That war featured both no clear ending and use of trials.
Not civil trials.
Clicked the “post” button too fast, so apologies for adding this:
If you want to argue KSM is a POW, then anybody who used “enhanced interrogation techniques” against him is a war criminal. It doesn’t matter what the US government said was okay or not – in fact, under the Geneva rules, senior government officials who authorized torture would be just as liable as the hands-on people.
Rand – yes, civil trials, in Admiralty courts.
Do you really think 12 New Yorkers are going to let KSM go?
If you really believe your implication, then as Rand said, this is a show trial, a kangaroo court, and unworthy of the United States. The only kind of trial that should be put on is one in which there is a reasonable doubt about guilt or innocence, and you need a jury to decide the question.
If you are sure he’s guilty of making war against the United States, then he is subject to the sole and arbitrary authority of the President, under his Article II powers as Commander in Chief. He can have him released, held forever, or summarily shot.
It is also, of course, within the power of the President to hand him over to the civilian justice system to have a kangaroo trial held. But that would be pussing out, failing to make the responsible and tough decisions yourself, asking for a committee (of 12 anonymous citizens) to back you up.
All too typical of Barack Obama, alas, a man at whose desk the buck never stops, because there’s always someone — Fox News, George Bush, the Republican Party, teabaggers, racists, blah blah — who is to blame.
C’mon, tell me that even you on the Left haven’t noticed this about the man. Where’s his spine on things you want done, like Don’t Ask Don’t Tell? Gay marriage? Closing Gitmo? Greenhouse gas emissions? It’s time to abandon this sinking fool. Even Nancy Pelosi has more balls.
I think we need to clarify the proper meaning of the word “civil” as an adjective with the word “trial.”
A civil trial as I understood it from my limited legal education, refers to a trial of fact in a civil action — as in, a lawsuit.
A criminal trial is by definition not a civil trial. If KSM is getting a civil trial, who is suing whom?
I think people are using the word “civil” in this matter where what they mean is civilian. And Chris, admiralty courts don’t hold civilian trials.
If you want to argue KSM is a POW
I already told you he’s not. As I said, he’s a war criminal. Read more carefully next time.
…civil trials, in Admiralty courts.
Historically Admiralty courts were arguably not civil courts, and the US has no admiralty courts. Maritime cases are tried by the DoJ.
And a case in which the defendant has confessed, does not so qualify.
Quite frankly, the only way these people should go to trial is if it has already been found by an appellate court that the confession is invalid. Which implies a very definite risk of acquittal.
To the best of my knowledge, though, the confessions have not been thrown out. Which screams — if I may repeat what others have already said — SHOW TRIAL.
McGehee – actually, admiralty courts do hold civilian trials. An Admiralty court is merely a civilian court that has juristiction over maritime matters. BTW, here’s a useful summary of the legal matters relating to historical piracy.
Carl Pham – holding somebody forever is also unworthy of the United States, as is summarily executing them on the say-so of the Chief Executive.
I do think you’re confusing “reasonable doubt.” We don’t reserve trials for when their is a reasonable doubt. Having a reasonable doubt whether or not the accused is guilty is grounds for letting them go.
Regarding “spine” – this is part of closing Gitmo. Greenhouse gas emissions are addressed in a law moving through Congress, as is DADT (which is a law).
Bottom line – If I just wanted a dictator to run the world according to my interests, I’d create the office and install myself. What I want is somebody who will “faithfully execute the laws of the United States.”
I guess here the problem is a combination of “the fruit of the poisonous tree” (evidence disallowed from court because someone did something illegal somewhere along the way) and secret sources that could hurt US intelligence efforts (and get people killed). But my view is that you shouldn’t hold people forever in the US (we being a nation of laws), not even unlawful enemy combatants who committed grievous crimes in a vague war that might outlast the US itself. That means a trial sooner or later.
Even if the US drops the ball on the trial and these guys are freed, we can always kill them later, if they get back into the game. The options aren’t great, but that’s what happens when the government gets sloppy.
I mean, hell, Chris, if you’re in a foxhole and some bastard is shooting at you, where’s your justification for shooting back before the other guy has been convicted by a jury?
Geez Louise. I wonder if 5th century Romans thought this way, which is why they were overrun by barbarians?
