View Full Version : Khalid Sheikh Mohammed on Trial in NY?
9/11 suspects face New York trial
The alleged 9/11 mastermind will be transferred from Guantanamo to New York for a trial in which the death penalty will be sought, the US has confirmed.
original story is here:
http://news.bbc.co.uk/2/hi/americas/8359623.stm
Trying them in a civilian cout of law is wrong on so many levels I don't even know where to begin.
Not the least of which is that some Fed Judge could throw the case out before it even begins on one of a gazillion technicalities and he could walk. Wouldn't that be fun? :munchin
Part of me almost hopes something like that happens just to see the fallout for the administration.
rubberneck
11-14-2009, 10:01
I hate to say this but if they drop the ball on this and it becomes the jihadist circus that I think it will maybe some of our fellow citizens might awaken to the fact that administration is way out of their depth on national security issues. This is stupid on so many different levels I don't know where to start. Even the Nazi's and the Japanese war crimes trials were tried before military tribunals. Giving these animals their "day" in our Federal court system is a joke.
If this/these slime ball(s) walk(s), it'll probably not happen until Obama gets his seciond tour of duty. This trial will make OJ, the Lindberg kidnapping, and the impeachment of both Clinton and Nixon all rolled together look like 30 minutes with Judge Judy. It's an abomination of justice. Our Dear Leader...sweet Jesus!
Basenshukai
11-14-2009, 14:39
My wife was so livid at hearing this that she refused to even speak while we were driving home from the PX yesterday (and she's not even a US Citizen yet; waiting on paperwork). What a lot of libs don't get is that there is a possibility that these guys may walk. Crazy.
FWIW - I disagree. KSM and company were foreign citizens who committed crimes against American citizens which fall under federal law and - therefore - are to be tried under federal law in a federal court in New York - the most notable site of those crimes.
Here's the evidence federal prosecutors will use against them.
http://www.csmonitor.com/2009/1114/p90s01-usju.html
It's called the 'rule of law' - and I'm certainly not 'livid' about it running its course.
YMMV...and so it goes...;)
Richard's $.02 :munchin
I cannot help wondering how far the rule of law can and should go. This is, of course, complicated by my emotional preference for the terrorists' fate - or, perhaps I should say alleged terrorists.
The rule of law really does give the judge enormous flexibility. It gives a single juror the opportunity to prevent conviction. The rules will give the alleged terrorists access to a great deal of information - including information that is best kept secure. All of this has costs involved.
We risk their acquittal. We gain, from that, a reputation as a society ruled by law. But we risk decreased deterrence, and thus perhaps increased vulnerability.
We spend time and money. Same gain as before. But we risk ignoring other crimes and other criminals.
We distribute information. Same gain. But we risk the increased vulnerability mentioned earlier.
And we might want to think carefully about the value gained from the perception that we are a society who upholds (at all costs?) the rule of law. Because there are those who just might exploit those rules, and our dedication to those rules, to our considerable detriment.
I think it might be worthwhile to reflect on a rhetorical question - that being, what are the limits, if any, to our commitment to the rule of law? How much should we risk and sacrifice in furtherance of this ideal?
Purely in my opinion, terrorists have the potential to extract an awful price. Maybe they cross the line and deserve the label of "outlaws" in the classic sense - outlaws being those no longer under the protection of the law. Perhaps the law of national survival can, at some point, transcend the statutory law of the courtroom. Once again, MOO, YMMV.
KSM and company were foreign citizens who committed crimes against American citizens which fall under federal law and - therefore - are to be tried under federal law in a federal court in New York
With all due respect Sir, if that is in fact the case, then US Mil is actually the World Police. Why is NYC a better place to try these men than The Hague? From your article, KSM planned many international attacks.
As I understand it, the definitions of asymmetric warfare and terrorism differ merely by the respective points of view.
I believe AQ declared war on the U.S. via UBL's 1996 fatwa titled "Declaration of War against the Americans Occupying the Land of the Two Holy Places."
My Muslim Brothers of The World:
Your brothers in Palestine and in the land of the two Holy Places are calling upon your help and asking you to take part in fighting against the enemy --your enemy and their enemy-- the Americans and the Israelis. they are asking you to do whatever you can, with one own means and ability, to expel the enemy, humiliated and defeated, out of the sanctities of Islam.
UBL & AQ want war. Here's the entire fatwa:
http://www.pbs.org/newshour/terrorism/international/fatwa_1996.html
I too am all about the rule of law. As a matter of fact, I've sworn to support it and defend it twice: at work and on the weekends.
KSM & Co are soldiers without uniforms and they should be treated as such. This is a military issue and not a civilian one. I think that Rubberneck is spot on.
Personally, I think this whole thing of a civilian trial is an intentional distraction by the White House. How many folks watched the ENTIRE OJ trial? Give Joe Six-pack something to watch on TV and talk about at the water cooler the next day. What else are we to watch since 90210 and Melrose Place aren't on? ;)
Respectfully,
Lindy
So, let me get this straight...The Obama White House wants to bring this guy to Manhattan, to face trial? Am sure that they are "banking" on the charges being thrown out, and Mr. Terrorist will walk the streets safely proclaiming, "It was all a set-up...I did nothing blah, blah, blah...."
DISGUSTING, and shame on you Mr. President, for this outrage!!!
Holly
It is my most heartfelt opinion there is no limit to our commitment to the rule of law. I agree with Richard, this was a crime committed in NYC and the perpetrators should be tried there. What is the matter with everyone, don't you trust all those good Christian judges with conversative values we have been loading the bench with? Plus, remember, we are at war and an act is legal if the president says it is legal because he is the president according to Dick Cheney. So with that precedent set, we can all relax. :eek::eek:
The Reaper
11-14-2009, 19:20
It is my most heartfelt opinion there is no limit to our commitment to the rule of law. I agree with Richard, this was a crime committed in NYC and the perpetrators should be tried there. What is the matter with everyone, don't you trust all those good Christian judges with conversative values we have been loading the bench with? Plus, remember, we are at war and an act is legal if the president says it is legal because he is the president according to Dick Cheney. So with that precedent set, we can all relax. :eek::eek:
KSM did not commit a crime in NYC that I am aware of.
Should we have tried him in Pakistan?
Should we trust the courts that let OJ, Robert Blake, etc. go free?
TR
Bill Harsey
11-14-2009, 19:23
Anyone want to start a betting pool on how this is going to work out?
Anyone want to start a betting pool on how this is going to work out?
I think the majority of folks who are against this all have the same idea exactly how this will work out.
Beyond the simple fact that I, personally, am 100% against this terrorist bastard and his ilk having the opportunity to manipulate the system, I'm very unhappy he/they will be afforded Constitutional rights. Animals like this that attacked America, not just New York btw, don't deserve to breath the same oxygen I do.
Yeah, I know...and I don't care. :rolleyes:
Furthermore, who the hell would consider defending these bastards? There is NO defense for what they have done, and would do again...given half a chance.
Here's the charge sheet from Gitmo (remember the focus WAS on him being an enemy combatant) :
http://news.findlaw.com/wsj/docs/terrorism/usksmetal20808chrgs.pdf
Charges are attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, terrorism, and providing material support for terrorism
Can't seem to Googlefu the civilian indictment of US v. KSM though but surely the charges will be significantly different.
I'm sure his defense will be sponsored by some wealthy Middle Eastern Islamic defense fund.
6.8SPC_DUMP
11-14-2009, 20:43
I do not advocate basing important decisions on ass'umptions and benefit greatly from the broad base of knowledge and opinions of members here.
But FWIW, I doubt this arrangement would have been made without prior certainty that these five individuals would plead guilty.
There are a lot of islamic extremists who would love to go down in history as those who planned the execution of the September 11th attacks (or "National Service Day" as Obama has purposed we call it).
I don't think the idea of being killed by the Country of which they want to fall is much of a deterrent, rather the opposite.
(Paragraph deleted b/c my New York Federal Court info was wrong about the death penalty. )
Part of me hopes they get a #2 buckshot to the gut at 10 yards (that about right QP's?). More importantly though, I wonder if keeping them in a flat walled cell for the rest of their lives (w/o light, bedding or human contact), would strike a bigger blow to their extremist cause of insiting a "holy war". We could even put up some brail on the west side of the cell wall and give them a mat to kneel on, in keeping with the 1st Amendment.
I cannot help wondering how far the rule of law can and should go.
This is exactly what the Federal / Military Officials were faced with in the wake 9/11 and there has certainly been a major impact. I wonder if this trial will somehow have a similar affect on the state level.
As I understand it, the definitions of asymmetric warfare and terrorism differ merely by the respective points of view.
I believe AQ declared war on the U.S. via UBL's 1996 fatwa titled "Declaration of War against the Americans Occupying the Land of the Two Holy Places."
....
KSM & Co are soldiers without uniforms and they should be treated as such. This is a military issue and not a civilian one.
Thank you for your service Lindy. The legal differences between Domestic Terrorism vs Foreign Terrorism are based on laws not points of view though. By the Legal definition 9/11 was an act of Domestic Terrorism.
AQ is a supra-national dissident group - not soldiers of a sovereign nation. This is an extremely important distinction because it is at the crux of determining authority of civilian law and Military law on the homeland. It obviously raises many difficult questions on targeting the countries who fund their activity.
I'm a bad global citizen b/c I care a great deal more on the measures that are taken on home soil than when deployed abroad. I think until you live it you should STFU before passing judgement on the conduct a soldier who served abroad - it should be handled internally. I don't feel the same way on deployment in the home land (aside from physical invasion of a foreign government) such as what is now happening in Italy. I think privatizing "martial law" with corps like XE (Blackwater) could be a great deal worse.
IMH and inexperienced opinion what makes being a member of the Armed Forces such a difficult task; is not only the mental and physical training, combat, pay imbalances due to war profiteering -but being obligated take orders - while also having sworn to uphold the Constitution. It is what I perceive as a lack of discussion and transparency which reminds me of Abe Lincoln's POV:
"I am exceedingly anxious that this Union, the Constitution, and the liberties of the people shall be perpetuated in accordance with the original idea for which that struggle was made..." --February 21, 1861
Just my .000002
What scares me is how this affects the morale of people fighting. By putting on a show for the media in an effort to prove to the world how "civil" and "understanding" we are, not only do we run the risk of INCREASING the threat or potential threat, we encourage a dangerous attitude and the breeding ground for others like it. The whole thing is counter-productive.
KSM did not commit a crime in NYC that I am aware of.
Should we have tried him in Pakistan?
Should we trust the courts that let OJ, Robert Blake, etc. go free?
TR
Oh but he certainly did!! And the courts you cite were not federal courts that I am aware of
What scares me is how this affects the morale of people fighting. By putting on a show for the media in an effort to prove to the world how "civil" and "understanding" we are, not only do we run the risk of INCREASING the threat or potential threat, we encourage a dangerous attitude and the breeding ground for others like it. The whole thing is counter-productive.
Astounding.
Richard
Trying them in a civilian cout of law is wrong on so many levels I don't even know where to begin.
Astounding.
Richard
I cannot help wondering how far the rule of law can and should go. This is, of course, complicated by my emotional preference for the terrorists' fate - or, perhaps I should say alleged terrorists.
The rule of law really does give the judge enormous flexibility. It gives a single juror the opportunity to prevent conviction. The rules will give the alleged terrorists access to a great deal of information - including information that is best kept secure. All of this has costs involved.
We risk their acquittal. We gain, from that, a reputation as a society ruled by law. But we risk decreased deterrence, and thus perhaps increased vulnerability.
We spend time and money. Same gain as before. But we risk ignoring other crimes and other criminals.
We distribute information. Same gain. But we risk the increased vulnerability mentioned earlier.
And we might want to think carefully about the value gained from the perception that we are a society who upholds (at all costs?) the rule of law. Because there are those who just might exploit those rules, and our dedication to those rules, to our considerable detriment.
I think it might be worthwhile to reflect on a rhetorical question - that being, what are the limits, if any, to our commitment to the rule of law? How much should we risk and sacrifice in furtherance of this ideal?
Purely in my opinion, terrorists have the potential to extract an awful price. Maybe they cross the line and deserve the label of "outlaws" in the classic sense - outlaws being those no longer under the protection of the law. Perhaps the law of national survival can, at some point, transcend the statutory law of the courtroom. Once again, MOO, YMMV.
Astounding.
Richard
With all due respect Sir, if that is in fact the case, then US Mil is actually the World Police. Why is NYC a better place to try these men than The Hague? From your article, KSM planned many international attacks.
As I understand it, the definitions of asymmetric warfare and terrorism differ merely by the respective points of view.
I believe AQ declared war on the U.S. via UBL's 1996 fatwa titled "Declaration of War against the Americans Occupying the Land of the Two Holy Places."
My Muslim Brothers of The World:
Your brothers in Palestine and in the land of the two Holy Places are calling upon your help and asking you to take part in fighting against the enemy --your enemy and their enemy-- the Americans and the Israelis. they are asking you to do whatever you can, with one own means and ability, to expel the enemy, humiliated and defeated, out of the sanctities of Islam.
UBL & AQ want war. Here's the entire fatwa:
http://www.pbs.org/newshour/terrorism/international/fatwa_1996.html
I too am all about the rule of law. As a matter of fact, I've sworn to support it and defend it twice: at work and on the weekends.
KSM & Co are soldiers without uniforms and they should be treated as such. This is a military issue and not a civilian one. I think that Rubberneck is spot on.
Personally, I think this whole thing of a civilian trial is an intentional distraction by the White House. How many folks watched the ENTIRE OJ trial? Give Joe Six-pack something to watch on TV and talk about at the water cooler the next day. What else are we to watch since 90210 and Melrose Place aren't on? ;)
Astounding.
Richard
I think the majority of folks who are against this all have the same idea exactly how this will work out.
Beyond the simple fact that I, personally, am 100% against this terrorist bastard and his ilk having the opportunity to manipulate the system, I'm very unhappy he/they will be afforded Constitutional rights. Animals like this that attacked America, not just New York btw, don't deserve to breath the same oxygen I do.
Yeah, I know...and I don't care. :rolleyes:
Furthermore, who the hell would consider defending these bastards? There is NO defense for what they have done, and would do again...given half a chance.
Astounding.
Richard
The Reaper
11-14-2009, 21:45
Oh but he certainly did!! And the courts you cite were not federal courts that I am aware of
What crimes did KSM commit in NY?
Should the Nuremberg trials have been conducted in NYC as well?
TR
FWIW - I disagree. KSM and company were foreign citizens who committed crimes against American citizens which fall under federal law and - therefore - are to be tried under federal law in a federal court in New York - the most notable site of those crimes.
Here's the thing
Using this logic one could argue that George Bush, Dick Cheney, et al are foreign citizens who committed crimes against Syrian/Iranian/Saudi/Palestinian/Afghani/Iraqi/?istan citizens which fall under [insert country of your choice federal or equivalent] law and - therefore - are to be tried under [insert here] law in a [insert here] court in [insert here].
Unless I missed something (and I'm pretty sure I didn't and the Pakistanis just handed them over upon capture) these men were not extradited for trial in our country via normal, internationally accepted means. We snatched them in conjunction with the Pakistanis as war criminals. They are war criminals in GWOT. Therefore, we're basically saying - "Hey, come snatch our dudes! It's cool! Then try them in YOUR country according to YOUR laws if you think our guys may have broken one of your laws! It doesn't need to be a war criminal thing anymore - it's totally open season! We think that's how it goes." We've effectively removed the whole war criminal / war crimes element by taking it out of war tribunal and putting it in to Federal court without regular extradition.
And under these circumstances a Federal judge could look at the defendants and easily say....
"Hey, you know... we don't legally have these guys in our custody! Too bad so sad! They go free."
It astounds me that so many people in this country - the Obama administration included - seem to believe that for years the Bush administration just sat on their hands and didn't try these guys at Gitmo because they didn't feel like it. When really, there are incredibly complex legal issues happening here, the likes of which have NEVER been contemplated before in the history of the world. The closest we've come is Nuremburg. The Bush administration went slow and methodical and were extremely circumspect to the point of being frozen. The Obama administration seems hell bent on going headlong into a potential disaster.
