The Khalid Sheikh Mohammed trial: starting over
Khalid Sheikh Mohammed, mastermind of 9/11, is now on trial along with four accomplices. And it’s in a military court rather than the civilian courts the Obama administration would have preferred.
Thank goodness. One of the worst excesses of the Obama administration was its effort to move this trial, which had already begun in military court and was moving along nicely but was abruptly stopped by Obama and Holder several years ago. Now it’s back where it started, after an enormous amount of wasted time and expense, and a few changes:
Barack Obama came to power as president promising to scrap the military tribunals and close the Guanté¡namo prison because they were “a symbol that helped al-Qaida recruit terrorists to its cause”, but Congress blocked the move.
The president did oversee important changes to the conduct of the military trials including new rules that do not allow a defendant’s own confessions under torture to be used against him. But the statements of others who were tortured can be used which permits the interrogations of the five accused to be used against each other.
That being the Guardian speaking, the word “torture” is used to describe waterboarding, although whether it is actually torture or not is still controversial.
I’ve written about the case many times before; I’ve already made it clear that I favor military tribunals, and why. So there’s no need to repeat myself much, but here’s a little reminder, something I wrote back when the administration was first trying to transfer the case to the civilian court system:
If anyone is an illegal enemy combatant, it would be Khalid Sheikh Mohammed, and he should not be afforded the benefit of liberal rules of discovery designed to protect civilian defendants but which allow other al Qaeda terrorists to obtain valuable information about our methods of intelligence gathering: what we know, how we learned it, and about whom we know it. This decision also puts the entire city of New York at risk again by forcing it to house these terrorists and making their trial the proverbial three-ring circus, as well as giving them a bully pulpit for more attention.
I can hardly imagine a worse decision by the Obama Justice Department on these issues, except to let the terrorists go free and set them up in penthouses on the upper East Side.
So I consider this latest development an excellent one. However, it won’t stop people such as Anthony Romero, executive director of the American Civil Liberties Union, from saying predictable things like this:
“The Obama administration is making a terrible mistake by prosecuting the most important terrorism trials of our time in a second-tier system of justice…Whatever verdict comes out of the Guanté¡namo military commissions will be tainted by an unfair process and the politics that wrongly pulled these cases from federal courts, which have safely and successfully handled hundreds of terrorism trials.
That “second-tier” system of justice is good enough for our military, and it was good enough for the conspirators who assassinated Abraham Lincolm as well as the German war criminals of WWII. But it’s not good enough for Khalid Sheikh Mohammed?
Just to refresh your memory, in addition to 9/11, KSM was personally responsible for the beheading of American journalist Daniel Pearl—meaning, he didn’t just mastermind it, he performed it (and no, that link is not to the video of the beheading, to which I will never link).
There must be some reason to pursue the trial now after all this time or not delay it further, if I could just think of it. Hmmmm. Maybe it’ll come to me.
EB,
Could it be an 8 letter word that begins with an e and ends tion?
“One of the worst excesses of the Obama administration.. ”
BHO & Holder were obviously trying to placate the likes Anthony Romero and Code Pink. They were not expecting the ferocity of the backlash to their original excessively stupid decision, which included a majority of the democrats in the house & senate.
And, thank you for not linking to the slaughter Daniel Pearl.
The Geneva Conventions provide that unlawful combatants, (And as you say, KSM is certainly an unlawful combatant if there ever was one.) can be summarily executed on the field of battle. To go the extra mile of providing a military tribunal is an example of our nation trying to be civilised.
However, from what I have heard of the opening proceedings, the perps are going to attempt to turn it into a circus because they expect (and will probably receive) kid glove treatment. It could well prove to be an embarrassment rather than a well- ordered rendering of justice.
How much better it would have been if, after we were certain we had exhausted their usefulness as sources of intelligence, we had just quietly arranged their meetings with the 72 virgins.
Hang the monstrous Khalid and subsequently, toss him in the ground with a slaughtered boar pig sliced aplenty and oozing much blood. Video the Mass Butcher swimming with the Islamist abhorred PIG, bury the 2-swine and publish-broadcast worldwide immediately. Similar ‘Exhibit A’s’ were used by General Pershing in the Philipines to mighty fine effect.
Baa-Daa-Bing.
Neo, from my perspective, you should have been a judge. You’ve got that meaness and humaness, but, that came from a path that probably wouldn’t have happened had you pursued a legal career.