Rand – US Circuit Court Admiralty Opinions. Admiralty courts are and always have been civilian courts. They have a different area of juristiction, namely the sea. They are not military courts.
So, if we tried KSM under a military tribunal you would approve?
McGehee – KSM certainly has the option to plead guilty, and I’m sure the prosecuter will try to get his confession entered.
Carl Pham – Let’s not get stuck on stupid – this is a war. Besides, shooting at people who are shooting at you is always justified, war or no. The issue is what you do with people once they stop shooting.
You fire one more shot.
Carl Pham – holding somebody forever is also unworthy of the United States, as is summarily executing them on the say-so of the Chief Executive.
Says who? Speak for yourself. These are just fine by me. Holding people indefinitely is just another word for a life prison sentence, and plenty of people are serving those. You’re going to say oh but gosh they’ve been convicted in court, as if that magic incantation makes all the difference in the world. Well, I don’t think it does. I’m perfectly comfortable with saying that someone who admits to planning the piloting of airliners into buildings needs to be locked away forever (at best). I don’t need 12 random citizens from the phone book to nod their heads in agreement to sanctify that decision.
I also have no problem with the Commander in Chief ordering the execution of the enemies of the United States. That is exactly what he does in wartime. If I, PFC Pham, while slogging ashore at Iwo Jima, shoot and kill a Japanese soldier — even an unarmed Japanese soldier, whom I take by surprise as he’s taking a leak — then the only reason I am not guilty of murder is because the President has authorized me, through the chain of command, to execute his Constitutional powers to make war on the enemy.
That’s why I can’t do such a thing if I’m not in uniform, or if the person in question is not making war on the United States.
You’re just splitting weird hairs. If the President can order the death by Hellfire missile of KSM were he wandering the hills of Afghanistan, then he can damn well order KSM put up against a wall if the wretch is languishing in a cell in Gitmo instead.
Trying a POW in civilian courts is a war crime also.
So, if we tried KSM under a military tribunal you would approve?
I wouldn’t disapprove.
KSM certainly has the option to plead guilty
He already has, and requested execution, almost a year ago. The only purpose of this trial is to put on trial the CIA and George Bush.
Well that’s a feature, not a bug.
Oh, and here comes Chris Gerrib, for whom the sun shines out of Obama’s bum, with one of the stupidest things he’s said yet:
What in the hell? When we held POWs in previous wars, we didn’t know when those wars would end! What the hell is a “clear ending” to a war? And don’t say “we withdraw from Iraq and Afghanistan.” Because all that means is we leave there — it doesn’t mean the war between us and the jihadists is over, and you are incredibly stupid if you think so. Though apparently you, and Obamaco, are that stupid.
convicted in court Well, if it was you doing the life sentence, I suspect you’d want the court hearing. Carl, there are a number of reasons we give people trials. One of them, frankly, is the appearance of fairness. One of the beefs against Saddam, Castro, et. al. is that they lock people up without trials.
Regarding your sands of Iwo Jima moment- if you shot the Japanese soldier after he’d surrendered and spent a few days in the stockade, you would be guilty of a war crime. When you shoot does actually matter.
Al – that’s why I argue for the pirate theory. Pirates are not POWs, so you can try them.
The pirate analogy fails with KSM. It’s one thing to try a pirate caught in the act of piracy. I’ll bet that no pirate was ever tried for conspiracy to organize piracy, with classified intelligence revealed in open court to make the case.
This is insanity. The man is an unlawful combatant who has been subject to military interrogation. Our civilian courts are simply not prepared to handle this sort of thing. This is exactly why we have military courts and tribunals.
And don’t even get me started on the cost of this show trial, particularly the security costs it will be New York’s responsibility to bear.
But McGhee hit’s the nail on the head – SHOW TRIAL. KSM has already confessed to his crimes; this is a farce.
Andrea Harris – in previous wars, there was a clear method to end the war, be it surrender or peace treaty. With whom are we going to sign a peace treaty with in this war? We will be at war with Islamic extremists for decades.
Regarding endless fodder for the transnational Left, you mean more fodder than shoving Uyghurs (who never fired a shot at Americans) in Gitmo for a few years?
I’ll bet that no pirate was ever tried for conspiracy to organize piracy. You lose. Conspiracy is an old concept in common law.