Astounding.
Richard
Is it? In essence, we face a difficult problem, we have no sure way to address it, and we seek solutions. The current discussion may represent a part of the greater society's dialog on many important changes.
With regard to the legal system, I am inclined to consider its functioning in the light of Tainter in his "Collapse of Complex Societies" book. Briefly, he suggests that all societies add complexity in the form of solutions to their problems. A court system is a solution to a problem - they add complexity, but their benefits outweigh the costs of the added systems. Likewise, an appeals court adds further complexity (and hence costs) in order to address further problems. The difficulty comes as the added complexity costs more than it is worth - in essence, the new changes produce a negative return. Costs, in this case, encompass much more than money - rather, they include all the costs, both material and intangible, to all elements of the society.
So - although I recognize the dangerous territory I speak of - I do wonder if the legal system is (or even can be) an effective solution to this new problem. I wonder if what it costs us (and not merely in money!) will not far exceed the benefits.
greenberetTFS
11-15-2009, 01:44
Richard,
You know that I have the highest respect for your thoughts and opinions,but please be honest with me now,wouldn't you really just wish that these "pricks" would be just taken out and shot? ..................:mad:
Big Teddy :munchin
incarcerated
11-15-2009, 02:59
http://www.foxnews.com/politics/2009/11/14/view-pending-trial-attempt-prosecute-bush-administration/
Some Fear Bush Administration Could Become Target in 9/11 Trial
FOXNews.com
Updated November 14, 2009
Some critics say a civilian trial -- instead of a military tribunal -- for self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and his accomplices could end up targeting the Bush administration and its anti-terror policies.
The Obama administration, in deciding to try alleged Sept. 11 conspirators in a New York courtroom, has said it is setting its sights on convictions, but some critics say a civilian trial -- instead of a military tribunal -- could end up targeting the Bush administration and its anti-terror policies.
One of those five defendants, Khalid Sheikh Mohammed, has been at the center of the debate over those Bush-era polices, in particular the harsh interrogation techniques used on Mohammed and others in an effort to obtain information on Al Qaeda and any additional attacks.
"The government is going to try to put Khalid Sheik Mohammed on trial. Defense lawyers will try and put the government on trial," former New York City Mayor Rudy Giuliani told Fox News.
The Justice Department says in a 2005 memo that CIA interrogators subjected Mohammed 183 times to waterboarding, a near-drowning technique described by Obama officials as illegal torture. But others disagree with Obama, most notably former Vice President Dick Cheney, who argues that the techniques used have kept the country safe from another attack.
Obama's attorney general, Eric Holder, announced in the summer that he would investigate whether CIA officers should be prosecuted for their interrogations, setting off intense debate over the prospect of prosecuting officials from the previous administration.
But on Friday, in announcing a civilian trial for Mohammed and four other detainees, Holder dismissed questions about whether politics was a factor in the decision.
"My job as attorney general is to look at the law, apply the facts to the law and ultimately do what I think is in the best interests of this country and our system of justice. Those are my guides," he said. "To the extent that there are political consequences, well, you know, I'll just have to take my lumps, to the extent that those are set in my way."
"But I think if people will, in a neutral and detached way, look at the decision that I have made today, understand the reasons why I made those decisions, and try to do something that's rare in Washington -- leave the politics out of it and focus on what's in the best interest of this country -- I think the criticism will be relatively mild."
But Holder already has faced strong criticism from conservatives and some families of 9/11 victims.
Karl Rove, a former top Bush adviser and now a Fox News contributor, said some attorneys in the Justice Department have tried for years to undermine the military tribunals system and "gain for these war criminals the rights that we would accord American citizens who might be accused of knocking over the local 7-Eleven."
"I think we make a mistake by focusing on the politics of it," Rove said. "What we ought to do is focus on the real danger this represents to the American interest and to the American security in the years ahead."
Supporters of trying the detainees in military tribunals note that the tribunals have relaxed standards for presenting evidence and offer minimized risk of disclosing government anti-terror secrets.
Tom Ridge, head of the Homeland Security Department in the Bush administration, warned against using the trials as a means of going after Bush administration officials.
"You'd like to think that ... it is simply their interpretation that these individuals are entitled to these kinds of criminal justice protections -- rather than using it as a fishing expedition to revisit decisions made during the past six years," he told FoxNews.com, adding that "time will tell."
"If we discover later that it's really just a facade to delve into a fishing expedition, I would find that just unacceptable, outrageous and a further distortion of the system," he said. "If it's subterfuge for the fishing expedition, that's just wrong and unconscionable."
FoxNews.com's Stephen Clark and Joseph Abrams contributed to this report.
What I may wish as an individual and what our nation must be as a society whose admiration and strength among world nations has been predicated on the ideas of a democratically created republic of laws and one which abides by the rule of those laws, are sometimes at odds with each other. But to behave otherwise is to say to the world that 'I do not truly believe in that of which I claim is just and to which I am willing to swear an oath to defend, of why I am here in your country and willing to give my life, of a system of government I believe offers by far a fairer and better way for all people to live' - and is hypocrisy.
IMO - we easily fault others for such whimsical hypocritical thinking and actions, and have shown far too much of it ourselves in our nation's somewhat checkered past - and we know it - and we have used that knowledge to become a far better nation than I think we, ourselves, sometimes deserve. We should not want a return to those somewhat ignoble times as recorded in our History books, to resort to vigilantism as in the past because we are confused and scared and uncertain and angry, to lose trust in our system's rule of laws because some are in disagreement and it is a confusingly difficult time, to become those of which we are so stridently preaching and fighting against at home and abroad.
For if we do...what then...:eek: :confused: :(
Richard's $.02 :munchin
Sir,
Well said. I may personally wish that these guys had never been taken alive, but that's my desire for vengeance talking. When I think about it, though, I wonder if Dad's assessment might be more correct.
Maybe we should let these guys live out the rest of their (brief and unpleasant) lives among the general population of a prison. Why make them martyrs? Why should we give them what they're so clearly eager to receive?
I think letting them suffer in a jail cell for a life sentence - if they make it that far - might be sweet justice indeed.
to lose trust in our system's rule of laws because some are in disagreement and it is a confusingly difficult time, to become those of which we are so stridently preaching and fighting against at home and abroad.
For if we do...what then...:eek: :confused: :(
Richard's $.02 :munchin
But this isn't our system's rule of laws. They're making this up as they go. The actual rule of law on the books currently is the military tribunal system for Gitmo detainees that the Obama administration just thumbed their noses at and said, "No, I can do you one better." Don't mistake grandstanding for "rule of law."
Again - if this pattern we set is to be repeated across the globe, then American citizens (to include service members fighting for their country) could be taken and tried in domestic courts for their crimes, under THAT country's laws. This should put the fear into all of us.
Based on some of the thoughts being posted - I would guess that there are many on this forum who have never operated in a country where there is no SOFA and you are - whether a civilian or government employee - in fact - subject to the laws of the host nation. This is nothing new - at least in my lifetime - and is a fact of life in the vast world outside the American 'bubble.'
Richard's $.02 :munchin
Based on some of the thoughts being posted - I would guess that there are many on this forum who have never operated in a country where there is no SOFA and you are - whether a civilian or government employee - in fact - subject to the laws of the host nation. This is nothing new - at least in my lifetime - and is a fact of life in the vast world outside the American 'bubble.'
Richard's $.02 :munchin
Again, operated IN a country. Key element, different story altogether. Also noting that if an American soldier commits a crime against a civilian in a host nation we do try and bring that soldier into US military custody to handle it. Rarely do we allow that soldier to be handled by the host nation. (Generally part of an SOF, yes, but the way we do business.) Crimes committed in the course of war (prior to a SOF) are just that - war, assuming they are part of the action. So assuming radical Islam thinks they've declared "war" on us doesn't this mean we've taken their "soldiers" into domestic courts?
Mohammad didn't operate IN our country at the time of his crime. He operated outside of our country and has been forcibly brought into our control. So, again - following this logic - it would be permissible for a foreign national to come to our country and for instance, grab a strategic planner they believed assisted in planning a great travesty wrought upon their people. They'd bring this person into their country and try them according to their laws. No extradition, no war crimes tribunal, etc. It just doesn't pass the smell test and it isn't how we operate. No matter how you look at it, this administration is totally rewriting the book.
The Reaper
11-15-2009, 09:41
I believe that many of the attorneys and others planning to defend these swine have more of an interest in attacking the country and its institutions than they do in defending their clients. Almost no one disputes their guilt, most were bragging about it before their capture.
I am afraid that this trial could very easily result in little to no punishment for the perpetrators, and could cause serious damage to this country. Even if incarcerated in a Federal prison, these scum will continue to spread their filth, recruit followers, and serve as examples to others who would commit heinous acts against us. At this point, if we have extracted all of the intel these war criminals have, the best that could have happened would have been a speedy trial by competent military authorities, followed by a swift trip to the gallows, and a quick, unlamented, non-denominational burial in an unmarked grave, preferably underneath a public urinal.
We didn't give Goering and Tojo civil court trials in America with full up legal teams and the rights accorded to an American citizen for very good reasons.
I also believe that this sets a dangerous precedent, and offers hope to our enemies. Our Constitution will be a fine story for our subjugators to tell their children about as an example of failed government when we sell them the chains that they bind us with.
Be careful what you wish for.
TR
At this point, if we have extracted all of the intel these war criminals have, the best that could have happened would have been a speedy trial by competent military authorities, followed by a swift trip to the gallows, and a quick, unlamented, non-denominational burial in an unmarked grave, preferably underneath a public urinal.
I also believe that this sets a dangerous precedent, and offers hope to our enemies. Be careful what you wish for.
Very well said Sir!:mad:
Am not forgetting that Our enemies include a certain Iranian and North Korean President, and all their followers...who are watching all this!
Great job Big O! Take another bow...:rolleyes:
Our nation must be as a society whose admiration and strength among world nations has been predicated on the ideas of a democratically created republic of laws and one which abides by the rule of those laws
Sir, how does the Military Tribunal system counter this?
It would seem that a change from of jurisdiction from Military to Civilian is hypocrisy, yes? On the world stage it would appear that Bush was wrong and Obama is correct. I think this issue is too important to become a partisan issue with the ultimate end goal of the appeasement of political supporters. I honestly believe this current administration does NOT consider the Nation's best interests before it acts.
It is like we're back to the hanging chad garbage. Try explaining Democracy to a group of foreigners whose government violently crushed anti-government protests, arrested all the opposition party leaders, then days later claimed to have held a "free and fair" election where the incumbent won the majority. The foreigners repeatedly raised Bush v. Gore and honestly believed that our "election" was a farce. "Presidents should be chosen by people and not courts."
We should not want a return to those somewhat ignoble times as recorded in our History books, to resort to vigilantism as in the past because we are confused and scared and uncertain and angry, to lose trust in our system's rule of laws because some are in disagreement and it is a confusingly difficult time, to become those of which we are so stridently preaching and fighting against at home and abroad.
The AG didn't convince me that civilian trials are a better idea than what was in place but then again, he doesn't have to. But when I'm in Norway next month, I'll do my best to defend our actions in the pubs...and your comments above are just the ammo needed to argue that point more effectively.
Regarding living outside the SOFA, always carry Marlboro and Hershey's chocolate! My experience has shown that combination is VERY EFFECTIVE in convincing young border guards to lower their AKs. I just gotta find something to get them to take their damn fingers off the triggers!!! :D
I fully agree that living in a foreign country where the cavalry will NOT be coming is very sobering. Try explaining why we have a "safe haven" in the house, evac plans, and PACE commo to two teenage girls! But then again...that's part of the appeal of foreign service! :cool:
It is interesting because the good ffolkes on the left are criticizing the president accusing him of taking whichever route leads to the surest conviction. If someone wants to start a pool, I am betting at least 3 death sentences come out of the civilian courts. I would also bet the executions occur while Hasan is still a burden to the taxpayer.
Dozer523
11-15-2009, 10:36
A Defense Attorney is bound to offer the best possible representation to his client. The Judge is bound to ensure the fair outcome of the trial and move it along. (Though not an attorney) I did watch the Bright Center of My Universe in her High School production of To Kill A Mocking Bird and, although the 16YO playing Atticus was a tad over the top, the characters lines still ring true.
The Military Tribunal are a great disappointment to many because the trial did not turn out to be such "slam dunks" (Can't say "Tom" was as lucky.) I'm proud the military judicial system did not allow itself to be rushed. Saying that, the tribunals did not work to effect justice -- they are still in detention without trail. That is not justice to the accused, the victims or our system. So let's bring them (these non-military enemy combatants) and let them stand and acquit themselves before the US Constitution they abhor.
On a completely different note. . . I'm a little dicey about labels (in general) like "war criminal" (specifically) affixed indiscriminately to people who were scooped up on a battlefield in Afghanistan just because they were engaging US troops. It ought not to be a crime to fight against people (even us, hell even ME!) who enter your country without invitation. That is one of the reasons the Geneva Convention exists. The whole enemy combatants thing was meant to deny that protection at the start. It has failed miserably. Be careful for what you wish, indeed. .02
Honestly, I hope it works. I hope they get a fair trial that is safe, effective and expedient. I hope it shows the best of the American system and the US Constitution. I hope and pray that there are no ill-effects of our actions abroad. Obviously there are no easy answers to how to handle these criminals. No one is going to agree on how to do it.
So let's just pray this works.
I just have my HUGE doubts and this particular solution doesn't feel right to me.
Basenshukai
11-15-2009, 11:12
FWIW - I disagree. KSM and company were foreign citizens who committed crimes against American citizens which fall under federal law and - therefore - are to be tried under federal law in a federal court in New York - the most notable site of those crimes.
Here's the evidence federal prosecutors will use against them.
http://www.csmonitor.com/2009/1114/p90s01-usju.html
It's called the 'rule of law' - and I'm certainly not 'livid' about it running its course.
YMMV...and so it goes...;)
Richard's $.02 :munchin
Interesting point of view. So, is this then a matter for US law enforcement?
Should the guys in A-Stan now concern themselves with maintaining the integrity of a "crime scene" and of the rights of the accused (which is far different from the rights of a prisioner of war)?
How many Nazi war criminals where tried in the US Court system, I wonder? I'm certain quite a few Jews died at the hands of Nazis having been US citizens at the time.
OJ Simpson was technically found innocent of the crime with which he was charged in the criminal trial we all remember the most. What makes us think that this is a "slam dunk" case? Nothing in our court system is guaranteed.
It will be interesting to re-look this thread one, or two years from now when these proceedings have run their course. I wonder what legacy will be left behind for us after it is all said and done. It can go either way.
Note: I just looked at the link you provided. Let's remember, that the Obama Administration has acknowledged that water boarding is/was torture. KSM may choose, if so inclined, to twart our efforts to prosecute him under US law by having any confessions/evidence obtained under torture, or after torture, thrown out. Other such "confessions" have been thrown out in other US cases by virtue that the investigator merely slapped a detained suspect during questioning. Also, snatching him out of his home in the middle night without a warrant is somewhat illegal under our laws, isn't it? So, if this is all considered and thrown out, what is this guy really guilty of? Anything?
It would seem that a change from of jurisdiction from Military to Civilian is hypocrisy, yes? On the world stage it would appear that Bush was wrong and Obama is correct.
IMO - wrong is incorrect - pragmatically and deliberatively cautious while our legislative and judicial bodies sorted out the numerous issues involved in what could be argued as a less reactive and partisan manner is, I think, a more objective way to view and defend the situation we've encountered during the last 8+ years. ;)
FWIW - there is historical customary precedent for such handling of those who operate beyond the acceptable rule of law by the international community - Adolf Eichmann is, I think, a case in point which readily comes to mind.