I’ve always thought that the merit demanded in fine arts is inherently conservative and that may have been a factor in your observations and conclusions.
I can tell you that legal circles are terribly and awfully and systematically progressive, leftist, and closed. I’ve looked for at least one attorney to work for in Orange County and have not found one! Yes, not one! The closest was a Morman and I have a Morman background but they were not looking. The quality of that firm was awesome. You could tell from the moment you looked at their office and talked to their secretary. Wow. That was an experience. Reminds me of the old days when the office empowered the individual with goodness and grace.
A good Christian or Jewish attorney who truly protects rights? You know why they hardly exist? Because they would be squashed. Take attorney fees? All the discrimination and wage and hour claims have “fee shifting” statutes which means if the Plaintiff wins, he gets attorney fees; if he loses, he doesn’t pay fees. So Plaintiffs have no liability; they can bring lawsuits for any attorney who will draft them.
Anyone can say anything and believe me they all learn this. My favorite case was defending an entrepreneur from completely stupid and undefensible allegations. But the damned Plaintiffs had an attorney who put their bullshit into lawful language. He tried to to make us settle by showing us a previous decision where minimum wages had not been paid and attorney fees were awarded to prove even if the unpaid wages were excusable, the total amount that was awarded was huge.
We didn”t give in. And in fact, we won a reverse attorney fees award (for the non-shifting part of their claims) which are now deducteding 25% of the Plaintiff’s wages for our attorney fees we had to charge our client, who, understandably, loves each check. Incredibly, he still employs those who made a claim against him and takes 25% of their net earnings. They can’t find another job and have to consent to this.
And yet, where do you think the mass of wage and hour claims lie? Yeah, of course, with those who have little knowledge or little power: illegal immigrants. You bet there are plenty of companies or people willing to “employ” illegals. These companies are not “Republican” or “Democrat.” They are only trying to do what makes common sense, but must be stopped. That our federal law would give consent to the conspiracy between our own and other nation’s lawbreakers is a clear indictment of lawlessness.
Can you believe how messed up our justice system is? And yet, who has better? Name the country? It truly is amazing how robust our legal system was designed.
I don’t know whether or not this great nation will survive. Obviously, no nation that gives illegal immigrants advantages over its own citizens can survive. I’m hopeful but it’s a hope that hopes above History’s examples. Because it sure seems like we are heading into a great night when the new technological tools are used not for but against the people. If we really wanted to seal our borders, we could. The reason we don’t is for the votes that the illegals and their supporters would bring to make the marginal difference so important to the next election.
You want to now another bullshit situation I hate about the progressive value: You can kill the unborn who hasn’t done a thing, but the killer who is crazy, can’t touch him.
Gotta be something wrong there.
You can write a habeus corpus “produce the body” which is a very simple 2 page form for a man who has stomped to death another man. Both homeless. The man could not be tried due to insanity and spent a number of years in mental institutions, which, quite understandably, lapsed in records and made an opening for a procedural challenge. It’s occasionaly happens and to not write the habeus corpus would jeopardize an attorney’s license.
Then, killer was released from a mental institution where proscription anti-psychotics were regularly administered. He then was arrested for the original crime and jailed where the application of medication is much less guaranteed. Guess what might happen? All sorts of stuff like he might attack someone and then charge the state had not sufficiently protected him from his own psychosis.
Everyone knew this was going to happen, but that’s the process, so, what are you going to do. Nevertheless, all the expense was paid for by you, the person who pays taxes.
Jail was something different and better for him in his weird mind. Not that he really knew. He should have been executed for the original crime, but he wasn’t and no “expert” wants to deem him sane so he can be executed. Instead, experts spend $500 bucks an hour arguing.
So this guy is bounced around and is a danger to all who come in contact with him. And as a lawyer, you have to, HAVE TO, make this happen.
What a crock. Why should there be a difference? What kind of life is lived by the person who is insane? Why should we pay for the enormous (and I can tell you it is enormous) price to sustain and protect a life that was proved not worth living?
If one is an insane killer, isn’t that the best of reasons for sending him home? Instead, you better believe, there are insane killers let out on the street for no better reason than Norway’s law that is going to let Breivik serve only 13 years for killing dozens of young students.
The “criminal is a victim” law destroys society. It makes more victims and more criminals. This is all a part of the attack to make America decay within.
We should not let it happen.
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I will never respect any argument that says it was too dangerous to try these men in New York City, and to the extent that any politician has said that on either side of the isle, that politician is a coward.