Well, if it was you doing the life sentence, I suspect you’d want the court hearing.
Of course. In fact, I’d want to be let go on a technicality, or, failing that, I’d want to bust out of pokey and change my name, collect my millions, and live high on the hog in Rio.
What’s your point? What the guilty want is of no consequence whatsoever. You are implying that if I was factually innocent, then I’d want the chance to prove it. You bet. And if there was even the tiniest shred of a morsel of possibility that KSM was factually innocent, then we’d have a reason to put him on trial. But there isn’t, and therefore we do not.
Carl, there are a number of reasons we give people trials. One of them, frankly, is the appearance of fairness.
Wrong. There is exactly one reason we put people on trial: to determine whether they did something (bad) they’re alleged to have done. That’s it. Only in cesspools like the Soviet Union did people consider the public relations value of trials. And we’re back to show trials.
One of the beefs against Saddam, Castro, et. al. is that they lock people up without trials.
No, you’re wrong. The beef is that they lock people up who are innocent. If they locked up — even without trial! — those who everybody agreed were guilty of hideous crimes, no one at all (well no one sensible) would complain.
You are fetishizing a conviction at trial, equating it with the state of being guilty or innocent, which is the real underlying criterion. We lock people up or kill them because they are guilty, not because they are convicted at trial. To be sure, the usual way we know you are guilty is that you have been convicted at trial, but that is by no means the only way — as you yourself agreed, one way the police know someone is guilty of a crime and can attempt to kill him is if he is at that moment firing on them. To replace the concept of “guilty of evil” with “convicted at trial” is to badly mistake the means for the end, and mislay your morality entirely. (Particularly since trials are not perfect means; it’s perfectly possible to wrongly convict someone. Do you think we are justified in executing a factually innocent man merely because he was convicted at trial? If not, then you understand — or should — the key distinction here, between being guilty and being convicted at trial.)
Regarding your sands of Iwo Jima moment- if you shot the Japanese soldier after he’d surrendered and spent a few days in the stockade, you would be guilty of a war crime. When you shoot does actually matter.
Wrong one more time. Why I shoot is what matters. And that may have some relation to when, but when is not the key question you think it is. For example, if the Japanese soldier had surrendered, and the President then nevertheless ordered his death, I would be justified in shooting him. (Why would the President do that? I don’t know. Perhaps because I captured him while he was raping ciivilian children? Who knows? The point is that the President can order such things.)
The only question that might reasonably be asked in a civilian court is “Are you a member of AQ?”
The civilian list of crimes simply doesn’t line up with what actually happens in war. Even a guerrilla war.
When you capture an enemy ship, everyone you’ve picked up is a POW. The cook doesn’t need to be “tried” for acts of war against anyone. As far as a civilian court is concerned, the worst crime they might plausibly be tried on is “Providing support to an enemy.” Which would be a mighty tough conviction both from an evidentiary standpoint, and from a jury standpoint.
Just being a member of the Russian military in a hypothetical war is defacto “Providing support for the enemy.” But how on Earth is that “a crime?”
We aren’t at war with a geographical nation state. But AQ is an organization. And they’re certainly at war with us – regardless of whether we realize we’re at war with them.
Gee, Chris, I wonder why you snipped out this part: “…with classified intelligence revealed in open court to make the case.”
Could it be because your link doesn’t support it? Those were captured pirates on the open seas, not captured pirate masterminds.
To replace the concept of “guilty of evil” with “convicted at trial” is to badly mistake the means for the end, and mislay your morality entirely.
I wonder if Chris thinks that OJ is innocent of murdering his wife and her friend?
KSM is neither POW nor pirate. He’s a terrorist. It’s a new category.
He’s not a POW. POWs are professional uniform-wearing soldiers captured during war.
He’s not a pirate. His agenda is militant-political; his goal is to cause the maximum number of civilian deaths to instill terror; and he doesn’t roam the high seas. It’s not enough to call him a “bad guy who isn’t a POW.”
If he were in the Middle East he would be a known category: insurrectionist. AQ is trying to throw down the governments of their homeland (everyone in the Middle East) and replace them with a different government (Sunni Caliphate), just like the Jacobites. And AQ doesn’t even make a pretense of being a State actor or professional military, as the Continental and Confederate Armies did in their day, so POW is still out.
