That will be the result of this insane decision to try KSM in New York:
For over two hundred years we were careful to keep a firewall between civil and martial law. We did so because civil and martial law are polar opposites. Civil law is focused on protecting the rights of the accused against the overwhelming power of the state. When there is doubt, the accused walks free. Martial law is focused on imposing a minimal order on bloody chaos. It was focused on allowing the military to complete its mission and win wars. When there is doubt, the accused is presumed guilty.
Now, Obama wants to bring martial law into a civil court room in Manhattan. In order to let a civil conviction of KSM stand, the higher courts will have to overturn almost all the current constitutional protections of the accused.
They will have to overturn the requirement for Miranda warnings. They will have to overturn the Fifth Amendment protection against self incrimination. They will have to overturn the right to face one’s accusers and to examine all evidence and evidence gathering methods.
Even if the courts throw out his conviction, the government will never allow him to go free, so we will toss out protection against double jeopardy if they try to convict with a military tribunal, and toss out the right of no imprisonment without trial if they don’t.
Our system of justice relies on precedent and equality of procedure. The same rules apply to every civil trail. We can’t say that it’s okay to deny the right against self-incrimination in one person’s trial while saying it’s okay in another. If the courts overturn the rights of one individual accused, it must overturn the rights of all of them.
Nothing good will come of this trial.
Of course it will. It will show how evil the BusHitler was.
[Afternoon update]
Memo to Obama: these detainees are not soldiers in this war, they are the weapons.
[Update mid afternoon]
How hard will it be to convict KSM?
[Update late afternoon]
Here’s a hall of shame: the list of Senate Republicans who supported Eric Holder for Attorney General.
[Update a few minutes later]
Remember what KSM said after his capture: He would tell us everything when he got to New York for his trial. We told him: You’re not going to New York. First, you’re going to spend a little time talking to the CIA. And under CIA questioning, KSM — together with other CIA detainees — gave us vital intelligence that helped stop a number of attacks, including a plot to fly an airplane into the Library Tower in Los Angeles; a plot to fly airplanes in the Heathrow Airport and buildings in downtown London; a plot to blow up our consulate in Karachi; a plot to blow up our Marine camp in Djibouti; and many others. His interrogation produced thousands of intelligence reports, and helped us wrap up the two main terrorist networks still at large at the time of his capture: the remaining members of the KSM network that had planned the 9/11 attacks, and the key members of the Hambali network that was working with al-Qaeda on follow-on attacks.
Once we had exhausted KSM as an intelligence source, President Bush transferred him and 13 other detainees from CIA custody to Guantanamo Bay so that they could face justice. If it had not been for the legal obstacles Andy cites, their trials would have begun soon thereafter.
And had it not been for the Obama administration, KSM and his partners would now be sitting on death row. KSM and his co-conspirators offered to plead guilty once their military commissions got underway and proceed straight to execution — until the Obama administration suspended the proceedings. This means that, with his decision to give KSM a civilian trial, Eric Holder effectively rejected KSM’s guilty plea, and told him, “No, Mr. Mohammed, first let us give you that stage you wanted in New York to rally jihadists to kill Americans and incite new attacks.”
Thanks, Eric.
[Evening update]
The worse the terrorist, the more rights he gets. Great incentives, guys.
I used to think that accusations like “They don’t believe in the Rule of Law” was hyperbolic, but it seems less so every day. The only way that the legal compromises necessary to convict KSM can be “Okay” to the decision-makers that sent him to NYC is if they truly do not believe that the same rules will apply to them.
The ONLY way this doesn’t end in complete and utter defeat for the Rule of Law is if the Courts create a special “Terrorist doctrine” to try this guy, and then essentially try to make sure that it’s never used again.
But of course, we all know what happens once you open Pandora’s Box …
Andrew McCarthy:
If we’re “lucky,” we’ll get a Jack Ruby moment.
On the news this morning (local Fox station, I think) I saw a report claiming that putting KSM and Gitmo prisoners in a civilian prison (the one where another jihadist, I mean, Misunderstander of Islam, blinded and crippled a guard) would create several dozen jobs.
So you see, folks, ya’all can just stand down. It’s all about the stimulus.