These are show trials, nothing more, with a pre-designed outcome. That these show trials can’t even be done in the continental US is a double disgrace. Too chickenshit to give them a real trial, and too cowardly to even do it on our own soil. I’m ashamed of the US at this point, but considering the last 3 governments have arguably been extra constitutional anyway, maybe I should just go into not caring.
And Neo? “Waterboarding” is only controversial as torture at a few websites like this one. The entire rest of the world, as well as the fact that it is part of SERE argues that it is. It’s simply , in some forms, a more “humane” form of torture. In others it can be horrific. As John McCain said, we executed Japanese after World War 2 for waterboarding, and the only difference to me is that we, at least, don’t stomp on the prisoners stomach.
Curtis:
I see you don’t understand the concept of “mens rea”, which, by definition, a truly insane person doesn’t have.
We execute the retarded, we’ve executed the innocent, I suppose we might as well make you happy and execute the downright insane. Oh, and some crazy people are no danger to others and can lead a quite full life if given the proper help and support structures.
Oh by the way:
I don’t much care that we waterboarded these prisoners. In fact, I’d explicitly legalize it (the milder form that we currently supposedly use) as one of a very few forms of legal coercive interrogation. It’s the extra legal bullshit of these forums that are offensive to me, as well as the bullshit arguments that its not torture.
By forums I mean the Military Tribunals, not this website.
Brad,
The definition of torture in my book is an act that inflicts grievous and lasting damage to the prisoner. John McCain and most at the Hanoi Hiltion were tortured. They still bear the damage that was done to them. Waterboarding, sleep deprivation, loud music, dietary changes, isolation boxes and stress positions are not torture. If they were our aircrews that have undergone them in SERE training would have been permanently damaged.
Waterboarding is just one of many techniques used to stress a prisoner so that he eventually becomes cooperative with the interrogator(s). Some people claim that stress techniques, or enhanced interrogations, don’t work. The four men in the dock in Gitmo would beg to differ with you. Some also say that real torture doesn’t work. But everyone of the POWs at Hanoi eventually broke and gave the Vietnamese what they wanted. Read McCain’s book for the details.
You want to know what real torture is? Torture is using electric drills to punch holes in joints. Torture is nipping off fingers and toes, one at a time. Torture is skinning a man alive. All these techniques are favored by the Islamists and will be faced by any of our soldiers that are captured alive. Yes, we don’t sink to that level, because our intent is to gather information not to terrorize our enemies.
Intelligence is the mother’s milk of defending ourselves against the terror attacks. Our desire for that intelligence was why we used to take prisoners and question them. Today, we no longer have that option. So, we kill them with drone attacks – the high tech equivalent of the IED. The drone attacks, like IEDs and real torture of prisoners is meant to incite fear, not to gather the information necessary to neutralize our enemies’ intentions.
So, we are now proceeding as you seem to prefer. What’s your gripe?
Brad:
I really wonder if you’ve read what I wrote, and what other critics of having the trials in the US have written. Because your points do not address the most important arguments against having the trial in the civilian court system, which have nothing to do with location (which, of course, is another objection), and everything to do with the different rules of discovery in each system.
I’m not going to go into it again, but if you want to know more read this and this.
And by the way, the term “show trial” is completely inappropriate here. A show trial is a trial that has maximum public exposure, not minimum, and its purpose is to show the public how contrite the accused are, among other things (the accused here are not contrite!). The charges are trumped up and/or usually coerced under traditional and severe torture, not waterboarding, and the families of the accused are threatened if there’s no cooperation. The template of show trials were the Soviet purge trials of the 30s under Stalin. Read up, if you’re not familiar with them, and please use the term properly. And while you’re at it, learn something about military tribunals and their fairness; military justice is a complete system of justice in and of itself, not a front for show trials.
And torture can be defined in a lot of different ways, including loosely, which includes sleep deprivation, for example. Arguments that waterboarding isn’t torture are not bullshit, they are just arguments with which you don’t agree. See this. And I’m with Andrew McCarthy (a legal expert and writer I highly respect) on this when he says, “waterboarding is close enough to torture that reasonable minds can differ on whether it is torture.”
Neo:
A show trial is a trial with a PREDETERMINED outcome.
It doesn’t matter if the prisoner is contrite or any of that.