But he’s not being tried in Saudi Arabia. He’s being tried in the United States, where his goal was to change US policy through violence on civilians. That’s what makes him a terrorist. He doesn’t have any hope of over throwing to replacing the US government; he just wants us out of the Middle East so that he can establish the Caliphate there without interference.
What would you call a Leninist that, pre-1917, engaged in a civilian attacks on German and British targets in order to weaken their support of the Tsarist autocracy?
That’s why we don’t have good rules for this; it’s a new category. But a criminal proceeding in a civilian Court is still insane. What sort of discovery will his lawyers have access to? Too much and you risk the nation. Too little, and what’s the point of a trial? Is the Government willing to disclose national security secrets to a civilian Court? If not this should never have been authorized; if so I am frightened for our safety.
…put the government on trial…
Considering everything else this admin has said and done I firmly believe putting America on trial is the whole point.
This government should be impeached for taking actions that imperil Americans.
They say they are certain of getting a conviction… then why have a trial at all? Their’s no chance they will be set free in NY? Then what happened to innocent until proven guiltly. This is either insane or evil. I’m voting evil.
Chris Gerbil:
‘We will be at war with Islamic extremists for decades.’
So because a particular enemy uses a dispersed and un-identifiable command that we cannot negotiate a peace with the US must free the prisoners before the war ends? That’s silly. How about this? You go to war with no process available to issue a cease fire or agree to peace you sit in a cell for a LOOOONG time – until the war ends. Sorry.
“Even if the US drops the ball on the trial and these guys are freed, we can always kill them later, if they get back into the game. The options aren’t great, but that’s what happens when the government gets sloppy.”
What utter insanity is this??? It isn’t “sloppy” to conduct counter-terroism and military ops overseas in ways that maximize the chance of success rather than meet the internal American requirements for admissability in court.
Madness, pure madness.
After the trial is over, will al-Qaeda set out to kill the jurors?
Or will the jurors acquit in order to save their skins?
@ Chris Gerrib: [I]n previous wars, there was a clear method to end the war, be it surrender or peace treaty.
Well KSM must have surrenderred at some point, otherwise he wouldn’t have been taken prisoner and we’d be speaking of him in the past tense.
@Brock – making war out of uniform is considered the work of a spy, which doesn’t really describe KSM (though it might possibly describe this Hassan figure from Ft Hood…?), or it is considered under the Geneva Conventions (those parts of it that we have signed, at least) as actions befitting an “enemy of all mankind” – a.k.a. a “war criminal” (Incidentally, so too is Piracy). And on that score the legal precedent has already been set – a Military Tribunal like the Nuremburg Trials, followed by a visit to the gallows (or, presumably, release. To anyone who knows -were any of the Nuremberg defendants released, or did they all get hanged?).
…were any of the Nuremberg defendants released, or did they all get hanged?
Some were sentenced to life in Spandau Prison.
Thanks, Rand. That’s a third option. Maybe we could use a secure prison, guarded by the military. We could put it on an island for added security, and put it in the tropics to cut down on climate control costs…
I don’t believe anyone died in Spandau. I think Doenitz got 10 years and Speer 20, and the last few years Speer was alone.
In previous wars, there was a clear method to end the war, be it surrender or peace treaty.
So who’s fault is that? If the members of AQ want to be treated according to the conventional rules of war, they can arrange it. They just need to form up into a regular nation, with a capital and flag and whatnot, sign the Geneva Conventions, join the UN, and so forth. Or at the least identify a regular command structure, with someone at the top who has authority to, indeed, surrender or sign peace treaties. We only make peace treaties with those who have responsible commanders who can enforce them. We don’t make treaties with wild animals, for example.
The strictures of civilization that confine the degree to which we inflict primitive violence on each other are a bargain between disagreeing peoples, a way to conduct conflict in ways that limit the collateral damage. But if one party abandons the bargain, the other party is not obliged to continue it unilaterally. The terrorists of AQ — KSM himself — have explicitly rejected the limitations of e.g. the Geneva Conventions. That relieves us of any obligation to honor them ourselves, in the same sense that if in the course of a vigorous argument you throw a punch at me, I am relieved of my obligation not to use physical violence against you.