But let me know when America becomes a junta and the military tribunal becomes the norm rather than the exception - I may have a few decisions to make at that time which I would never have thought necessary. :(
Richard's $.02 :munchin
Should the guys in A-Stan now concern themselves with maintaining the integrity of a "crime scene" and of the rights of the accused (which is far different from the rights of a prisioner of war)?
Very good point.
Can you imagine the evidentiary hearings and chain of custody issues with the seizures in Pakistan? I can't even begin to figure out how they are going to handle half of the procedural issues. To say this is a slam dunk is assuming they are going to plead it out - which I seriously doubt.
Warrior-Mentor
11-15-2009, 11:24
What's amazing is that so many are willing to comment (especially the Talking Heads) on this without having read or referenced Andrew McCarthy or Mike Mukasey who were involved in significant terror prosecutions and know the problems associated with these cases.
WILLFUL BLINDNESS is an insight filled look into the Blind Sheik trial over the World Trade Center bombing. McCarthy and Mukasey have both been prolific op-ed writers of late on this. A quick google search should provide plenty of information for those who care about being informed by the those who have been there and done this...
Andrew McCarthy:
http://author.nationalreview.com/?q=MjE5MQ==
Mike Mukasey:
http://online.wsj.com/article/SB10001424052748704107204574475300052267212.html
http://corner.nationalreview.com/post/?q=MWY1Zjk1M2RmNmY2MDEzMTlkNDIwNWFjNGQwODk2YmU=
http://www.foxnews.com/politics/2009/11/14/bush-attorney-general-trial-offers-jihadists-platform/
FWIW - there is historical customary precedent for such handling of those who operate beyond the acceptable rule of law by the international community - Adolf Eichmann is, I think, a case in point which readily comes to mind.
Yes and even the Eichmann trial was met with international protest for lack of jurisdiction - to include appeals after the trial. Granted, this was all dealt with rather expeditiously because 1. this is Israel, 2. this was 45 years ago, 3. this was before the 24 hour new cycle.
But let me know when America becomes a junta and the military tribunal becomes the norm rather than the exception - I may have a few decisions to make at that time which I would never have thought necessary. :(
Richard's $.02 :munchin
As you point out, that would be a clear discontinuity with the existing rule of law.
But - let us suppose, for a moment, that the hypothetical junta were done in an entirely constitutional and legal manner. Imagine that the Constitution has been amended, and the amendment ratified - along with enabling legislation to enable that junta.
And then, all in accordance with the law, the junta takes charge. The great majority of the population cheers the maximum leader. The newly appointed leader then acts - all according to the law and Constitution.
Of course, such things could never happen. No, never will they occur. It's completely impossible - right?
But if it did, it would present quite a conundrum, would it not? Which leads to the purely rhetorical question - is the rule of law the supreme end, above all others? Or is there something else superior?
And on that happy note... :munchin
What's amazing is that so many are willing to comment (especially the Talking Heads) on this without having read or referenced Andrew McCarthy or Mike Mukasey who were involved in significant terror prosecutions and know the problems associated with these cases.
What an absolutely astounding facile assumption - and as far as this issue - difficult, yes - a 'slam dunk', no - impossible, no - necessary...IMO...absolutely...and YMMV.
Whatever happens with these trials - they will be newsworthy and provide a tremendous amount of material for review by academics, attorneys, judges, legislators, and the opinions of others in our relatively free society for quite some time.
And so it goes...
Richard's $.02
Let's remember, that the Obama Administration has acknowledged that water boarding is/was torture. KSM may choose, if so inclined, to twart our efforts to prosecute him under US law by having any confessions/evidence obtained under torture, or after torture, thrown out.
So, if this is all considered and thrown out, what is this guy really guilty of? Anything?
Exactly the thinking of O's administration!!!
Let's just show how wonderful, and uniting O can be, and free this poor oppressed soul!:mad: (please dnote sarcasm here...)
Never mind the THOUSANDS of innocent Americans who were butchered on 9/11.
Or the Brave Soldiers who have lost their lives in a war that Our Enemy started! Remember THEM Big O??? If not for THEM, no American would sleep safe, NOT A ONE!!!
Let's just hold hands with The ONE, and sing Kum-By-Ya!:rolleyes:
Holly
Just my .02
pragmatically and deliberatively cautious while our legislative and judicial bodies sorted out the numerous issues involved in what could be argued as a less reactive and partisan manner
Fully agree Sir! I would wholeheartedly support a ruling from SCOTUS on WHERE these detainees should be tried: military or civilian. Remove the choice from the Executive branch and present it before the Court. I have more faith in the Supreme Court than I do the White House to decide what course of action would be in the best interest of our Nation (on this issue) and not simply what the sitting President wants. Bush signs an Executive order then day one of Obama's reign, he signs another one countering the previous President's.
It seems they do have jurisdiction over this matter:
According to the Constitution (Art. III, §2):
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
rubberneck
11-15-2009, 13:23
Richard I understand what you are saying but this whole situation is really, for a lack of a better word, stupid . On one hand Holder is claiming that they want to send the message that we are a nation of laws and that we will honor that by trying KSM in Federal court, but on the other hand the Obama Department of Justice announced last week that they planned to move forward with trial by military tribunals for at least five Gitmo detainee's.
It seems to me that this administration is talking out of both sides of their mouth. Why are tribunals ok for some Gitmo detainees while others get their day in federal court? IMHO this whole situation is a transparent attempt by this administration to send a message that they clearly don't believe in. Either try all of them in Federal Courts or by tribunals. To do it both ways makes no sense.
Let's remember, that the Obama Administration has acknowledged that water boarding is/was torture. KSM may choose, if so inclined, to twart our efforts to prosecute him under US law by having any confessions/evidence obtained under torture, or after torture, thrown out.
Current policy is that it is forbidden - but it was legally authorized under specific paramethers at the time of the confessions which should not, therefore, be an issue...unless there is evidence the interrogtors went beyond the directives. I would think (hope :confused: ) the DOJ looked into this and made a determination that it was not an issue before going forward with their recommendation. If not...:mad:
Why are tribunals ok for some Gitmo detainees while others get their day in federal court?
I agree it's confusing - and I admit it may seem even more confusing to those like us who are not privy to all that went on, is going on, and will go on - but the difference in who gets dealt with by whom may be due to a case-by-case consideration of the status of each detainee when the charges being brought against them were committed. :confused:
Richard
When really, there are incredibly complex legal issues happening here, the likes of which have NEVER been contemplated before in the history of the world. The closest we've come is Nuremberg.I do not believe this statement is sustainable within even the context of American history, much less European history. In the case of the former, the debate over the legal issues over neutral shipping played pivotal roles in the Second Anglo American War (the War of 1812) and, again, during the debates over America's entry into the Great War.
In the case of the latter, there were significant legal debates in Spain, France, and England regarding the exploration and colonization of the "new world." The War of the Spanish Succession centered around issues of the extra-national jurisdiction of European dynasties.
In regards to the United States of America v. Mohammed, I think that trying Mr. Mohammed in a civil court is prudent. While the military tribunal's indictment of Mr. Mohammed centers around U.S. Code Title 10, there's also Title 18, Part I, Chapter 113B (Terrorism) (http://www.law.cornell.edu/uscode/pdf/uscode18/lii_usc_TI_18_PA_I_CH_113B_SE_2332b.pdf). As acts of terrorism violate international law as well, other nations may realize they have a vested political interest in, at worst, remaining silent regardless of their views of Bush the Younger, the United States, or GWOT.
FWIW, I disagree with those who question the incumbent president's motives. The man has been consistent in his view that America's response to terrorism should stress diplomacy and law enforcement over war. This trial is his attempt to establish the efficacy of this approach. Does the DoJ under AG Holder have lawyers with the skills to make their case? That remains to be seen.
MOO, comparisons to the war crimes trials of Nazis are risky. Students of modern Germany--including American military historians--are placing increased focus on who was responsible for what during the Nazi dictatorship. I augur that it is exceedingly unlikely that the popular understanding of the Nuremberg Trials as the triumph of the rule of law over fascist tyranny will survive this scrutiny.
6.8SPC_DUMP
11-15-2009, 15:33
What I've been thinking about is how this could bring about negative repercussions on the Bush administration and/or US Agencies for Guantanamo. This will probably be viewed by some as a motive for the Dem's to try KSM in the US where he will say he was tortured.
In his 1st day of office Obama revoked the Bush administration’s Executive Order 13233 (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_register&docid=f:05noe0.pdf ) and replaced it with his Executive Order 13489 (http://edocket.access.gpo.gov/2009/pdf/E9-1712.pdf)
Under Bush's EO 13233 both current and former Presidents and VPs and the designees of deceased Presidents and VPs, had the right inform the US Archivist and the Attorney General that ‘‘Presidential records’’ (collected by the National Archives and Records Administration), were subject to "Executive Privilege" if deemed too sensitive for public disclosure under the following circumstances:
§ 2204. Restrictions on access to Presidential records (http://www.archives.gov/about/laws/presidential-records.html)
(a) Prior to the conclusion of his term of office or last consecutive term of office, as the case may be, the President shall specify durations, not to exceed 12 years, for which access shall be restricted with respect to information, in a Presidential record, within one or more of the following categories:
(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and
(B) in fact properly classified pursuant to such Executive order;
(2) relating to appointments to Federal office;
(3) specifically exempted from disclosure by statute (other than sections 552 and 552b of title 5, United States Code), provided that such statute
(A) requires that the material be withheld from the public in such a manner as to leave no discretion on the issue, or
(B) establishes particular criteria for withholding or refers to particular types of material to be withheld;
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) confidential communications requesting or submitting advice, between the President and his advisers, or between such advisers; or
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The term "Presidential records" means documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term--
(A) includes any documentary materials relating to the political activities of the President or members of his staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President
If the Bush administration evoked it's right of "Executive Privilege" to certain presidential records of his administration they won't be available through the National Archives for up to 12 years. If I'm reading this right it should ease the minds, to some degree, of those concerned over legal action against them during this trial. I'm certainly not professionally qualified to interpret these documents so if I'm wrong please correct me.
Obama's Executive Order 13489 changed the latter by giving only Incumbent Presidents the right to claim "Executive Privilege" on ‘‘Presidential records’’ and also the ability to disclose former Presidents ‘‘Presidential records’’ which had been under "Executive Privilege" under their tenure.
Sec. 4. Claim of Executive Privilege by Former President.
(a) Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President,
and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former
President’s claim of privilege or instead to disclose the Presidential records
notwithstanding the claim of privilege. Any determination under section
3 of this order that executive privilege shall not be invoked by the incumbent
President shall not prejudice the Archivist’s determination with respect to
the former President’s claim of privilege.
(b) In making the determination referred to in subsection (a) of this section,
the Archivist shall abide by any instructions given him by the incumbent
President or his designee unless otherwise directed by a final court order.
The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records,
unless a shorter time period is required in the circumstances set forth
in section 1270.44 of the NARA regulations. Copies of the notice for the
incumbent President shall be delivered to the President (through the Counsel
to the President) and the Attorney General (through the Assistant Attorney
General for the Office of Legal Counsel). The copy of the notice for the
former President shall be delivered to the former President or his designated
representative.
Although I approve of BHO's changes on the matter (which basically reinstated Reagan's EO on the issue) I don't feel that his pledge of transparency has been much more than lip service so far - particularly on his past:
•Obama has refused to offer his official papers as a state legislator in Illinois, and has been unable to produce correspondence, such as letters from lobbyists and other correspondence from his days in the Illinois state senate. There are also no appointment calendars available of his official activities. “It could have been thrown out,” Obama said while on the campaign trail during the Democratic primary. “I haven’t been in the state Senate now for quite some time.”
•Obama has not released his client list as an attorney or his billing records. Obama has maintained that he only performed a few hours of legal work for a nonprofit organization with ties to Tony Rezko, the Chicago businessman convicted of fraud in June. But he has not released billing records that would prove this assertion.
•Obama won’t release his college records from Occidental College where he studied for two years before transferring to Columbia.
•Obama’s campaign refuses to give Columbia University, where he earned an undergraduate degree in political science, permission to release his transcripts. Such transcripts would list the courses Obama took, and his grades. President George W. Bush, and presidential contenders Al Gore and John Kerry, all released their college transcripts.
•Obama’s college dissertation has simply disappeared from Columbia Universities archives. In July, in response to a flurry of requests to review Obama’s senior thesis at the Ivy League school, reportedly titled “Soviet Nuclear Disarmament,” Obama spokesman Ben LaBolt told NBC News “We do not have a copy of the course paper you requested and neither does Columbia University.”
•The senator has not agreed to the release of his application to the Illinois state bar, which would clear up intermittent allegations that his application to the bar may have been inaccurate.
•Jim Geraghty of the National Review has written extensively about Obama’s unwillingness to release records related to clients he represented while he was an attorney with the Chicago law firm of Davis, Miner, Barnhill, and Gallard. Obama was required to list his clients during his years in the Illinois senate. “Obama listed every client of the firm,” Geraghty reported, making it impossible to discern which clients he represented.
•Obama has never released records from his time at Harvard Law School.
Link (http://www.hallpages.com/board/?topic=topic8&msg=66)
YMMV just my .000002 - I'm no lawyer - was just interested in our government.
Shar-
I commend your passion for protecting US civilians, troops and POTUS' from abduction and trial by foreign jury, as a result of KSM being tried in NYC, but I don't see any connection between the two.
Khalid Sheikh Mohammed was not a foreign countries' soldier or political figure. It's reported he was born in Kuwait, but his parents are Pakistani, so let's even say he was born there. He was apprehended by Pakistani forces, with the possible aid of the CIA, for being suspected in numerous attacks that were committed as a supra-national dissident.
If he was Pakistani civilian they don't have a problem with his capture. If he was a Kuwait civilian I'd be shocked if they have a problem with his capture. He is reported to have operated in many countries - none of which employed him in their government's Army. So how can he be considered a war criminal and what countries do you fear would take this as "the straw that broke the camels back" in their justification to suddenly start abducting our Troops or representatives? Would it be any different than if he was tried in the Military commissions trial? Please fill me in if I'm missing something about what you said.
Surgicalcric
11-15-2009, 15:33
He asked to plead guilty and be sentenced to death. We should have allowed him to do so...
Trying him in civilian courts is the wrong answer --- PERIOD.
Our National Security trumps the President and the AG's (what a sorry POS) desire to show the world our legal system works...
Shar-
I commend your passion for protecting US civilians, troops and POTUS' from abduction and trial by foreign jury, as a result of KSM being tried in NYC, but I don't see any connection between the two.
Khalid Sheikh Mohammed was not a foreign countries' soldier or political figure. It's reported he was born in Kuwait, but his parents are Pakistani, so let's even say he was born there. He was apprehended by Pakistani forces, with the possible aid of the CIA, for being suspected in numerous attacks that were committed as a supra-national dissident.
If he was Pakistani civilian they don't have a problem with his capture. If he was a Kuwait civilian I'd be shocked if they have a problem with his capture. He is reported to have operated in many countries - none of which employed him in their government's Army. So how can he be considered a war criminal and what countries do you fear would take this as "the straw that broke the camels back" in their justification to suddenly start abducting our Troops or representatives? Would it be any different than if he was tried in the Military commissions trial? Please fill me in if I'm missing something about what you said.
Brighter legal minds then mine will weigh in (and have already weighed in - look at the links WM provided) on this issue of jurisdiction. But that's just what it is - jurisdiction. A court must have jurisdiction to hear a case. In this instance how does the Southern District of NY have legal and proper jurisdiction over this person? Anyone? It's only because we say so, it isn't because it went through any proper channels of extradition. The judge must shut his eyes to it. In a military tribunal, that is not necessary for a war criminal in an act of war. There will be some nutty rewriting of rules for this guy to stand in this courtroom. This isn't my opinion, this is Federal Rules of Criminal Procedure 101.