I don’t know what the legal background of the Chicago Boyz are, but real lawyers tell me we can have this trial without disclosure of classified information. There’s something call the Classified Information Procedures Act which we’ve been using for years to try terrorists.
djmoore – it’s not like the Americans we put in prison are Boy Scouts, you know. American prisoners attack and threaten American guards every day.
As I said before, this is about putting a guy on trial, a man well known by a three letter sobriquet. But the letters aren’t K S M, the letters are G W B.
Der Schtumpy – you keep saying that. Saying something does not make it true. If Obama really wanted to put GWB on trial, he’d do so – and about a third of his base would be cheering from the rooftops. (I would not be among that third.)
Benedict Arnold received due process within weeks.
Der Schtumpy – you keep saying that. Saying something does not make it true. If Obama really wanted to put GWB on trial, he’d do so – and about a third of his base would be cheering from the rooftops.
No, Chris. He can’t do that without serious political blowback. It’s true that the hard left in this nation wants to put Bush and Cheney on trial for war crimes. However, the rest of the nation wants to go forward, not backward. A war crimes trial against the former prez and vice-prez, might be politically catastrophic for the Dems. Obama is a bright guy, and he knows this.
By putting KSM and company on trial in NYC, Obama is able to split the difference. He can placate the hard left’s wish to put the former administration on trial with only minor political risk to himself and the party.
It’s a smart move politically. But it adds unnecessary risk to the nation’s security (not to mention NYC). It was completely unnecessary, AND contrary to what then Senator Obama called for two years ago.
Saying “Saying something does not make it true.” doesn’t make it untrue either.
Civil law is focused on protecting the rights of the accused against the overwhelming power of the state. When there is doubt, the accused walks free. Martial law is focused on imposing a minimal order on bloody chaos. It was focused on allowing the military to complete its mission and win wars. When there is doubt, the accused is presumed guilty.
This is not “martial law”, since it’s not a military trial – martial law is the state of affairs when the military takes over the administration of normal justice.
The UCMJ, Article 51 (c)(1) states the presumption of innocence in US courts martial, so that’s a non-starter even if this was a military trial.
(Now, the UCMJ doesn’t apply to a mere tribunal held for Geneva Convention purposes… but those tribunals also aren’t determining “guilt or innocence” on a legal charge either.)
This is a disappointing level of analysis from ChicagoBoyz; I expect better from them.
Hey Rand, what’s with that weird post in position #11?
“In order to let a civil conviction of KSM stand, the higher courts will have to overturn almost all the current constitutional protections of the accused.
They will have to overturn the requirement for Miranda warnings. They will have to overturn the Fifth Amendment protection against self incrimination. They will have to overturn the right to face one’s accusers and to examine all evidence and evidence gathering methods.”
This does seem to be an interesting point, and I haven’t seen anyone yet explain why it ain’t so.
It then occurs to me that, this could BE the point. Give us unprecedented power to prosecute anyone we dislike outside the current bounds of law, or we’ll let this hardened terrorist mastermind go! (Buy this magazine or we’ll shoot the cute puppy!)
You have to ask yourself, who benefits? If the result of an apparently stupid decision is vastly more power in the hands of the current administration, it’s maybe not such a stupid decision after all…
cynically
Porkypine
“If we’re “lucky,” we’ll get a Jack Ruby moment.”
And between those who’d enjoy delivering that, and those who’d give anything (including their lives and those of anyone else unfortunate enough to be nearby) to free him…I’d really hate to be one of his guards.
This very kind of circus is exactly why I said some time back that I’m not interested in taking Osama Bin Laden alive. An identifiable corpse would be quite sufficient.
You have to ask yourself, who benefits? If the result of an apparently stupid decision is vastly more power in the hands of the current administration, it’s maybe not such a stupid decision after all…
cynically
Porkypine
So, Obama is trying to provide KSM and the others with constitutional rights in order to destroy constitutional rights? Are you going to start screaming “CONNECT THE DOTS PEOPLE!”
There is a fine line between cynicism and paranoia, and I think you just crossed it. =)
Hey Rand, what’s with that weird post in position #11?
It’s a track back to another blog.