That these show trials are not the same as those conducted in the former Soviet Union under Stalin in terms of how they are publicized and used by those in power doesn’t change the fact that they are show trials. I’ve read Whittaker Chambers’s book Witness, and I’ve read the Gulag Archipelago. I’m fully aware of Stalins crimes against humanity no need to lecture me on that sort of thing.
And I could give a crap less about the “rules of discovery” argument, esp considering it’s nearly ten years on in some cases and we’ve had quite a few leaks since then.
The real reason I don’t think we will try them as that we are afraid that one or two of them might be acquitted, and they know where too many bodies are buried, so to speak.
Oh and arguments against waterboarding being torture are indeed bullshit if you go by : the entire rest of the world and our own legal history.
Whether Romney is elected or not, someday you will rue the power you have unleashed.
Brad: so you don’t give a crap about the rules of discovery or more leaks. Fascinating.
A show trial is not one where you already know the person is almost certainly guilty. Trials are very often like that (whether in military or civilian courts), since the authorities prefer to have a strong case before bringing a person to trial. And yet such trials are not show trials, despite knowing the likely outcome; if the rules of evidence are properly followed and no one is committing perjury, and everyone has fair representation, etc. etc., they are fair trials.
What’s more, the details of the outcome are not known in this case (for example, the penalties for all the defendants). I do not know if all five in the current case will be found guilty of all charges, or just of some, or whether they will all get the death penalty or not—nor do you know these things, by the way.
And none of this has anything to do with whether a trial is in the military justice system or the regular civilian criminal justice system—there could be a fair trial under each system, or a show trial.
By the way, I will lecture you on whatever I feel like lecturing you on (although I tend to think of it as a discussion), which in this case is the actual definition of “show trial” in Merriam-Webster:
Here’s another definition, from the Oxford dictionary:
Neo:
Thanks for making my point.
These trials are rigged, which is what I was saying all along, as it should have been obvious by my mention of a possible acquittal or two if we gave them real trials.
And yes, all aspects of these “trials”, “commissions”, or whatever you want to call them THAT THE GOVERNMENT WANTS YOU TO SEE are open to the public. There is a website where you can get the transcripts, and CNN among many other news organizations is providing some coverage. They are definitely SHOWING you what THEY want you to see. You just like it because you are a neoconservative. I’m not satisfied with what the government wants me to see.
So no matter what definition you use these are show trials. None of the defendants will be acquitted, and we’ll never know some of the “evidence” used to convict them.
By the way, I don’t doubt that at least two of the current defendants are guilty.
I’m objecting to the process used to convict them and various laws that have been broken in order to do so, not to mention the fact that there will be repercussions in the future for refusing to call a spade a spade, and torture, torture.
America and Europe are busy finding that out in the financial world as we speak, it’s only a matter of time before we find that out in our political system as well.
Brad:
There is nothing “real” about a civilian trial and “false” about a military trial. They are both equally real.
Obviously, if you believe this trial to be rigged (i.e. dishonest and fraudulent), then of course nothing I can say could convince you otherwise, and there’s no point in discussing it. (By the way, though, your saying that some of the defendants might be acquitted in a civilian trial but not in a military one would not necessarily mean that you thought the military trials to be rigged, for the simple reason that the rules of evidence and discovery are different in the two forms of trial. It is certainly possible that a person could be found guilty in one venue and not the other, even with a fair trial in both under their different rules.)
Also, you think that my being a neoconservative means I like the government only showing me what it wants to show me? That’s a very odd concept, I must say. Do you not know what neoconservative actually means? I’ve got plenty of posts on that topic, too, under the category “neocons” on the right sidebar.
Brad…Please abide by my sensitive 6:52pm of May 5th here. It will diminish the level of torture on this thread 10-fold. That KSM and any of his al Qaeda followers at Gitmo are still above ground and breathing disgusts all decency and our sacred dead. Let’s see…”Torture” is wetting nasal passages as they do at SEAL school on Coronado Island and sleep depriving like..ohhhhh…half the teenagers in America, pounding on their i-Thingies and texting Binker & Buffy. Right. Check.
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*You listening to this from LZ-Pearlygates.com, Ricky R.?? You led your thousands of colleagues of Morgan Stanley out unscathed and returned several times to the Tower to aid others not with your company. And the Tower beat you to the street. And the human excrement who caused it all is still alive and clowning in military court. May 2012!!
And, far more torturous, Rick, are lads like Brad who think we’re being and have been indecent to the poor little Dark Age Savage. R.I.P. 9-11-2001*