As to Sigaba's contention that these issues are not novel - I have to disagree and state that I do not believe that terrorists acting on foreign soils against third party countries without their own clear nationalities are the same as international shipping issues. Again, the closest we've come to exploring anything close to this is Nuremburg and Israel's trial of Eichmann where they played seriously fast and loose.
Again, the closest we've come to exploring anything close to this is Nuremburg and Israel's trial of Eichmann where they played seriously fast and loose.
Ever hear of a guy named Noriega? :confused:
Richard's $.02 :munchin
Ever hear of a guy named Noriega? :confused:
Richard's $.02 :munchin
Yes, and if memory serves he wasn't a terrorist he was a drug trafficker with direct ties to the US and he was arrested more traditionally after all was said and done.
One of the many problems here is the we are rewriting the book on Mohammad. We didn't start down this road with the intention of trying him in Federal Court. I'm guessing he wasn't afforded the normal rights given someone who was destined to be there. :rolleyes:
I'm not saying that I've got the answer or that Gitmo was the answer - I'm saying this is NOT the answer, it is procedurally destined for some huge issues (and security issues and opens a padora's box for bad precedent) and that this whole deal is so novel that it deserves some serious reflection and perhaps, a new approach entirely.
I'm saying this is NOT the answer, it is procedurally destined for some huge issues (and security issues and opens a padora's box for bad precedent) and that this whole deal is so novel that it deserves some serious reflection and perhaps, a new approach entirely.
You should review the Noriega case. And MOO - but this baby's been on the proverbial drawing board for some eight years now - time to take the proto-type out on the track and work the bugs out before going into full production with it.
And so it goes...;)
Richard's $.02 :munchin
Basenshukai
11-15-2009, 18:15
You should review the Noriega case. And MOO - but this baby's been on the proverbial drawing board for some eight years now - time to take the proto-type out on the track and work the bugs out before going into full production with it.
And so it goes...;)
Richard's $.02 :munchin
Brother, I really, really, hope that you are correct and I also hope that this comes out to our benefit. I also hope that this does not mean that when I run back out to the sandbox, that I have to worry about preserving crime scenes, evidence and read Miranda Rights. If you think that getting CONOPs approved is tough now...
And so it goes...;)
ZonieDiver
11-15-2009, 19:39
Brother, I really, really, hope that you are correct and I also hope that this comes out to our benefit. I also hope that this does not mean that when I run back out to the sandbox, that I have to worry about preserving crime scenes, evidence and read Miranda Rights. If you think that getting CONOPs approved is tough now...
And so it goes...;)
Kill 'em on site = problem solved!
rubberneck
11-15-2009, 19:43
I agree it's confusing - and I admit it may seem even more confusing to those like us who are not privy to all that went on, is going on, and will go on - but the difference in who gets dealt with by whom may be due to a case-by-case consideration of the status of each detainee when the charges being brought against them were committed. :confused:
Richard
Again if the tribunals are tailored to pass constitutional scrutiny (apparently the current administration feels they are) and they uphold our values by allowing the accused the chance to defend themselves in a fair trail, than why the need to weigh them on a case by case basis? Either the tribunals are a valid means by which to try war criminals or they aren't.
The only logical conclusion I can draw is that this is being only done to show the world that we value the rule of law above all else. If that is the driving force behind the decision to try KSM in NYC than the question then becomes is that message worth whatever pandora's box these trials are sure to open. I am not so sure that they are but reasonable people are free to disagree with that notion. I just hate like hell that it seems like this current administration is more worried about being perceived the right way than necessarily doing the right thing. Form should always follow function.
incarcerated
11-16-2009, 02:43
http://online.wsj.com/article/SB10001424052748704431804574537370665832850.html
The KSM Trial Will Be an Intelligence Bonanza for al Qaeda
The government will have to choose between vigorous prosecution and revealing classified sources and methods.
OPINION
NOVEMBER 15, 2009, 7:47 P.M. ET
By JOHN YOO
'This is a prosecutorial decision as well as a national security decision," President Barack Obama said last week about the attorney general's announcement that Khalid Sheikh Mohammed and other al Qaeda operatives will be put on trial in New York City federal court.
No, it is not. It is a presidential decision—one about the hard, ever-present trade-off between civil liberties and national security.
Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.
Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.
KSM is the self-proclaimed mastermind of the 9/11 attacks on the World Trade Center and the Pentagon—and a "terrorist entrepreneur," according to the 9/11 Commission report. He was the brains behind a succession of operations against the U.S., including the 1996 "Bojinka plot" to crash jetliners into American cities. Together with Osama bin Laden, he selected the 9/11 terrorists, arranged their financing and training, and ran the whole operation from abroad.
After the U.S. invasion of Afghanistan KSM eventually became bin Laden's operations chief. American and Pakistani intelligence forces captured him on March 1, 2003, in Rawalpindi, Pakistan.
Now, however, KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens—including the right to demand that the government produce in open court all of the information that it has on them, and how it got it.
Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.
This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the "blind Sheikh"), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.
In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.
Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.
Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the "crime scene" under battlefield conditions? Will they have to take statements from nearby "witnesses"? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.
The Obama administration has rejected the tool designed to solve this tension between civilian trials and the demands of intelligence and military operations. In 2001, President George W. Bush established military commissions, which have a long history that includes World War II, the Civil War and the Revolutionary War. The lawyers in the Bush administration—I was one—understood that military commissions could guarantee a fair trial while protecting national security secrets from excessive exposure.
The Supreme Court has upheld the use of commissions for war crimes. The procedures for these commissions received the approval of Congress in 2006 and 2009.
Stranger yet, the Obama administration declared last week that it would use these military commissions to try five other al Qaeda operatives held at Guantanamo Bay, including Abu Rahim al-Nashiri, the alleged planner of the 2000 bombing of the USS Cole in Yemen. It should make no difference that this second group attacked a military target overseas. If anything, the deliberate attack on purely civilian targets in New York City represents the greater war crime.
For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui's lawyers tied the court up in knots.
All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.
KSM's lawyers will not save the government from itself. Instead they will press hard to reveal intelligence secrets in open court. Our intelligence agents and soldiers will be the ones to suffer.
Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute.
I know that I am not an attorney, but I would think Mr Yoo, along with the many jurists and columnists commenting on the pending trials of KSM et al, would either consider or offer to the public some germaine facts relevant to the situation - such as CLASSIFIED INFORMATION PROCEDURES ACT as cited in Appendix to Title 18 of the US Code:
§ 4. Discovery of classified information by defendants
The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
§ 6. Procedure for cases involving classified information
(a) Motion for Hearing.— Within the time specified by the court for the filing of a motion under this section, the United States may request the court to conduct a hearing to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding. Upon such a request, the court shall conduct such a hearing. Any hearing held pursuant to this subsection (or any portion of such hearing specified in the request of the Attorney General) shall be held in camera if the Attorney General certifies to the court in such petition that a public proceeding may result in the disclosure of classified information. As to each item of classified information, the court shall set forth in writing the basis for its determination. Where the United States’ motion under this subsection is filed prior to the trial or pretrial proceeding, the court shall rule prior to the commencement of the relevant proceeding.
(b) Notice.—
(1) Before any hearing is conducted pursuant to a request by the United States under subsection (a), the United States shall provide the defendant with notice of the classified information that is at issue. Such notice shall identify the specific classified information at issue whenever that information previously has been made available to the defendant by the United States. When the United States has not previously made the information available to the defendant in connection with the case, the information may be described by generic category, in such forms as the court may approve, rather than by identification of the specific information of concern to the United States.
(2) Whenever the United States requests a hearing under subsection (a), the court, upon request of the defendant, may order the United States to provide the defendant, prior to trial, such details as to the portion of the indictment or information at issue in the hearing as are needed to give the defendant fair notice to prepare for the hearing.
(c) Alternative Procedure for Disclosure of Classified Information.—
(1) Upon any determination by the court authorizing the disclosure of specific classified information under the procedures established by this section, the United States may move that, in lieu of the disclosure of such specific classified information, the court order—
(A) the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove; or
(B) the substitution for such classified information of a summary of the specific classified information.
The court shall grant such a motion of the United States if it finds that the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information. The court shall hold a hearing on any motion under this section. Any such hearing shall be held in camera at the request of the Attorney General.
(2) The United States may, in connection with a motion under paragraph (1), submit to the court an affidavit of the Attorney General certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the United States, the court shall examine such affidavit in camera and ex parte.
(d) Sealing of Records of In Camera Hearings.— If at the close of an in camera hearing under this Act (or any portion of a hearing under this Act that is held in camera) the court determines that the classified information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing shall be sealed and preserved by the court for use in the event of an appeal. The defendant may seek reconsideration of the court’s determination prior to or during trial.
(e) Prohibition on Disclosure of Classified Information by Defendant, Relief for Defendant When United States Opposes Disclosure.—
(1) Whenever the court denies a motion by the United States that it issue an order under subsection (c) and the United States files with the court an affidavit of the Attorney General objecting to disclosure of the classified information at issue, the court shall order that the defendant not disclose or cause the disclosure of such information.
(2) Whenever a defendant is prevented by an order under paragraph (1) from disclosing or causing the disclosure of classified information, the court shall dismiss the indictment or information; except that, when the court determines that the interests of justice would not be served by dismissal of the indictment or information, the court shall order such other action, in lieu of dismissing the indictment or information, as the court determines is appropriate. Such action may include, but need not be limited to—
(A) dismissing specified counts of the indictment or information;
(B) finding against the United States on any issue as to which the excluded classified information relates; or
(C) striking or precluding all or part of the testimony of a witness.
An order under this paragraph shall not take effect until the court has afforded the United States an opportunity to appeal such order under section 7, and thereafter to withdraw its objection to the disclosure of the classified information at issue.
(f) Reciprocity.— Whenever the court determines pursuant to subsection (a) that classified information may be disclosed in connection with a trial or pretrial proceeding, the court shall, unless the interests of fairness do not so require, order the United States to provide the defendant with the information it expects to use to rebut the classified information. The court may place the United States under a continuing duty to disclose such rebuttal information. If the United States fails to comply with its obligation under this subsection, the court may exclude any evidence not made the subject of a required disclosure and may prohibit the examination by the United States of any witness with respect to such information.
There is more and it can all be found here:
http://www.law.cornell.edu/uscode/html/uscode18a/usc_sup_05_18_10_sq3.html
By not mentioning these procedures, I have to wonder at either the efficacy of the commentators or their political motives for not doing so. :confused:
Richard's jaded $.02 :munchin
I know that I am not an attorney, but I would think Mr Yoo, along with the many jurists and columnists commenting on the pending trials of KSM et al, would either consider or offer to the public some germaine facts relevant to the situation....
<<SNIP>>
By not mentioning these procedures, I have to wonder at either the efficacy of the commentators or their political motives for not doing so. Mr. Yoo certainly has a professional and political interest in the decision to try KSM in a civil court given the fact that he argued so vigorously (if not efficaciously) for military tribunals.
Dozer523
11-16-2009, 07:19
NOVEMBER 15, 2009, 7:47 P.M. ET
By JOHN YOO
'This is a prosecutorial decision as well as a national security decision," President Barack Obama said last week about the attorney general's announcement that Khalid Sheikh Mohammed and other al Qaeda operatives will be put on trial in New York City federal court. . . .
. . . Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute.
John Yoo ? hmmmmm Now why does that name sound familiar? do you mean this John Yoo?
"TUESDAY, MAR 10, 2009 03:56 PDT
John Yoo is sorry for nothing Sneering with contempt, the unrepentant Bush attorney has challenged "Obama's antiwar base" to read his infamous memos closely. So I did.
BY GARY KAMIYA
You have to give John Yoo credit for chutzpah. The disgraced author of the so-called torture memo was back in the news last week, when the Obama administration released seven more secret opinions, all but one written in whole or in part by Yoo and fellow Office of Legal Counsel (OLC) lawyer Jay Bybee, arguing that the Bush administration had the right to override the Constitution as long as it claimed to be fighting a "war on terror." Professor Yoo, who I am embarrassed to say holds a tenured position at the law school of my alma mater, the University of California at Berkeley,(Is that amazing?) was already known as the official who provided a legal fig leaf behind which the Bush administration tortured inmates at Guantánamo and Abu Ghraib. His legal misdeeds are widely known, but now they have been exposed chapter and verse. Among the new memos is one written in 2001, in which Yoo and co-author Robert J. Delahunty advised the U.S. that the Posse Comitatus Act, which forbids the Army to be used for law enforcement, and the Fourth Amendment, which prohibits unreasonable searches and seizures, do not apply to domestic military operations undertaken during a "war on terror."
In other words, bye-bye, Bill of Rights. This is a prescription for a police state, where not just the police but the Army can kick your door down without a warrant or probable cause, as long as the president says he's fighting "terror." If Barack Obama had solicited such an opinion from an obliging Justice Department lawyer because he wanted to sic the U.S. Army on a group of domestic terrorists, the right would be screaming about jackbooted federal thugs descending from black helicopters to haul off American citizens. Strangely, no conservatives have taken to the streets to warn us of the Big Government danger posed by this radical doctrine. Perhaps they are too busy mobilizing against the unspeakable socialist menace represented by Obama's 3 percent increase in taxes on millionaires.
Cite: http://www.salon.com/opinion/kamiya/2009/03/10/john_yoo/
I am an attorney, and not even a famous one like Mr. Yoo or a particularly noteworthy one and even I know that while the Classified Information Procedures Act may have some bearing on things during the trial there is still a need to follow the entirety of the Federal Rules of Procedure - be they Civil or Criminal. Things like chain of evidence, Miranda, etc are all part and parcel of what will hang the prosecution. Just because they are guilty doesn't mean they go to jail.
You may be able to discredit Mr. Yoo for some of his words based on his political leanings, but the basics of what he's saying are still germane. And last time I checked, the WSJ wasn't some crazy conservative rag.
.... But that's just what it is - jurisdiction. A court must have jurisdiction to hear a case. In this instance how does the Southern District of NY have legal and proper jurisdiction over this person? Anyone? It's only because we say so, it isn't because it went through any proper channels of extradition. The judge must shut his eyes to it. In a military tribunal, that is not necessary for a war criminal in an act of war. There will be some nutty rewriting of rules for this guy to stand in this courtroom. This isn't my opinion, this is Federal Rules of Civil Procedure 101.
As to Sigaba's contention that these issues are not novel - I have to disagree and state that I do not believe that terrorists acting on foreign soils against third party countries without their own clear nationalities are the same as international shipping issues. Again, the closest we've come to exploring anything close to this is Nuremburg and Israel's trial of Eichmann where they played seriously fast and loose.
Some quick thoughts: Our UCMJ under Title 10 US code allows for jurisdiction over the person - regardless of the location. So if a military member in space smoked dope, a Courts-martial can try the case simply because of the person's status as subject to UCMJ.
The civilian US courts involve a different analysis. Is there jurisdiction (power) to hear the case? That is does the court exercise power over the crime charged? The second aspect is one of location (called venue). There are several courts with the same power to hear the case, but in what location. Some offenses transpire through the territory of several courts. Jurisdiction over the crime and the person with proper venue perfect the case and once the trial starts, jeopary attaches.
I offer the observation that members of AQ are not members of a nation's military but rather stateless w/ respect to Army in the conduct of their actions. I would have preferred they be classified as "illegal combatants" (as distinguished from a Levy en masse) and then as illegal combatants they can be charged with their misdeeds under the law of war. Pursuant to our treaty obligations and the law of war, the US military has jurisdiction and them and the procedures set out in Title 10 US Code suppl by the military commissions act, allow for the military to have jurisdiction over those acts committed in violation of the law of war.
"Legal combatants" (military fighting in uniform and obeying the law of war) and those who rise up are not tried, but rather held as PW (in some cases the status is retained personnel and others civilian internes) until hostilities cease. Remember those WWII moves and Hogans Heroes? Held for the duration but not punished for crimes.