Tsk. C’mon, now. What does Team Obama need right now, more than anything else? Two things:
(1) Fire up the base. Pass health care, dammit! Transformative President Here, all others STFU! Yes We Can, racists and teabaggers!
(2) Distract the rest of America from the trainwreck that they’ve made of the economy. That you don’t have a job after a full year of “recovery” fades into the background when there are existential issues like whether KSM should be hung or let free, or whether the Bush Adminstration commited warcrims when it waterboarded him, etc., to be debated.
Do recall how Stalin used show trials to great effectiveness, to distract his countrymen from the millions starving in the Ukraine from his stupid policies, and from the fact that he reversed himself and moved away from the pure socialist state he promised.
Yes, this trial will be the Trial o’ The Century, and drive absolutely everything off the nightly news and front page of the newspaper for months and months, starting…why, just about right now.
Which would be very helpful to Obama and the Democrats in Congress.
Chris, you should read the act. Real, real, real lawyers that I talked to said that even with this act, classified information will be made available to the defendant. For you to write that none will be disclosed is naive at best. The court gets to determine what and when, not the prosecution. You can argue about the level of information released but there will be some.
http://www.fas.org/irp/offdocs/laws/pl096456.htm
kayawanee Says, says
“So, Obama is trying to provide KSM and the others with constitutional rights in order to destroy constitutional rights? Are you going to start screaming “CONNECT THE DOTS PEOPLE!”
There is a fine line between cynicism and paranoia, and I think you just crossed it. =)”
Heh. You’re mistaking me for someone who gets excited about all this. Nope, I just sit back, assume the worst, and observe. And seldom am I disappointed… You, on the other hand, I forecast much disappointment for, if you think Obama & Co give two figs for KSM’s constitutional rights. This trial is guaranteed to be a circus, and Obama & Co are, nudge nudge wink wink, implicitly guaranteeing a conviction. And any little legal niceties that threaten to get in the way will be rolled over to a roar of popular acclaim.
Ignore stated intentions, assume that the likely results were probably the desired results and figure out why, and you’ll understand politics a lot better.
Then again, “never assume conspiracy when stupidity suffices to explain the facts” is also wisdom.
Which is true in this case? Time to throw some popcorn in the microwave then kick back and see how the latest act of the Hope’N’Change follies comes out. Interesting times…
cynically
Porkypine
Sigivald,
This is not “martial law”, since it’s not a military trial – martial law is the state of affairs when the military takes over the administration of normal justice.
It is martial law in the sense that we are using the procedures and standards that we would use in dealing with an illegal combatant in an active war zone. Virtually nothing about KSM’s tracking, capture, detainment, interrogation, evidence collecting etc would pass constitutional muster in a civil trial.
I don’t think we have any evidence at all that can stand full disclosure and independent review. The governments case will boil down to, “He did it, trust us.”
Any trial based solely on the government’s unquestioned say-so is a farce. A military tribunal provides more protection to the accused than a show trial trumped up by politicians.
You know, we managed to use military force to capture and try Manuel Noriega in a civilian court. Looking at the Chicago Boyz analysis:
Miranda Warnings – not an issue. KSM was arrested in Pakistan by ISI agents. Like any other extradition, if foreign authorities are involved in the arrest, their law applies.
Fifth Amendment – only an issue if the government tries to use evidence obtained when we tortured him.
Right to confront accusers – we have a Classified Information Protection Act which has passed constitutional muster to allow KSM to get what information he needs. Remember – we’ve tried terrorists in US court before.
You, on the other hand, I forecast much disappointment for, if you think Obama & Co give two figs for KSM’s constitutional rights. This trial is guaranteed to be a circus, and Obama & Co are, nudge nudge wink wink, implicitly guaranteeing a conviction.
Read my first post. I harbor no illusion that Obama is acting out of some sort of pure, noble motive. On the contrary, I believe that this is little more than red meat for his base. I also agree with what Carl Pham wrote, in that this circus will also distract the population and deflect criticism of Obama’s policy failures.
I’m a pretty cynical guy, and Hopey Changey doesn’t do it for me. However, I simply can’t buy into the idea you are suggesting: that the ulterior motive is neither red meat for the base, nor distraction for the masses, but rather a subtle power grab devised to strip citizens of their constitutional rights. It’s not that I think it’s impossible, it’s that there are far simpler reasons for enacting such a policy, and I don’t believe Occam would take a shine to yours.
