Bad Law
When KSM is tried in a civilian court, you will lose many of your Constitutionally-guaranteed rights to a fair trial:
Good criminal defense attorneys are seldom deterred by futility, so it’s reasonable to expect that KSM’s lawyers will make all the arguments there are to make: They’ll allege a violation of KSM’s right to a speedy trial, claiming that the years he spent in CIA detention and Gitmo violated this constitutional right. They’ll seek suppression of KSM’s statements, arguing (persuasively) that the torture he endured—sleep deprivation, noise, cold, physical abuse, and, of course, 183 water-boarding sessions—make his statements involuntary. They will insist that everything stemming from those statements must be suppressed, under the Fourth Amendment, as the fruit of the wildly poisonous tree. They will demand the names of operatives and interrogators, using KSM’s right to confront the witnesses against him to box the government into revealing things it would prefer to keep secret—the identities of confidential informants, the locations of secret safe houses, the names of other inmates and detainees who provided information about him, and a thousand other clever things that should make the government squirm. The defense will attack the CIA, FBI, and NSA, demanding information about wiretapping and signal intelligence and sources and methods. They’ll move to dismiss the case because there is simply no venue in the United States in which KSM can get a fair trial.
All of these motions and three dozen more will be either denied or denuded of any significant impact on the disposition of the case. The speedy-trial argument will fail. Important documents will be scrubbed and redacted to the point of unintelligibility or will be ruled irrelevant. The motions to dismiss will all be denied. And though some of KSM’s statements will be suppressed in order to preserve the appearance of impartiality and integrity, plenty of the most damming ones will remain admissible. While condemning in stern language the terrible treatment of KSM and denouncing water-boarding as beneath the high standards of our justice system, the trial judge will nonetheless admit into evidence statements made by KSM in subsequent military tribunals, along with those made to a so-called “clean team” of interrogators, rendering all the suppressed evidence utterly insignificant.
In an idealized view, our judicial system is insulated from the ribald passions of politics. In reality, those passions suffuse the criminal justice system, and no matter how compelling the case for suppressing evidence that would actually effect the trial might be, given the politics at play, there is no judge in the country who will seriously endanger the prosecution. Instead, with the defense motions duly denied, the case will proceed to trial, and then (as no jury in the country is going to acquit KSM) to conviction and a series of appeals. And that’s where the ultimate effect of a vigorous defense of KSM gets really grim.
At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent. The judicial refusal to consider KSM’s years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM’s initial torture from his subsequent “clean team” statements will provide a blueprint for the government, giving them the prize they’ve been after all this time—a legal way both to torture and to prosecute.
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November 20th, 2009 at 11:52 am
Your arguing against our entire legal system, the very bedrock of our free society, in this idiotic post. You propose NO reasonable alternative that is consistent with the founding principles of our nation, you only complain about the system as it is.
WHY DO YOU HATE AMERICA????
November 20th, 2009 at 12:02 pm
Some of Bush’s own lawyers said it was a good idea.
Bush Justice Officials: Smart Move To Try Alleged 9/11 Mastermind In Federal Court.
The key is to get civil trials for all the defendants because many of these people are clearly innocent.
November 20th, 2009 at 12:15 pm
Warner:
“WHY DO YOU HATE AMERICA????”
How odd. I was thinking that question should be directed at yourself.
In any case, if the wonderful legal and constitutional system is to be relied on, KSM will soon be a free man.
November 20th, 2009 at 12:53 pm
The Constitution is not a suicide pact.
November 20th, 2009 at 1:05 pm
You have a higher chance of being killed by your toaster than a terrorist. How many people feel scared of terrorists during the average day.
I doubt that many unless you’re fighting for Obama in Aghanistan or Iraq.
November 20th, 2009 at 1:17 pm
That’s the point here. By giving KSM a civilian trial, we’re undermining the rights of all Americans. It’s not worth it.