When this administration decided to handle the "illegal combatants" as criminals, in order to try and hopefully punish, we come down to two issues - jurisdiction and venue. Under Title 18 US Code, does the US have jurisdiction, that is the power to try the offense? The fact that over 3,000 persons were unlawfully killed with malice aforthought and certain persons conspired to commit murder, the U.S. obviously has the jurisdiction to adjudge the case. Nations have the power to defend their nationals. Likewise, the acts took place within the geographic confines of the nation. As far as the venue (the appropriate location to try the case), crimes against the US may generally be tried in any District in which acts associated with that crime took place. The fact that several thousand persons died in the S Dist of New York would justify that as one of the possible venues. Others might be where the flight training took place, where the aircraft were hijacked, etc.
Our criminal courts generally do not look to how the jurisdiction over the person was acquired. Some may remember a DEA agent Enrique Camarena (RIP) and the Mexican physician that kept him alive for an extended period while they mob tortured Camarena. The doctor was forcibly abduced by contractors working for DEA and brought to the US. There are other cases - Noriega, the Max Factor heir, etc. Bottom line, the US courts have yet to grant a defendant a get out of jail free card, just because the "Habeas Grabass" offended some people's notions of fairness.
So, the current rules (as I read them) without amendment allow for what is going on.
I would have preferred the case remain prosecuted under our Treaty obligations and through use of Military Commissions (Courts-martial) but the decision is a political one, the law (IMHO) allows for either. But we have a Const provision regarding double jeopardy and the US as a soverign gets but one bite at the apple. If this becomes a circus because it is in the civilian courts - the administration has itself to blame.... This is not submitted in jest, I am sure that should it go terribly worng, they will say "It's all Bush's fault".
v/r
phil
P.S. Richard, thank you for the thought provoking commentary. I find it most enjoyable!
Some quick thoughts:
I offer the observation that members of AQ are not members of a nation's military but rather stateless w/ respect to Army in the conduct of their actions. I would have preferred they be classified as "illegal combatants" (as distinguished from a Levy en masse) and then as illegal combatants they can be charged with their misdeeds under the law of war. Pursuant to our treaty obligations and the law of war, the US military has jurisdiction and them and the procedures set out in Title 10 US Code suppl by the military commissions act, allow for the military to have jurisdiction over those acts committed in violation of the law of war.
"Legal combatants" (military fighting in uniform and obeying the law of war) and those who rise up are not tried, but rather held as PW (in some cases the status is retained personnel and others civilian internes) until hostilities cease. Remember those WWII moves and Hogans Heroes? Held for the duration but not punished for crimes.
When this administration decided to handle the "illegal combatants" as criminals, in order to try and hopefully punish, we come down to two issues - jurisdiction and venue. Under Title 18 US Code, does the US have jurisdiction, that is the power to try the offense? The fact that over 3,000 persons were unlawfully killed with malice aforthought and certain persons conspired to commit murder, the U.S. obviously has the jurisdiction to adjudge the case. Nations have the power to defend their nationals. Likewise, the acts took place within the geographic confines of the nation. As far as the venue (the appropriate location to try the case), crimes against the US may generally be tried in any District in which acts associated with that crime took place. The fact that several thousand persons died in the S Dist of New York would justify that as one of the possible venues. Others might be where the flight training took place, where the aircraft were hijacked, etc.
Thank you for this - I was hoping someone with more legal experience (which doesn't take much) especially in the realm of military courts would chime in. I know there are a number of JAG on the boards.
What I'm continually confused at and have looked long and hard to find is exactly WHAT they are classified as right now. I see various incarnations of what their classification is at any given moment. Does it matter in the long run and they attach a different classification at will? Because in my mind, this is the crux of the jurisdiction issue and what could screw jurisdiction up completely. I know if I were defense, I'd be screaming illegal seizure at the top of my lungs.
Also, am I mistaken in thinking that they've already been held before a military tribunal to some degree? How would that affect jeopardy?
Guys - don't forget a 'clever' prosecutor does not place all of his/her eggs in a single basket (so to speak) when going after important criminals like these guys. I have a friend who is a very successful criminal prosecutor and - based on his years of experience with the sometime fickle nature of courts and juries - he always brings the minimum charges necessary for what he seeks to accomplish. He holds other charges he could have added back in case the trial does not end in a satisfactory result so that if that happens, he can always bring the defendant back to trial by then filing the other charges with the hope that a different jury or court will make the difference.
I'm hoping the prosecutors in these cases are clever and that the end results will be satisfactory to us all.
Richard's $.02 :munchin
What I'm continually confused at and have looked long and hard to find is exactly WHAT they are classified as right now. I see various incarnations of what their classification is at any given moment. Does it matter in the long run and they attach a different classification at will? Because in my mind, this is the crux of the jurisdiction issue and what could screw jurisdiction up completely. I know if I were defense, I'd be screaming illegal seizure at the top of my lungs.
Also, am I mistaken in thinking that they've already been held before a military tribunal to some degree? How would that affect jeopardy?
I think the classification as "Defendant" in the case of United States of America v.___________.
The issue of pre-trial detention, bail, credit for pretrial detention, etc., were all considered if we are to accept the A.G.'s statement. The fact is, they have been in the custody of the United States - ablbeit the military vs law enforcement.
I don't think their seizure outside of the U.S. will be an issue under the 4th Amend. U.S. courts don't seem to take an interest in how the defendant was brought to court. The period of detention after seizure may give rise to an issue.... Likewise, the nature of any statements made.
However, prior to any of this, the attack took place. The United States developed credible evidence to implicate them. Outside of police custody, apparently they made statements proclaiming their involvment - and it would be hard to supress those statements. So, if there is independent existing evidence and they have made admissions, the case may survive.
My personal fear is that this is all being done not to seek responsiblity, but with the knowledge this will turn into a political circus. Obviously it will reengerize the left's base - to have judges ruling on political questions. And with an energized base, it may get them back to the polls. Shame on me for thinking such.
v/r
phil
A most interesting thread!
I wonder though, about the jury. As I recall, jurors are required to reveal their name and address, among other things. And counsel for defense gets to see that information.
I wonder - just how safe will a juror feel?
What if all the evidence needed to convict, say KSM, was acquired prior to the use of "harsh interrogation tactics". What if, in fact, the harsh tactics revealed exactly nothing that was not already known? What if the career prosecutors know this and have passed the info on to the new AG? Would that negate the arguments against the civilian trials being an intelligence bonanza for AQ? Would that explain the decision to go civilian? Would it also not help explain John Woo's outburst? I feel very strongly there is very much a "he doth protest too much" syndrome running around on a lot of issues.
What if all the evidence needed to convict, say KSM, was acquired prior to the use of "harsh interrogation tactics". What if, in fact, the harsh tactics revealed exactly nothing that was not already known? What if the career prosecutors know this and have passed the info on to the new AG? Would that negate the arguments against the civilian trials being an intelligence bonanza for AQ? (snip).
IMHO the result of any allegations the govt acted improperly depend upon the context.
Statements: Was the statement voluntarily given? Fifth amendment violations generally result in suppression of any statement improperly obtained. That is the remedy.
Parenthetically, where that becomes interesting is when the defendant later takes the stand and attempts to testify to a whole new version of events. The previously suppressed statement may be entered into evidence, not to prove the crime, but to impeach the defendant's new version of the facts.
Searches and Seizures: For the sake of argument, suppose improper (illegal) methods were also used to gather evidence in violation of the 4th amendment to the US Const? An illegal search (or seizure). A court might suppress the evidence obtained and hold that everthing obtained thereafter is therefore also inadmissible. The general theory is that any product (derived from) an illegal search and seizure becomes what is known as the "fruit of the poisonous tree" and is tainted.
If the prosecution is capable of proving its case with independent evidence that was not "tainted" the case is fine. If the prosecution proves they would have found the evidence anyway (inevitable discovery) the evidence is usually admitted.
In a standard situation under the one you posed, with independent evidence, the defendant is convicted and the jury never hears the "bad" evidence.
There is one angle I suppose, where a judge might come up with an opinion that the government's action is so grave as to "shock the conscience" of the court. Under the due process clause, it may be possible to say the whole thing violated the due process clause and the defendant is freed.
Such is the risk, by bringing the defendant into the US and placing him before a federal court. Once he is "feet dry" on US territory, all of the protections of our Const apply to him. It is a political decision to bring them here with consequences that will flow. The A.G. has assured us they covered all angles in making the decision.
v/r
phil
Thank you!! One further question. Is it possible for the justice dep't to choose the federal district they feel is the most likely to be favorable to the prosecution and might that have some play in choosing this particlular district?
Thank you!! One further question. Is it possible for the justice dep't to choose the federal district they feel is the most likely to be favorable to the prosecution and might that have some play in choosing this particlular district?
Dad,
BLUF: Yes
The US Const and the rules allow for the government to elect the venue. So long as the crime started in one location, continued through other Districts and culminated in another, the government may elect any of the Districts in which to prosecute.
The defendant is free to challenge the govt's choice of venue and may argue that another is more appropriate. If the defendant is able to demonstrate there is an unfair prejudice to his ability to defend (or the inablility to empanel a fair and impartial jury) the US Dist Judge may decide another venue as more appropriate.
Speedy trials rarely happen and if he decides not to plead guilty, expect lots of pre-trial issues as the defense lawyers advocate on behalf of their case.
v/r
phil
Surf n Turf
11-16-2009, 19:28
Our criminal courts generally do not look to how the jurisdiction over the person was acquired. Some may remember a DEA agent Enrique Camarena (RIP) and the Mexican physician that kept him alive for an extended period while they mob tortured Camarena. The doctor was forcibly abduced by contractors working for DEA and brought to the US. There are other cases - Noriega, the Max Factor heir, etc. Bottom line, the US courts have yet to grant a defendant a get out of jail free card, just because the "Habeas Grabass" offended some people's notions of fairness.
JAGO,
Thanks for your insight, and this very interesting thread.
As a precusor of what may happen with the GITMO trials, I would like to point out that the Mexican Physician was acquitted on charges, after the SCOTUS agreed that we could bring the good Doctor to trial.
Dr. Alvarez is one of 19 defendants indicted early this year by a Federal grand jury in connection with the 1985 torture and murder of Enrique Camarena, a U.S. Drug Enforcement agent working in Mexico. The doctor is alleged to have administered stimulants to Mr. Camarena to keep him alive during torture sessions.
But the underlying points remain: the United States has good reasons to pursue the prosecution of Dr. Alvarez and appears to have acted within the law in doing so.
http://www.nytimes.com/1990/06/13/opinion/yes-prosecute-the-torture-doctor.html
After his capture, Alvarez-Machain sought to dismiss the indictment on the grounds that his abduction was illegal, but this claim was ultimately rejected by the U.S. Supreme Court. Nonetheless, Alvarez-Machain was acquitted in 1992. Upon returning to Mexico, Alvarez-Machain returned fire by filing a civil suit in U.S. federal court against those responsible for his abduction, including several Mexican nationals, four DEA agents, and the United States.
http://www.nationalreview.com/adler/adler200407210842.asp
...Alvarez-Machain returned fire by filing a civil suit in U.S. federal court against those responsible for his abduction, including several Mexican nationals, four DEA agents, and the United States.
In a case such as that one, I think such an action is untenable and falls under some of the provisions of the RICO laws which were specifically enacted to counter just such a scenario.
I would think the KSM trials are a bit different...any thoughts? :confused:
Richard's $.02 :munchin
alright4u
11-17-2009, 00:50
FWIW - I disagree. KSM and company were foreign citizens who committed crimes against American citizens which fall under federal law and - therefore - are to be tried under federal law in a federal court in New York - the most notable site of those crimes.
Here's the evidence federal prosecutors will use against them.
http://www.csmonitor.com/2009/1114/p90s01-usju.html
It's called the 'rule of law' - and I'm certainly not 'livid' about it running its course.
YMMV...and so it goes...;)
Richard's $.02 :munchin
http://www.breitbart.tv/bombshell-uncovered-obama-statement-ksm-will-get-full-military-trial/
Yet in 2009 as Pres just like the rest of the far left socialists- he speak out fanny.
An opinion presented by a politician in a debate held over 3 years ago may not necessarily hold true today - things change - especially the word of a politician - and party affiliation seems to have little to do with it.
Richard's $.02 :munchin
If there is going to be a federal criminal trial for KSM than I want my government to provide him with the best defense money can buy. In fact, I'd offer my services to his attorney and pledge to do the best job possible in an effort to acquit. Our government will in fact, spend tens of millions of dollars on defense fees for both guilt/non-guilt and assuming he's found guilty the penalty phase. I make these comments because the trial is only the start of a long road. Don't worry, KSM will be found guilty and in fact, I'm fairly confident that he will be found guilty and sentenced to death. As a result, I want to limit appeals, especially an ineffective assistance of counsel claim which happens to be the most common and successful claim. I suspect there will be 4th, 5th and 8th Amendment motions filed pre-during-post trial, but, I also don't see a federal judge or panel of appeal judges giving them much weight since all those activities occurred when this case was in a murky legal status. However, the courts will I suspect review the manner in which the defense handles this case in a much different light and hold them to at least to a standard of competence.
I disagree with some previous comments regarding the venue. Albeit my comments above, I believe this case should have been handled in military tribunals. Several years ago a bi-partisian Congress developed a mechanism to handle this as well as other GWOT cases through tribunals. Why tribunals and not federal courts? There are two reasons: a very practical national security reason and one legal reason.
On a practical level, much of the evidence and activities surrounding the search, apprehension, transport, interrogation and detention of KSM falls within various classified levels to include I suspect at the highest levels. Legally all of that information is potentially deemed discoverable, meaning the defense attorneys can request and the prosecutors must provide to the court for its review and judgment on release to the defense counsel. Then the issue turns to admissibility and the judge of course can make rulings on admissibility based on arguments by the prosecution and defense counsels. The amount of that information is going to be immense and require numerous people from military, intelligence and law enforcement agencies to collect and provide to the prosecution, who will than have to comb through it with all of their people before providing it to the court for their in-camera review. Obviously 1 single judge will not have time to review it so his/her staff will have to review it and brief the judge on the content and the judge will than have to work with the prosecution in order to craft an inventory list that is sufficiently detailed but not so much as to reveal classified information. Than the defense gets a shot at arguing for access to that information and trust me they will argue for access to all of it. Also keep in mind in a traditional federal criminal trial, the defendant is entitled to personally review all evidence. Of course there are procedures in place to shield classified information from even defendants, but what happens when the entire case is classified, doesn't the defendant have a strong case to make that they were denied due process since they weren't adequately provided all evidence, some of which presumably was either exculpatory or at least mitigating, which in the context of a capital trial critically relevant?
I guess my long winded point here is that this will be a very long process, with a lot of opportunity for exposure of national security classified information and which ultimately will lead to a host of legal issues which the trial judge will rule on which than leads to an almost endless succession of potential appellate issues, which none in my opinion will be successful. The irony here is that most of this risk to national security and appellate issues are much more effectively addressed in a tribunal setting, which by the way will/has pass(ed) constitutional review.
Lets cut the drama and bullshit, the decision to try KSM in NYC is purely political and not based on some philosophical idea of justice. I believe in our Bill of Rights and have been involved in directly working or consulting on the defense of capital crimes, so, I'm not taking some irrational hang them from the nearest tree position.
Finally I get politics and most of the time, I'm okay with it since those in power have a right to make decisions since they were elected and thus legitimately able to express their opinions through their decisions. However, I do have a caveat to that idea in that I find this decision to be potentially damaging to our national security and certainty unnecessary given the existence of tribunals and my points above.
First question: what factors might shape the selection of a judge for United States v. Mohammed?
The federal courts website, here (http://www.uscourts.gov/faq.html), offers the following.Q: How are judges assigned to cases?