It is martial law in the sense that we are using the procedures and standards that we would use in dealing with an illegal combatant in an active war zone.
What procedures and standards, in particular? Surely he can be convicted with evidence that meets Constitutional standards.
kayawanee Says:
“However, I simply can’t buy into the idea you are suggesting: that the ulterior motive is neither red meat for the base, nor distraction for the masses, but rather a subtle power grab devised to strip citizens of their constitutional rights. It’s not that I think it’s impossible, it’s that there are far simpler reasons for enacting such a policy, and I don’t believe Occam would take a shine to yours.”
Tsk. You’re reading things I didn’t write. Why can’t it be all those things at once? One stone, many birds… All those things except “subtle”, that is; this affair is about as subtle as a brick upside the head.
cynically
Porkypine
American Citizens’ Rights =/= Enemy Foreigners’ “Rights”, oh wait, this world is a post 1960’s world, my bad.
Chris G,
I keep saying it for the reasons voiced by others after me.
The current WH crowd can’t find a legal, above board way to go after GWB and anyone whoever worked for him. So he’s doing an end run around “legal, above board” and putting KSM on trial in NYC. It’s a civilian trial so the defense can call damned near anyone they want to the stand.
THEN the Bushites can stand behind national security, needs for intel secrecy, and refuse to testify. In the end, they look like fools to the general populace. The great unwashed, unschooled, who believe in truth, justice and the American Way. But who understand nothing about the difference in Top Secret, Secret and Aunt Martha’s family biscuit recipe, that she’s never revealed.
And when 2010 rolls around we’ll see Obama ads where Bush REFUSED to tell the truth.
I keep saying it Chris, because the left wing goofs have been screaming for Bush’s head since SCOTUS put a stop to the recounts. I keep saying it because the left wing nuts can’t Impeach him in arears.
THIS crap is the next best thing to them Bush on the defensive for going after misunderstood Islamic freedom fighters. As McGehee said, it doesn’t make it untrue either.
Jim,
Surely he can be convicted with evidence that meets Constitutional standards.
There is no chain of evidence. How do we know the evidence hasn’t been tampered with or fabricated? How can the defense examine evidence such as communications intercepts and the technology that produces them? For that matter, what independent evidence do we have that the individual in custody is even the individual who occupied the position in Al-Quada?
In a civil trial,the defense gets to examine all the evidence and the methods used to generate that evidence. That isn’t going to happen in a terrorism case. Al-Quada is being tracked with the same level of technology we used to use to fight the Cold War. We’re not going to expose that to world view.
The question isn’t whether he can be convicted. The question is whether he can be proven innocent and he can’t. There is no conceivable source of evidence that could defeat the governments case. The government provides all the information in the trail including the very identity of the defendant.
The question is whether he can be proven innocent and he can’t.
Actually, that’s not the question. He has no burden to prove himself innocent. One of the nutty things about this is that he goes into that court presumed innocent. The burden is on Holder’s Justice Department to prove him guilty. Their burden is made all the greater by the fact that almost all of their evidence is tainted by normal constitutional standards.
Surely he can be convicted with evidence that meets Constitutional standards.
Who cares? This isn’t the point. The point is that national security interests demand that this man be dead or locked up forever. This man is a capable and committed leader of a group that has made war against the United States, and will continue to do so if possible. It’s no different than if we’d snagged Hitler after the surrender of France and the Battle of Britain, but before Pearl Harbor. Even though he’d have committed no “crimes” whatsoever according to American law, having not yet attacked America directly, only a madman or idiot would let him go.
There are therefore only two possibilities:
(1) this is a real trial, and there is some chance he goes free. From the point of view of national interest, that is as insane as selling plans for the newest nuclear warhead to the highest internatioal bidder, hoping it’s the friendly Brits instead of the Iranians.
(2) there is zero chance that he will go free, in which case this is a bogus show trial, and it demeans the whole concept of a trial, turns it into a international political tool, the kind of PR Kabuki theater the Soviets used to pull. Blech.