Rand – we have an established mechanism for handling classified information in civilian courts. We’ve been trying terrorists in civilian courts for decades. The “open disclosure” idea is a canard.
No, OJ killed his wife. But there’s a name for punishing people without due process. It’s called “a lynch mob.”
R. Anderson – if we’re willing to give Goring and Hess a trial, we can surely try KSM. The reason they went with a military tribunal was juristictional. BTW, three of the defendants at Nuremburg walked
The Bush administration’s point about using Gitmo had nothing to do with security (Leavenworth isn’t exactly wide open) and everything to do with an argument that US laws didn’t apply there.
Al – no, in your case the cook would be charged with conspiracy to commit a terrorist act.
Carl Pham – President then nevertheless ordered his death, I would be justified in shooting him. No, you (and the President) would be war criminals.
JD Sherman – so if we kill Bin Laden, the war is over? Please define what you would consider victory in this war.
Brock – I wish you’d read the article I linked to upthread. It is an extension to call terrorists pirates, but not much. And some terrorists are pirates – see Reagan’s language regarding the Achilles Lauro incident. Piracy does not require “intent to make money” as an element of the crime.
Your hypothetical Leninist terrorist of 1917 would be tried as a criminal in British courts. Because that’s what he is, a criminal.
Carl Pham – so if Bin Laden takes over some south Pacific island and runs up a bedsheet, you will negotiate with him? No, you’d go in and get him, and if he survived the shootout, you’d try him.
Just like if Dread Pirate X took over a deserted island. Like, say, the western coast of Hispanola. I thought conservatives wanted to hold onto the old ways until they are proven not to work?
…there’s a name for punishing people without due process. It’s called “a lynch mob.”
Are you saying that a mllitary tribunal is a “lynch mob”? If not, what are you saying? Is anything other than a trial in the US civilian justice system a “lynch mob”?
The Bush administration’s point about using Gitmo had nothing to do with security (Leavenworth isn’t exactly wide open) and everything to do with an argument that US laws didn’t apply there.
That’s right, which is why they’re having so much trouble shutting it down, despite Obama’s foolish pledge and executive order. There are damned good reasons not to bring war criminals into the US civilian justice system.
What utter insanity is this??? It isn’t “sloppy” to conduct counter-terroism and military ops overseas in ways that maximize the chance of success rather than meet the internal American requirements for admissability in court.
If the bad guys get released a few years after capture, despite committing crimes that should have gotten them life or worse, due to “internal American requirements for admissibility in court”, then the operations weren’t conducted in ways that maximized their chances of success. I think describing the Bush era operations as “sloppy” is accurate.
Karl there is no good reason–beside the desire of the Obama Adminstration to destroy the Bush Adminstration–for this trial to occur. It isn’t “sloppiness”–it’s wanton disregard for the safety of the United States on the part of the Obama Adminstration.
Rand – I’m arguing with Carl Pham, who seems to want to just shoot everybody at Gitmo. I would accept a military tribunal. Apparently Obama and Holder think they can get a conviction in civilian court. If KSM is so eager to confess, they may be right.
Frankly, if the CIA had just shot KSM where they found him, I would be okay with that. Once a government decides to publicly capture somebody, the Western moral code says you treat that person humanely.
Frankly, if the CIA had just shot KSM where they found him, I would be okay with that.
I wouldn’t. They would have lost a lot of actionable intelligence had they done so.
Once a government decides to publicly capture somebody, the Western moral code says you treat that person humanely.
“Humanely” != “Civilian trial in New York”
…were any of the Nuremberg defendants released, or did they all get hanged?
Of the 24 defendants at the first “main” trial, 12 were sentenced to death (only 10 carried out, due to Goring’s suicide and Borman being tried in absentia), 2 were not tried due to medical infirmity or suicide, 7 sentence to prison (3 for life), and 3 were acquitted.
Chris Gerib, reread my comments. Military Tibunal like Nuremburg. That is not serving an indictment to be read in NY Superior Court and made into an episode of “Law & Order!” That is effectively a courts-martial for enemy unlawful combatants – which is PRECISELY what we’re looking for.
Let every American taxpayer know, whether they wish us well or ill, that we shall force them to pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of our nutty idealistic notions, particularly the one about treating terrorism as a law-enforcement matter.