Judge assignment methods vary. The basic considerations in making assignments are to assure equitable distribution of caseload and avoid judge shopping. By statute, the chief judge of each district court has the responsibility to enforce the court's rules and orders on case assignments. Each court has a written plan or system for assigning cases. The majority of courts use some variation of a random drawing. One simple method is to rotate the names of available judges. At times judges having special expertise can be assigned cases by type, such as complex criminal cases, asbestos-related cases, or prisoner cases. The benefit of this system is that it takes advantage of the expertise developed by judges in certain areas. Sometimes cases may be assigned based on geographical considerations. For example, in a large geographical area it may be best to assign a case to a judge located at the site where the case was filed. Courts also have a system to check if there is any conflict that would make it improper for a judge to preside over a particular case. I am hoping for guidance on how to interpret the statement and also any additional information that members of this BB who have experience in and knowledge of this topic can provide.
Second question. (And at this point, you may want to put down your cup of coffee because I'm about to go way out in left field.)
What if the trial of KSM "works"? By this I mean:
An acceptable balance between the interests of justice and those of national security is found so that the defendant receives a fair trial and there is little (if any chance) to reverse the proceedings or a decision.
The proceedings end up being timely and economical.
The correct verdict is reached.
The trial clears up not only the specific issues of this case but also establishes a framework for additional trials of alleged terrorists in the federal civil court system.
The MSM behaves responsibly.
The American people prove increasingly favorable of the use of civilian courts to try alleged terrorists.
In a case such as that one, I think such an action is untenable and falls under some of the provisions of the RICO laws which were specifically enacted to counter just such a scenario.
I would think the KSM trials are a bit different...any thoughts? :confused:
Richard's $.02 :munchin
My concern is that once the subjects are brought into the United States proper, they are afforded all of the protections of our laws just as a citizen enjoys.
As far as law suits, federal employees (to include our military) enjoy something called qualified immunity for their official acts. Citizens attempting to sue the government often see their cases dismissed based upon this defense of limited immunity. This is sometimes called "good faith" immunity and comes up when employees are told to do something and their conduct does not violate clearly defined standards.
However, there is a law 42 USC 1983 which establishes a cause of action (ability to sue) for deprivation of civil rights under color of office. Initially the law was limited to state or local officials who deprived any citizen or other person within the jurisidiction of rights privileges or immunities granted by the US Const, and the employee can be held liable to injured party. The law seemed to work well but later judges expanced its scope and coverage.
1983 actions were created during reconstruction and aimed at the South. In 1971 the Supreme Court used a case (Bivens v Six Unk agents of the Bureau of Narcotics, 403 US 388) to create a cause of action. There was no federal law that applied to the agents allegedly searching a house without a warrant, so the Supreme Court created one on its own, a federal cause of action for persons whose civil rights were violated by federal agents. Newly created Bivens actions would follow the principles laid out in 42/1983.
Now federal officials are subject to civil rights suits alleging intentional civil rights violations. Common Bivens actions include unlawful arrests, improper searches and seizures, excessive use of force claims, etc. Basically the people challenging GITMO and enhanced interrogation techniques appear to have used the Bivens doctrine as a template to posture their argument (probably with an eye towards where we are going). Under the equal access to justice act, if AQ were to "win", the US would even pay their reasonable attorney fees.
Using the technique followed in Bivens, federal judges who object to a war, may use the bench to legislate and allow for suit or other remedies.
I'm just sayin' we may be opening Pandora's box when they get into the United States. Where this goes, nobody knows....
v/r
phil
On this bit about these terrorists could walk, some some have said they would never let them walk if it came down to that, that they'd just re-arrest them immediately, would that be the case?
In order to rearrest them, they would have to arrest them on charges unrelated to what they were just acquitted on. Jeopardy would attach to whatever was just adjudicated and they could not be charged in connection to whatever offense had been handled before. So once 9/11 is dealt with, it is no longer on the table except in appeals.
What if the trial of KSM "works"? By this I mean:
An acceptable balance between the interests of justice and those of national security is found so that the defendant receives a fair trial and there is little (if any chance) to reverse the proceedings or a decision.
The proceedings end up being timely and economical.
The correct verdict is reached.
The trial clears up not only the specific issues of this case but also establishes a framework for additional trials of alleged terrorists in the federal civil court system.
The MSM behaves responsibly.
The American people prove increasingly favorable of the use of civilian courts to try alleged terrorists.
I don't know about your first question other then to posit that I doubt many judges are going to be asking for this case and many will be trying to dodge it. The breadth and nature of this case could tie their courtroom up for years and potentially destroy them. I don't think it is the type of attention that many, if any, good jurists are looking for in their lives.
As to your second, I'd love to revisit this when this is over. I think there will be a clear and obvious answer to all of your hypothetical questions and I don't think any of them will show this to be a good decision. But - you probably knew this to be my personal opinion. I actually laughed out loud at the "timely and economical" part. That's funny.
ETA: Thanks to JAGO. I love reading his comments as his lifetime of experience really makes discussions like these not only productive but amazingly educational.
I agree with Richard philosophically on this, we have to remain true to our laws even when distasteful, if only for our own well being, but from a logistical perspective, for the attorneys on this board, what constitutes a jury of peers in this matter, and having been a NY'er during 9/11 how do you find 12 unbiased jurors from NY for this case? Wouldn't a venue change be the first defense request?
... what constitutes a jury of peers in this matter ...
Sadly, in today's society it too often has become 12 people too dumb to get out of jury duty.
v/r
phil
A pretty good summary review of some of the background on how we've gotten to where we are today with this one.
Richard
Q&A: Guantanamo detentions
BBC, 22 Jan 2009
What has President Obama said so far concerning Guantanamo?
Closing the controversial the camp at the US naval base in Guantanamo and ending the use of what have been termed "enhanced interrogation techniques" are central planks of his security agenda.
President Obama told Time magazine that if his administration had not "closed down Guantanamo in a responsible way, put a clear end to torture and restored a balance between the demands of our security and our constitution" within two years of taking office, then it would have failed.
So what steps is President Obama going to take?
One of his first acts as president was to request the suspension of all military tribunals there. A motion filed jointly by the White House and the US Department of Defense sought a 120-day suspension of trials.
The judges at Guantanamo quickly agreed to halt the cases of a Canadian accused of killing a US soldier in Afghanistan and five men charged in the 11 September attacks.
Similar decisions are expected in the other 13 pending cases.
So if military tribunals are suspended, what happens then?
It gives the Obama administration time to work out exactly how it will proceed in a highly complicated situation.
This includes reviewing the much-criticised system of military commissions, evaluating whether there is a case for prosecution of those detainees not approved for release or transfer, and if so where they should be tried.
The broad plan seems to be to close Guantanamo and move the trial process to the United States, but this is far from straightforward. For example, some of the evidence admissible in a military tribunal would not be accepted in a US civilian court. So a hybrid system combining civilian court rules with courts martial procedures is being examined.
There will also be a new push to get countries to accept those prisoners already cleared for release.
Another problem is that some prisoners cannot be sent back to their home countries because they run the risk of being tortured.
How many prisoners were facing a military tribunal?
The Bush administration had plans to try about 60 to 80 of the 245 foreign inmates still being held at Guantanamo. The camp once had some 750 prisoners.
As they stand, how do the current tribunals/commissions work?
They were established in 2006 by the Bush administration to try terror suspects under separate rules from regular civilian or military courts.
They are made up of between five and 12 US armed forces officers. However, if the death penalty is sought, then at least 12 members have to be on the commission. A qualified military judge presides over the hearing.
To get a conviction, at least two-thirds of the commission members have to be in favour.
For a sentence of death, which can be sought if death occurred as a result of a defendant's action, all 12 commission members have to agree. The final decision on carrying out a death sentence is taken by the US president.
Are the tribunals held in public?
The commissions are in public though the "public" is defined as members of the press and national or international organisations, agreed to by the secretary for defence. The tribunal can be closed if the safety of individuals or the protection of intelligence is required.
What safeguards are there for the defendant?
In a 12 June 2008 decision, the US Supreme Court ruled that foreign suspects at Guantanamo had the right to seek a full judicial review of their detention in civilian courts.
The court accepted arguments by lawyers for two prisoners, Lakhdar Boumediene and Fawzi al-Odah, that the Military Commissions Act (MCA) unlawfully deprived them of their right under the principle of habeas corpus. Habeas corpus is an ancient right acquired from English law under which a prisoner has to be brought before a court to have his/her detention justified.
What did the Bush administration say about habeas corpus?
It argued that habeas corpus did not extend to Guantanamo Bay as it was not US sovereign territory and that the system it had set up itself provided adequate safeguards.
These are that the accused will have the presumption of innocence and proof of guilt will have to be "beyond reasonable doubt". He cannot be forced to testify against himself. He will have a military lawyer and can also have a civilian one.
Also, the accused is able to be present for the proceedings unless he is ruled disruptive, to present evidence and witnesses in his defence and to cross-examine any witnesses against him. He has the right to be shown the evidence against him, though this will be in summary form if the judge decides that sources are kept secret for security reasons.
Mr Obama's choice for attorney general, Eric Holder, has said the commissions do not provide enough legal protections for defendants.
Can a defendant appeal?
If convicted, a defendant can appeal to a Court of Military Commission Review and then to the United States Court of Appeal, a civilian court. From there, an appeal might go to the US Supreme Court itself.
What drawbacks are there for the defendant?
There are some serious differences between the commissions and normal US law.
The decision to convict is by two-thirds vote, not unanimity as in a US jury trial. The commission itself, in effect the jury, is made up of military officers not members of the public.
A key difference is that any evidence, including hearsay (in which a witness says he/she was told or heard something from someone else), and some obtained by coercion, is allowed, "if the military judge determines that the evidence would have probative value to a reasonable person".
Evidence that contains classified information will be summarised to protect its sources, so the accused will not have a complete picture of the case against him.
What about evidence obtained by torture or coercion?
Evidence obtained under torture is not permitted, but evidence obtained by coercion can be.
The interrogation technique of "waterboarding" was not classified as torture by the Bush administration. However, the Obama administration seems set to take the opposite view. Eric Holder has said categorically that "waterboarding is torture".
What is currently happening at Guantanamo?
Alleged 9/11 mastermind Khalid Sheikh Mohammed and his co-accused Ali Abd al-Aziz Ali, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Walid bin Attash appeared at a pre-trial hearing on 19 January.
The proceedings went ahead despite a request by both the defence and prosecution teams for a delay.
The defendants, who face charges including terrorism, hijacking and murder, have all said they do not want to be represented by US military lawyers.
Their previous appearance was at a hearing in December when they came face to face with relatives of those killed in the 11 September attacks.
In May 2008, the Pentagon dropped charges against Saudi citizen Mohammad al-Qahtani - the man alleged to have been the "20th hijacker" in the 11 September 2001 attacks.
The official overseeing the trials, Susan Crawford, said in January 2009 that Mr Qahtani, who remains at Guantanamo, had been tortured.
Has anyone been convicted?
In March 2007 an Australian, David Hicks, pleaded guilty to helping the Taleban and was sent back home to serve a nine-month sentence.
On 6 August 2008, a six-member military jury convicted Osama Bin Laden's former driver, Salim Hamdan, of supporting terrorism. He was sentenced to 66 months. As he had spent time in pre-trial detention, his 66-month sentence was completed in November 2008 and he was returned to his home country of Yemen.
http://news.bbc.co.uk/2/hi/americas/5134328.stm
Obviously, it will be interesting whatever happens.
And so it goes...
Richard's $.02 :munchin
First US Trial Of 9/11 Case Was Full Of Surprises
Matthew Barakat and Michael J. Sniffen, AP, 17 Nov 2009
Zacarias Moussaoui was a clown who could not keep his mouth shut, according to his old al-Qaida boss, Khalid Shaikh Mohammed. But Moussaoui was surprisingly tame when tried for the 9/11 attacks — never turning the courtroom into the circus of anti-U.S. tirades that some fear Mohammed will create at his trial in New York.
And that wasn't the only surprise during Moussaoui's six-week 2006 sentencing trial here — a proceeding that might foreshadow how the upcoming 9/11 trial in New York will go.
Skeptics who feared prosecutors would be hamstrung by how much evidence was secret were stunned at the enormous amount of classified data that was scrubbed, under pressure from the judge, into a public version acceptable to both sides.
Prosecutors were surprised when they failed to get the death penalty — by the vote of one juror.
No one was more surprised than Moussaoui himself: At the end he concluded an al-Qaida member like him could get a fair trial in a U.S. court.
"I had thought that I would be sentenced to death based on the emotions and anger toward me for the deaths on Sept. 11," Moussaoui said in an appeal deposition taken after he was sentenced to life in prison. "(B)ut after reviewing the jury verdict and reading how the jurors set aside their emotions and disgust for me and focused on the law and the evidence ... I now see that it is possible that I can receive a fair trial."
All that suggests the dire predictions of critics and confident assertions of proponents should be viewed skeptically as prosecutors prepare to put Mohammed, the professed mastermind of the Sept. 11, 2001, attacks, and four of his alleged henchmen on trial in a civilian federal court.
The five had been headed for a military tribunal at the U.S. naval base at Guantanamo Bay, Cuba, until Attorney General Eric Holder announced last week he would charge them in civilian court and expects to seek the death penalty.
U.S. District Judge Leonie Brinkema, who presided over Moussaoui's trial — the first in this country over 9/11 — believes it proved federal courts can handle terror cases: "I've reached the conclusion that the system does work," she said in 2008.
The first lesson from Moussaoui's case: Don't expect a speedy trial.
Moussaoui was charged in December 2001 with conspiracy for his role. The case churned through years of pretrial hearings and appeals as judges sought to balance national security with Moussaoui's constitutional rights, often over what evidence could be used.
Documents later introduced at trial showed Moussaoui and Mohammed were well acquainted and Mohammed told interrogators he planned to use Moussaoui as a pilot for a second wave of hijacked jetliner attacks — plans that were eventually aborted. But Mohammed considered Moussaoui a problematic operative, who took instructions poorly and recklessly ignored directions to minimize communications.
Eventually, in 2005, Moussaoui pleaded guilty to conspiring with the Sept. 11 hijackers. Under the complex rules for federal death penalty cases, a separate sentencing trial was held in 2006 to determine whether Moussaoui would lose his life or spend the rest of it in prison. In the first phase, jurors concluded Moussaoui's actions were eligible for the death penalty, but in the second phase they spared his life — thanks to a lone holdout juror.
During the long run-up to trial, Moussaoui's abusive tirades in handwritten motions and outbursts in hearings created concerns the jury trial would devolve into chaos. Brinkema threatened to lock him in a separate room watching by video if he tried that.
Mindful of that threat, Moussaoui sat quietly at his separate table flanked by deputy marshals. On the few occasions he was called upon to speak, Brinkema kept him tightly on topic.
His theatrics were confined to one-liners — like "Victory for Moussaoui! God curse you all!" — that he tossed off to spectators as he left the courtroom after the jury departed for lunch or the day.
In military tribunal hearings at Guantanamo, Mohammed also showed a propensity for grandstanding. In one letter released by that tribunal, he referred to the attacks as a "noble victory" and urged U.S. authorities to "pass your sentence on me and give me no respite."
One of Moussaoui's lawyers, Edward MacMahon, isn't worried about Mohammed's behavior in court. "Federal judges deal all the time with defendants who try to disrupt cases," he said.
MacMahon, himself the target of some of Moussaoui's epithets, said he thought the trial "was a very dignified process."
Lead prosecutor Rob Spencer, now with Lockheed Martin Corp., said the Moussaoui trial allowed the public to see that Moussaoui took pride in the terror created by the Sept. 11 attacks on New York and Washington.
"A valuable part of the Moussaoui trial was that we got an unvarnished, public view of this guy ... of what we're up against" in dealing with al-Qaida terrorists, Spencer said.
Sorting through classified evidence should be easier in the upcoming case, experts said. First, the Moussaoui case generated detailed appellate rulings to guide lower courts. Second, much that was highly sensitive in 2003 may be far less so now.