Since Team Obama are generally Stalinists, we know they have no problem with (2). For them, everything in life is a PR game. They would laugh at the notion that just because they’re putting KSM “on trial” they must let him go free if he’s acquitted. That kind of intellectual consistency they find antiquated, stupid, so 20th century. By me that kind of cat toying with a mouse cynicism stinks like week-old fish.
He’s an enemy, yes. But even enemies should not be used in cynical PR stunts. Put him up against a wall, or lock him away forever. But please let us not pretend to try his guilt or innocence, pretend to give him a chance to “prove his innocence,” knowing full well that our national interests make it utterly impossible that he should succeed and go free.
“THEN the Bushites can stand behind national security, needs for intel secrecy, and refuse to testify. ”
actually incorrect. National security designations are determined by the
President, The Director of Central Intelligence and the Secretary of Defense
or energy, State,and from these 5 their designates.
The Former Secretary of Defense may not determine something is classified
if the current SecDef has declassified something.
Rand, your ability to believe 6th impossible and contradictory things before breakfast is what keeps me coming back even when the rank and bilious hypocrisy of you and your commentators makes me feel quite ill.
To think, just a decade ago I was being lectured on this stuff by Americans of Irish descent who were saying that it was intolerable that a democracy like Britain was holding non-jury courts in judgement of terrorist suspects rather than using a so-called “fair system”.
Of course, the IRA only killed tens and caused a few tens or hundreds of millions in damages – but I’m not entirely sure that a scale difference is something you want to enter into moral judgement on is it?
The remnants of the London and Madrid bombers were handled in civil court – does that mean that the US in this realm, like healthcare and so many others, remains in capable of doing what Europeans seem to be able to manage?
Daveon, I trust you will bear in mind that “American of Irish descent” who lectured you about non-jury trials of IRA bombers are on the political left? For example, the biggest (literally) member of that category, the late unlamented Senator Kennedy? You’re not likely to find them hanging around here, except as pincushions and punching bags.
Nor would I, if I were you, hold up the London and Madrid response to terrorism as some kind of shining example. Basically, the British and Spanish governments have totally caved to the Muslim fanatics. The Spanish more spectacularly, of course, but I hear you’ve got sharia courts already going on over there.
Been required to tug your forelock to an imam lately, for fear of having your worthless infidel head chopped off? No? Well, it’ll come. So much for your “civilized” response.
Carl, Daveon’s lecturer need not have been a leftist — just an Irish-American blockhead.
(Disclaimer: I have substantial amounts of Irish on both sides — some of them have been major blockheads.)
Carl has beaten me to it, but yes, DaveOn’s unironic chest-beating “ur doing it wrong!” is hilarious given how much ground the Moors are taking in Hispania, Gaul and neighboring hinterlands.
Carl Pham – you mean like the dreaded sharia courts in Texas? (Google is a wonderful thing.)
Dude, seriously, get a grip on yourself before you wet your pants. The British and Spanish governments tried, convicted and imprisoned the surviving terrorists. Both those governments also proved quite effective at rounding up other terrorist groups.
Lastly, as Daveon points out, the Brits have been dealing with terrorists since at least 1916. In fact, in 1916 they tried shelling Dublin – look what that got them!
From the Hilarity Ensues Department, Repubs who endorsed Holder wake up:
The charms and glamours have worn off, have they?
This man is a capable and committed leader of a group that has made war against the United States, and will continue to do so if possible.
Just to be clear, KSM was not an Al Qaeda leader, he declined to swear allegiance to Bin Laden and operated as a semi-independent agent. He is not a superhero, and would not be a very effective threat if (by some anti-miracle) he was ever freed; his high profile would be a serious impediment to future secret plotting. The most dangerous terrorists are the ones we haven’t heard of yet.
this is a real trial, and there is some chance he goes free.
Did Timothy McVeigh have a “real trial”? The 1993 World Trade Center bombers? The London and Madrid bombers? Or were those all for show?
You say we can’t count on fair trials to find the most dangerous criminals guilty. But in fact they are easier to prove guilty than ordinary criminals, because the behavior that led us to consider them so dangerous also left a trail of evidence that can be used to convict them. Have some faith in our courts and juries.