November 20th, 2009 at 1:37 pm
Well I’d like to know if his confessions were gained through torture and what kind of torture was used on him.
I don’t trust military tribunals to give him a fair trial.
November 20th, 2009 at 1:38 pm
Gold bull interview
November 20th, 2009 at 2:13 pm
“The Constitution is not a suicide pact.”
That glib reply does nothing to justify your viewpoint…you Republican/Conservatives try to make out every issue you disagree with as a matter of “life-or-death”…what a joke.
“That’s the point here. By giving KSM a civilian trial, we’re undermining the rights of all Americans. It’s not worth it.”
Freedom is not Free. Nor easy. Get used to it. Or move back to your home country, wherever that may be.
November 20th, 2009 at 3:25 pm
Warner:
“you Republican/Conservatives try to make out every issue you disagree with as a matter of “life-or-death”…what a joke”
You’ll be glad to learn that your latest remark earned you the Village Idiot award for the third time. You have now retired the title. Congratulations!
November 20th, 2009 at 4:03 pm
I’m not worried at all about KSM getting off. No one in America, let alone NYC, will let the bastard walk. Confessions aren’t needed for a conviction. Hell, judging by how some people wind up on death row, “beyond a reasonable doubt” isn’t even important. I’d be surprised if jury deliberations takes longer than 5 minutes.
November 20th, 2009 at 8:19 pm
Mike:
“I’d be surprised if jury deliberations takes longer than 5 minutes.”
Uhh…..how do you pick a jury in NYC?
November 20th, 2009 at 10:58 pm
“Uhh…..how do you pick a jury in NYC?” – Ken
He won’t get a “fair” trial. Won’t find one New Yorker without a biased opinion of 9/11. The best the defense can hope for is for potential jurors to say they’ll keep an open mind. Stack the jury with muslims? Now the defense has a jury staring down the man that made their lives miserable, giving their religion a bad name. KSM is screwed. Doesn’t matter the circus or the razzle dazzle of the defense, New Yorkers are convicting. NYC is not LA and KSM is not OJ.
November 20th, 2009 at 11:22 pm
Let me add, my comments are directed at the general outrage of the NYC trial and the fear KSM might get aquitted or case thrown out, and not addressing the article Poli posted.
I agree with the conclusion: “…will provide a blueprint for the government, giving them the prize they’ve been after all this time—a legal way both to torture and to prosecute.”
It’s the reason I and many others were against the new legislation and executive powers the Bush Administration demanded for the WoT. Government never relinquishes power and always finds a way to expand it to cover more people. It’s just a matter of time before the tools used to fight terrorism will be used against American citizens.
November 21st, 2009 at 5:10 am
Mike:
“He won’t get a “fair” trial. Won’t find one New Yorker without a biased opinion of 9/11.”
That’s exactly why there shouldn’t be a criminal trial. It should be a military tribunal. The terrorist Muslim population will be treated to a “railroaded” KSM by a US court. It is being done for political reasons alone.
How could a judge reasonably request a change of venue?
November 21st, 2009 at 9:52 am
Who gives a rats ass what the terrorist population is treated to? They’re gonna hate America more? Fine, they can tack one more reason to their list. Would of happened anyway with a tribunal. It’s kinda like ODS, no matter what happens, the hatred grows.
How could a judge request a change of venue? “Says here he’s an “enemy combatant.” This is a military matter that requires military justice. Next case.”
November 21st, 2009 at 10:53 am
The public trials of these terrorists is being done for two reasons: embarrass the Bush Administration and enrich AG Holder’s law firm.
November 23rd, 2009 at 5:21 am
Defendants accused of terrorist acts were tried and convicted in US federal courts including John Walker Lindh, Richard Reid, Zacarias Moussaoui, Ali al-Marri, Jose Padilla.
England *somehow* manages to try terrorists in civilian courts. Spain manages it. India does it. And Israel does it on a daily basis.
It’s silly, anti-American ODS.