On the other hand, there was no allegation Moussaoui was tortured into confessing, but coerced confessions or statements might be significant at Mohammed's trial. U.S. civilian courts bar evidence obtained under coercion, which could exclude what Mohammed told investigators after, as the Justice Department has acknowledged, he was waterboarded 183 times.
But there are also statements Mohammed made much later bragging about his role, and statements by others subjected to less harsh interrogation methods that fewer people consider to be torture, so there's grist for much legal argument.
Paul McNulty, U.S. attorney here when Moussaoui was prosecuted, said there is a crucial difference in the two cases: Moussaoui pleaded guilty, so the sentencing trial focused only on his punishment and there was no chance he'd go free. No one knows whether any New York defendants will contest their guilt.
McNulty wondered whether the public is willing to accept the chance of an acquittal.
McNulty expects New York judges to be as tough as Brinkema on issues like ensuring defendants access to witnesses. "It could get complicated very quickly," he said.
"It's not supposed to be easy," defense counsel MacMahon said. "The law makes it very difficult to obtain a death sentence. The government basically has to pitch a perfect game to win a death penalty."
http://news.yahoo.com/s/ap/20091117/ap_on_re_us/us_terror_trial_lessons
I actually laughed out loud at the "timely and economical" part. That's funny.Hopefully, you're laugh is melodic and not prone to guffaws, snorts, and titters.:)
If the president want to make a political argument that it would be more effective to treat terrorism primarily as a law enforcement issue, he could define "timely and economical" in the context of the overall cost and duration of military operations during GWOT to date.
So even if U.S. v. KSM ends up being the most expensive trial in American history and drags on just long enough for the verdict to come in as the president is running for re-election, he can (and probably will say) "And this is why a war against terrorism was wrong." Then, he could produce pie graphs comparing the cost of GWOT against his administration's pet projects.
Dozer523
11-18-2009, 06:20
I agree with Richard philosophically on this, we have to remain true to our laws even when distasteful, if only for our own well being, but from a logistical perspective, for the attorneys on this board, what constitutes a jury of peers in this matter, and having been a NY'er during 9/11 how do you find 12 unbiased jurors from NY for this case? Wouldn't a venue change be the first defense request?
New York city has a population of 8,008,278. As my father ued to say, "Rosanne Rozannadanna, YOU are one in a million . . . There's eight just like you in New York City."
It just goes to show you, if it's not. . . . ;)
Using the technique followed in Bivens, federal judges who object to a war, may use the bench to legislate and allow for suit or other remedies.
I'm just sayin' we may be opening Pandora's box when they get into the United States. Where this goes, nobody knows....v/r phil
Great post but you lost me at this part. Biven seems to be about accountability and ultimate fairness within our system of justice. The appeal system protects from zealous application of personal feelings. . . eventually.
Snaquebite
11-18-2009, 10:06
Couple of questions for the legal heads here...
Are they being tried as a group or will this be individual trials?
What procedural and national security problems will arise should even one if them attempt to represent himself? Will this not cause problems with disclosure of classified material?
Source is here (http://www.msnbc.msn.com/id/34015727/ns/us_news-security/print/1/displaymode/1098/).Obama: Alleged 9/11 leader will be executed
In NBC interview, he then backs off by saying he doesn't mean to prejudge
NBC, msnbc.com and news services
updated 11:32 a.m. PT, Wed., Nov . 18, 2009
WASHINGTON - President Barack Obama on Wednesday predicted that professed Sept. 11 mastermind Khalid Sheikh Mohammed will be convicted and executed, as U.S. Attorney General Eric Holder testified in the Senate to defend the strategy of civilian trials for the alleged Sept. 11 plotters.
In an interview with NBC News, Obama said those offended by the legal privileges given to Mohammed by virtue of getting a civilian trial rather than a military tribunal won't find it "offensive at all when he's convicted and when the death penalty is applied to him."
Obama quickly added that he did not mean to suggest he was prejudging the outcome of Mohammed's trial. "I'm not going to be in that courtroom," he said. "That's the job of the prosecutors, the judge and the jury."
Responding to concerns from some Republicans, Obama added that that the U.S. criminal court system will be able to handle the trials.
"(What) I think we have to break is this fearful notion that somehow our justice system can't handle these guys," Obama said.
Mohammed and his accused co-conspirators are to be moved to New York for trial in a court near the World Trade Center site. They are now at the U.S. military prison at Guantanamo Bay, Cuba.
Obama has promised to close the Guantanamo prison by Jan. 22, arguing it has served as a recruiting tool for anti-American militants and has hurt U.S. standing abroad.
But few expect him to reach that deadline because of political and legal hurdles, and in a separate interview Wednesday Obama would not talk about a specific day, instead saying he expected the closure sometime in 2010.
Holder testifies in Senate
Attorney General Holder has admitted the Jan. 22 deadline will be difficult to meet, particularly because it has been tough finding countries to take the 90 or so detainees who have been cleared of wrongdoing and are eligible for transfer.
In remarks to the Senate Judiciary Committee on Wednesday, Holder defended his decision to try Mohammed and the others in criminal courts and said classified material will also be protected during the trials.
"We know that we can prosecute terrorists in our federal courts safely and securely because we have been doing it for years," he said. "And at the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is in federal court."
Asked what might happen if the suspects are acquitted, Holder replied: "Failure is not an option. These are cases that have to be won. I don't expect that we will have a contrary result."
Seeking to allay acquittal concerns, Holder insisted the suspects will be convicted, but even if one isn't, "that doesn't mean that person would be released into our country."
Critics of Holder's decision — mostly Republicans — have argued the trial will give Mohammed a world stage to spout hateful rhetoric.
Holder said such concerns are misplaced, because judges can control unruly defendants and any pronouncements by Mohammed would only make him look worse.
"I have every confidence that the nation and the world will see him for the coward that he is," Holder told the committee. "I'm not scared of what Khalid Sheik Mohammed has to say at trial — and no one else needs to be either."
Holder said the public and the nation's intelligence secrets can be protected during a public trial in civilian court.
"We need not cower in the face of this enemy," Holder says. "Our institutions are strong, our infrastructure is sturdy, our resolve is firm, and our people are ready."
Tense exchange
Republicans have been divided on bringing the terrorism suspects to U.S. soil for trial. Many have argued they should be tried in military courts at Guantanamo because they believe criminal courts are not suited for such trials and they worry that the U.S. trial sites could become targets for attacks.
Tempers flared when Sen. Jon Kyl, R-Ariz., challenged Holder to say how a civilian trial could be better, since Mohammed has sought to plead guilty to a military commission.
"How could he be more likely to get a conviction than that?" pressed Kyl, to applause from some in the hearing room.
The attorney general said his decision is not based "on the whims or the desires of Khalid Sheikh Mohammed ... He will not select the prosecution venue, I will. And I have."
Geraldine Davie, whose 23-year-old daughter died at the World Trade Center's Tower One, attended the hearing as a spectator, and said she wants Mohammed to stay in the military system. "He's not a U.S. citizen, why should he have those rights? My daughter didn't have those rights," said Davie, who lives in Springfield, Va.
Opponents of the plan, including Holder's predecessor Michael Mukasey, have accused him of adopting a "pre-9/11" approach to terrorism.
Holder emphatically denied that.
"We are at war, and we will use every instrument of national power — civilian, military, law enforcement, intelligence, diplomatic and others — to win," Holder said.
Illinois prison for Gitmo detainees?
Officials are eyeing a prison in rural Illinois to house some of the remaining 215 detainees still at Guantanamo.
Other prominent Republicans said the security risks were being blown out of proportion and that the U.S. court system could handle the terrorism trials, a sentiment shared by Obama's fellow Democrats.
Holder also announced last week that five other detainees at Guantanamo, including the accused mastermind of the 2000 bombing of the USS Cole warship in Yemen, will be tried in revamped military commissions.
NBC's Chuck Todd, Reuters and The Associated Press contributed to this report.
Well, well. Protecting the jurors may be a problem. Imagine that.
The article emphasizes witness protection - but says little about juror protection. I cannot help but wonder if that is not the weak link - one must assume that the parties to the trial are sufficiently law abiding that the jurors will not be coerced or intimidated. I am not very comfortable with that assumption.
LINK (http://www.examiner.com/examiner/x-2684-Law-Enforcement-Examiner~y2009m11d18-Terrorist-intimidation-of-witnesses-jurors-overlooked-in-Khalid-Shiekh-Mohammed-trial)
-----------------------------------------------------------------------------
Terrorist intimidation of witnesses, jurors overlooked in Khalid Shiekh Mohammed trial
November 18, 2:50 PM
The KSM trial: protecting witnesses, jurors and their families is paramount.
Photo credit: Terrorism Committee, NACOP
Attorney General Eric Holder's decision to prosecute murderous, fanatical terrorists -- including the 9-11 mastermind Khalid Sheikh Mohammed -- speaks volumes about his ignorance of a major problem with protecting witnesses and members of a jury in a case involving terrorism or organized crime.
Many police officers and prosecutors have become increasingly frustrated by their inability to investigate and prosecute cases successfully when key witnesses refuse to provide critical evidence or to testify because they fear retaliation by the defendant or his family and friends. They've also found it difficult to protect jurors or their families.
This problem is particularly acute, and apparently increasing, in gang, terrorism, and drug-related criminal cases. Witnesses' refusal to cooperate with investigations and prosecutions should be a major concern: it adversely affects the justice system's functioning while simultaneously eroding public confidence in the government's ability to protect citizens.
A number of law enforcement agencies and prosecutors' offices across the country have already taken steps to prevent witness intimidation and jury tampering. These include increased use of traditional witness security measures such as routinely requesting high bail for known intimidators, aggressively prosecuting reported intimidation, closely managing key witnesses, expanding victim/witness assistance services, and sequestering jury members at an undisclosed location..
Several jurisdictions have also adopted innovative approaches, such as emergency and short-term relocation of witnesses (sometimes in collaboration with local public housing authorities), methods to prevent intimidation in the courthouse and jails, and outreach programs to reduce community-wide fear and intimidation.
Most innovative witness security programs include provisions for relocating genuinely endangered witnesses, and most of the prosecutors and law enforcement officers interviewed report that confidential witness relocation is the core protection service that all programs need to provide. Respondents identified three levels of relocation:
* emergency relocation -- placing the witness and his or her family in a hotel or motel for up to a few weeks;
* short-term or temporary relocation -- using a hotel or motel for up to a year or placing the witness with out-of-town relatives or friends; and
* permanent relocation -- moving the witness between public housing facilities or providing a one-time grant to reestablish the witness in new private housing.
Because most relocations involve witnesses living in public housing, prosecutors and police investigators have implemented a variety of approaches to working with local housing authorities to arrange the necessary transfers.
Gang members and associates of defendants often appear in court in order to frighten witnesses into not testifying. Since the threat may be very subtle and because judges often feel that the constitutional requirement of a public trial prevents them from removing such individuals from the courtroom, it is often difficult to stop this kind of intimidation. Nevertheless, a number of judges have taken steps to remove gang members from the courtroom, to segregate gang members and other intimidating spectators, or to close the courtroom entirely to spectators.
Incarcerated witnesses who are targets for intimidation in gang-and drug-related cases require special protection, including separation from the defendant within the same correctional facility or transfer to a nearby correctional facility, and separate transportation to court to testify.
An atmosphere of community-wide intimidation, even when there is no explicit threat against a particular person, can also discourage witnesses from testifying.
Prosecutors and police investigators try to reduce community-wide intimidation through community-based policing and prosecution strategies, vertical prosecution, and other strategies.
Whenever possible, jurisdictions can combine the range of witness protection approaches discussed above into a coordinated, comprehensive, and formal witness security program.
Prosecutors and police investigators recommend that a witness security program be structured carefully in order to maximize the use of shared resources, reduce prosecutor and police investigator involvement with time-consuming witness management tasks, and minimize civil liability of the prosecutor's office and police department.
To achieve these goals, a comprehensive witness security model includes an organizing committee, an operational team, a program administrator, and case investigators. Formal interagency cooperation among the groups involved in protecting witnesses is essential to achieving these goals.
Prosecutors often have statutory authority to prevent intimidation through techniques ranging from requesting the exclusion of gang members from the courtroom to impeaching the prosecution's own witnesses if they change their testimony between deposition or preliminary hearing and trial.
To avoid liability for the safety or misconduct of witnesses participating in witness security programs, experts strongly advise that no promises be made to witnesses unless they can be kept and that any promises that are made be cleared first with whoever has authority to comply with the promises.
Great post but you lost me at this part. Biven seems to be about accountability and ultimate fairness within our system of justice. The appeal system protects from zealous application of personal feelings. . . eventually.
Dozer 523,
Thank you.
Your assessment of a Bivens action is correct - it is (a judicially) created remedy to allow for a person who believes himself wronged by federal officials to gain a measure of accountablity (recovery of monetary damages). The "green salve"!
My point in bringing up Bivens is that the cause of action was never legislated by the congress or signed into law in the first place. We just can't predict where brining these illegal combatants into our domestic court system will go? My fear is that courts historically have been able to legislate from the bench through concepts such as equity (and judicial activism). Call me a cyncial old man but (personal) opinions and notions of fairness (dare I say feelings) of judges get involved when they create law on their own and judges may do with these terrorists what makes no sense at all.
All I am saying is that these defendants may ultimately be able to turn the tables on our nation through the use of our courts against us. Just as the acquited Mexican doctor has. Throw in the leanings of our MSM and this may get ugly.
I wish they would have left them in GITMO with the Commissions.....
v/r
phil
LINK (http://www.examiner.com/examiner/x-2684-Law-Enforcement-Examiner~y2009m11d18-Terrorist-intimidation-of-witnesses-jurors-overlooked-in-Khalid-Shiekh-Mohammed-trial)
Attorney General Eric Holder's decision to prosecute murderous, fanatical terrorists -- including the 9-11 mastermind Khalid Sheikh Mohammed -- speaks volumes about his ignorance of a major problem with protecting witnesses and members of a jury in a case involving terrorism or organized crime.
Many police officers and prosecutors have become increasingly frustrated by their inability to investigate and prosecute cases successfully when key witnesses refuse to provide critical evidence or to testify because they fear retaliation by the defendant or his family and friends. They've also found it difficult to protect jurors or their families.
This problem is particularly acute, and apparently increasing, in gang, terrorism, and drug-related criminal cases. Witnesses' refusal to cooperate with investigations and prosecutions should be a major concern: it adversely affects the justice system's functioning while simultaneously eroding public confidence in the government's ability to protect citizens.
A number of law enforcement agencies and prosecutors' offices across the country have already taken steps to prevent witness intimidation and jury tampering. These include increased use of traditional witness security measures such as routinely requesting high bail for known intimidators, aggressively prosecuting reported intimidation, closely managing key witnesses, expanding victim/witness assistance services, and sequestering jury members at an undisclosed location.
Several jurisdictions have also adopted innovative approaches, such as emergency and short-term relocation of witnesses (sometimes in collaboration with local public housing authorities), methods to prevent intimidation in the courthouse and jails, and outreach programs to reduce community-wide fear and intimidation.
<<SNIP>>What about the sources the blogger cites to prove his point?Sources: US Department of Justice, National Criminal Justice Research Service, New York City Police Department, National Association of Chiefs of Police So Mr. Kouri uses information from the DoJ to argue that AG Holder is "ignorant" about witness protection and the measures being taken to address that issue.:confused: Works for me.:p
And what about Mr. Kouri? From the same source.Jim Kouri, CPP is currently fifth vice-president of the National Association of Chiefs of Police and he's a columnist for The Examiner (examiner.com) and New Media Alliance (thenma.org). In addition, he's a blogger for the Cheyenne, Wyoming Fox News Radio affiliate KGAB (www.kgab.com), Kouri also serves as political advisor for Emmy and Golden Globe winning actor Michael Moriarty.
He's former chief at a New York City housing project in Washington Heights nicknamed "Crack City" by reporters covering the drug war in the 1980s. In addition, he served as director of public safety at a New Jersey university and director of security for several major organizations. He's also served on the National Drug Task Force and trained police and security officers throughout the country. Kouri writes for many police and security magazines including Chief of Police, Police Times, The Narc Officer and others. He's a news writer and columnist for AmericanDaily.Com, MensNewsDaily.Com, MichNews.Com, and he's syndicated by AXcessNews.Com. Kouri appear regularly as on-air commentator for over 100 TV and radio news and talk shows including Fox News Channel, Oprah, McLaughlin Report, CNN Headline News, MTV, etc. There's no such thing as bad publicity, even if that means talking to Michael Moriarty or meeting Ms. Winfrey in the green room.
Couple of questions for the legal heads here...
Are they being tried as a group or will this be individual trials?
What procedural and national security problems will arise should even one if them attempt to represent himself? Will this not cause problems with disclosure of classified material?
Snaquebite,
No idea, but I would hazard a guess that the US Attorney's Office will try to keep them joined for trial and probably be successful in that regard.
Your comment about representing themselves (pro se) is a one of the many hazzards of a trial in the US Dist Court. To borrow an old Army line, "So Judge, what are you going to do if I blurt out classified, charge me with me with killing 3,000 people?"
v/r
phil
What about the sources the blogger cites to prove his point?So Mr. Kouri uses information from the DoJ to argue that AG Holder is "ignorant" about witness protection and the measures being taken to address that issue.:confused: Works for me.:p.
(Ronald Reagan accent = ON)
Now Sigaba. There you go again.
(Ronald Reagan accent = OFF) ;)
Whatever AG Holder's capabilities, it seems a bit much to suggest he could absorb every element of the DOJ, its policies, practices, and capabilities in a mere 9 months.
I have been around a certain university since 1993, and I remain ignorant of some aspects of the place.
And what about Mr. Kouri? From the same source.There's no such thing as bad publicity, even if that means talking to Michael Moriarty or meeting Ms. Winfrey in the green room.
OK, so he's a publicity hound. We can unfriend him, if you wish.
How does this negate the central issue of juror intimidation?
If protection of jurors is not an issue, then please help me understand why.
Whatever AG Holder's capabilities, it seems a bit much to suggest he could absorb every element of the DOJ, its policies, practices, and capabilities in a mere 9 months.
I have been around a certain university since 1993, and I remain ignorant of some aspects of the place.
Maybe so, but AG Holder has been around the DOJ's highest levels for a lot longer than 9 months. ;)
OFFICIAL BIOGRAPHY
Eric Holder was sworn in as the 82nd Attorney General of the United States on February 3, 2009 by Vice President Joe Biden. President Barack Obama announced his intention to nominate Mr. Holder on December 1, 2008.
In 1997, Mr. Holder was named by President Clinton to be the Deputy Attorney General, the first African-American named to that post. Prior to that he served as U.S. Attorney for the District of Columbia. In 1988, Mr. Holder was nominated by President Reagan to become an Associate Judge of the Superior Court of the District of Columbia.
Mr. Holder, a native of New York City, attended public schools there, graduating from Stuyvesant High School where he earned a Regents Scholarship. He attended Columbia College, majored in American History, and graduated in 1973. He graduated from Columbia Law School in 1976.
While in law school, he clerked at the N.A.A.C.P. Legal Defense Fund and the Department of Justice's Criminal Division. Upon graduating, he moved to Washington and joined the Department of Justice as part of the Attorney General's Honors Program. He was assigned to the newly formed Public Integrity Section in 1976 and was tasked to investigate and prosecute official corruption on the local, state and federal levels.
Prior to becoming Attorney General, Mr. Holder was a litigation partner at Covington & Burling LLP in Washington.
Mr. Holder lives in Washington with his wife, Dr. Sharon Malone, a physician, and their three children.
http://www.justice.gov/ag/meet-ag.html
Richard
Whatever AG Holder's capabilities, it seems a bit much to suggest he could absorb every element of the DOJ, its policies, practices, and capabilities in a mere 9 months.AG Holder could do what bosses have been doing since before America was America--ask subordinates questions like "What do we know about..." and "What else do we need to cover..." and go from there. I have been around a certain university since 1993, and I remain ignorant of some aspects of the place.Then you may be interacting with the wrong people. By now, you could not only know where the skeletons are buried but you may have had the opportunity to dig some of the holes yourself.OK, so he's a publicity hound. We can unfriend him, if you wish.
How does this negate the central issue of juror intimidation?
If protection of jurors is not an issue, then please help me understand why.Is juror intimidation a central issue or one that is tangential to the broader issue of security? My point is that Mr. Kouri is making an argument about Mr. Holder's knowledge and expertise being deficient without really knowing.
Rather than raise the question of juror security and educate readers on the challenges this case presents, he makes a political accusation about Mr. Holder's competence. So in my mind, I wonder what Mr. Kouri's interests revolve around and what he's trying to achieve. (He knows all these people, has all this experience, and he can't pick up a phone and make some calls? What ever happened to the "passion for anonymity?")
Maybe so, but AG Holder has been around the DOJ's highest levels for a lot longer than 9 months. ;)
Richard
Good point. That's quite a resume.
AG Holder could do what bosses have been doing since before America was America--ask subordinates questions like "What do we know about..." and "What else do we need to cover..." and go from there.
Sure, he could have. But it is interesting to note that his boss could have done the same thing with regard to protocol and bowing to the Japanese emperor - and seemingly did not do so.
So - he could have found out. He should have found out. Whether he did find out will probably not come out until well after the trial is over - say, in 2091 or so.
Then you may be interacting with the wrong people. By now, you could not only know where the skeletons are buried but you may have had the opportunity to dig some of the holes yourself.
Me? Bury skeletons? Why Sigaba, how can you even suggest such a thing? A veritable Dudley Doright, that's me. ;)
Is juror intimidation a central issue or one that is tangential to the broader issue of security? My point is that Mr. Kouri is making an argument about Mr. Holder's knowledge and expertise being deficient without really knowing.
As the discussion continues, that seems to be a reasonable position. Just as we cannot prove whether the AG knows (or doesn't know) much about security, we also have no proof of Kouri's qualifications to discover the AG's capability.
Rather than raise the question of juror security and educate readers on the challenges this case presents, he makes a political accusation about Mr. Holder's competence. So in my mind, I wonder what Mr. Kouri's interests revolve around and what he's trying to achieve. (He knows all these people, has all this experience, and he can't pick up a phone and make some calls? What ever happened to the "passion for anonymity?")
Let's see now...which weighs heavier in the scales...passion or gold? :cool:
There is the possibility that he did make those calls and got information from sources that didn't want to risk disclosure. Or he could have made it all up, using a fevered imagination. The greater likelihood may well be the latter - but supposing the former is more fun. :D
As the discussion continues, that seems to be a reasonable position. Just as we cannot prove whether the AG knows (or doesn't know) much about security, we also have no proof of Kouri's qualifications to discover the AG's capability.
<<SNIP>>
There is the possibility that he did make those calls and got information from sources that didn't want to risk disclosure. Or he could have made it all up, using a fevered imagination. The greater likelihood may well be the latter - but supposing the former is more fun. :DThis touches on my second greatest gripe with the blogosphere--the use of evidence. As you point out, we don't know what Mr. Kouri knows about Mr. Holder but upon whom should fall the burden of proof when it comes to Mr. Kouri's assertions? (Is it likely that Mr. Holder is going to come out with his security plans for all the public to see? Probably not very.)
And even then, what is more important? A peepeetiddlegottagonowtoomuchcaffeine contest or raising an important point that merits careful consideration, study, and discussion?
And even then, what is more important? A peepeetiddlegottagonowtoomuchcaffeine contest or raising an important point that merits careful consideration, study, and discussion?
Depends. If one seeks as close an approximation to truth as possible, then a careful approach is best. If one wants to sell papers, a different path may be implied. Given the emotional loading of issues that connect with the current administration, dispassionate study may be a rarity for some time.
Depends. If one seeks as close an approximation to truth as possible, then a careful approach is best. If one wants to sell papers, a different path may be implied. Given the emotional loading of issues that connect with the current administration, dispassionate study may be a rarity for some time.MOO, it is incumbent upon those of us who oppose the current administration to be as dispassionate and as studious as we can stand.
For every criticism we voice, I think we should have at least one solution in mind and that solution needs to "work" for those who don't agree with us. For every flaw we point out in the administration's conduct, I think we should have in mind a fix. YMMV.
Praising this American president is something almost beyond my imagination. But if he gets something right, are we prepared to tip our hats or raise our glasses?
To what purpose, Sigaba? To what end?
Were such behavior modeling to transform the other side, then perhaps there is something to be gained. Likewise, if both sides embraced such a standard, then the country might fare better.
But I perceive that politics is neither kind, nor gentle, for fair. People win by whatever means are necessary. In such s situation, Sigaba - what is to be gained by following the path you suggest?
People win by whatever means are necessary. In such s situation, Sigaba - what is to be gained by following the path you suggest?Nmap--
Are you talking about American politics or soccer?:confused::D
Democrats are getting a lot of mileage by painting the GOP as "the party of no." IMO, this message is resonating where it hurts: among the independents and moderate-left supporters of the president.
If we are not going to moderate its policy preferences, we can at least modulate the tone of our rhetoric. Bring to the table solutions that will work and sooner or later you'll be asked "What else have you got?" YMMV.
Couple of questions for the legal heads here...
Are they being tried as a group or will this be individual trials?
What procedural and national security problems will arise should even one if them attempt to represent himself? Will this not cause problems with disclosure of classified material?
I don't know enough about the other defendants, the prosecutions theories and evidence for each defendant to render an informed opinion. Are all of them being tried for participating in the planning of the 911 attacks? If the answer is no, than they will be tried separately. However, if the answer is yes than from a purely trial strategy position, no competent defense attorney, or 1st year law student for that matter, who is representing one of the other defendants, not KSM, would allow, without first making the record very clear through numerous pre-trial motions, that their client cannot be tried in the same courtroom with KSM. They'd have a very persuasive argument that his, KSM's, notoriety and role in the 911 attacks would have an extremely prejudicial impact on their clients ability to defend himself and thus receive a fair trial. Again without knowing the details regarding the defendants and the prosecution theories, I suspect 99 out of 100 judges would agree to sever the cases and order separate trials. As a result, I believe there will be separate trials.
On your second question, Andrew McCarthy over at National Review, in the corner blog, outlines in great detail all of the national security problems with a Federal Article 3 trial. As I noted in my previous post, as certain as I am that KSM will be found guilty and sentenced to death in the civilian trial, I'm equally confident that major long term damage will occur to our national security in the same trial.
The most interesting part of this trial will occur when they get to selecting the jury. In fact I'd be more interested in reading the written juror questionnaires, the potential jurors written responses and sitting in and listening to the void dire than sitting in the jury room with the trial jury during guilt phase deliberations. Facts and litigation theories are nice, but, most experienced litigation attorneys, especially criminal attorneys who work on capital trials, will tell you that most trials are decided at void dire, jury selection. This is important because, although I'm not totally up to speed on the rules of procedure in Federal Court Article 3 trials, the jury is a death qualified jury, meaning that in order to be sat as a qualified juror, that individual under questioning by the prosecution, defense and the judge, has agreed that they will at least consider the death penalty as an option, if and when they get to the penalty phases of the trial. You will see both the prosecution and defense working hard to kick people off as well as attempting to rehab potential jurors who they feel are good for their side but are at risk to be excluded for cause. I've witnessed some of the funniest shit between the banter of all those involved. It's incredibly interesting to observe.
Just to be clear I'm not an attorney and I didn't stay at a Holiday Inn Express.
What if he gets off?
http://www.politico.com/news/stories/1109/29670.html
Wisconsin Sen. Herb Kohl, the second-ranking Democrat, also asked the question that many have raised: What if Mohammed gets off on a technicality or is acquitted?
Holder assured the committee that the United States has the ability to keep Mohammed in custody as an enemy combatant.
Holder’s main refrain, however, was that the decision to hold the trial in civilian court rather than a military commission was not political and was instead based on where he thought his best chance for conviction was.
***Suggested bookmark for those interestested in following news of this case from a law enforcement perspective:
http://www.ticklethewire.com/
v/r
phil
What if he gets off?
http://www.politico.com/news/stories/1109/29670.html
Wisconsin Sen. Herb Kohl, the second-ranking Democrat, also asked the question that many have raised: What if Mohammed gets off on a technicality or is acquitted?
Holder assured the committee that the United States has the ability to keep Mohammed in custody as an enemy combatant.
Which in itself proves that this is not about due process, constitutional rights or anything of the sort. They are putting on a really neat costly show that could end up being extremely dangerous and potentially troublesome to jurisprudence down the line. Nifty!
GreenSalsa
11-19-2009, 12:57
Wisconsin Sen. Herb Kohl, the second-ranking Democrat, also asked the question that many have raised: What if Mohammed gets off on a technicality or is acquitted?
Holder assured the committee that the United States has the ability to keep Mohammed in custody as an enemy combatant.
Then whats the point of a trial if the administration is ASSURING us of a guilty verdict? By definition the administration is holding a "kangaroo court", one of the main sticking points the administration had concerning a military court.
Then whats the point of a trial if the administration is ASSURING us of a guilty verdict? By definition the administration is holding a "kangaroo court", one of the main sticking points the administration had concerning a military court.I wonder if the administration is speaking as the prosecution.
When does a DA, state's attorney, or U.S. attorney not say in a capital case "We got the guy, we got the evidence, he's going to burn.":confused:
The Reaper
11-19-2009, 13:55
I wonder if the administration is speaking as the prosecution.
When does a DA, state's attorney, or U.S. attorney not say in a capital case "We got the guy, we got the evidence, he's going to burn.":confused:
Obviously not when he is a Muslim terrorist who shoots over 40 members of his U.S. Army unit in front of dozens of witnesses.
TR
Sen Lindsay Grahm (R-So Carolina) really gives it to A$$-hat, I mean AG Holder...
http://www.breitbart.tv/senator-presses-holder-would-osama-bin-laden-be-mirandized/
IMO, this will start a fire we won't be able to put out if start telling terrorists "they have the rigt to remain silent" etc...
I thought they were, or are the enemy?
It looks like one of the allies wants to get in on this cluster.
The Death Penalty Problem
9/11 Trial Puts German-US Relations Under Strain
The prosecutors in the forthcoming 9/11 trials in New York will be seeking the death penalty if the five defendants are found guilty. That could pose a problem for Germany, which is supplying vital evidence for the prosecution.
//
According to the current mutual legal assistance agreement between the two countries, should the information furnished by German investigators be used to impose the death penalty, Germany can insist that this evidence be considered inadmissible in court.
It's not the first time the two countries have locked horns over this issue. Shortly after the attacks, a heated debate flared up, followed by months of tug-of-war over German bank transfer documents, which played a key role in the trial of would-be French suicide pilot Zacarias Moussaoui.
//
The problems facing Germany in the upcoming New York trial are considerably more serious. Moussaoui had never lived in Germany and the dispute over evidence in his trial concerned only very few documents. But it is another story altogether with Ramzi Binalshibh, who was allegedly the main logistics man behind the attacks. He lived in Germany for six years and shared an apartment in Hamburg with two of the 9/11 suicide pilots, including Mohammed Atta, who crashed the first plane into the Twin Towers.
Working out of Germany, Binalshibh gathered information about flight training schools in the US and regularly transferred large sums of money to the future 9/11 hijackers. There were, therefore, a large number of references to the results of the German investigation in the old indictment against Binalshibh, which the Bush administration had hoped would be used in a trial heard before a military commission.
Justice Ministry Alarmed
Aside from that, federal prosecutors in New York will find it difficult to use confessions coerced using highly controversial interrogation methods such as waterboarding. "It is hard to imagine how the government could present a case against Ramzi Binalshibh where a significant portion of the government case would not be based on evidence gathered in Germany," says Thomas Durkin, who is a member of the ACLU John Adams Project and a member of Binalshibh's defense team.
This explains why Holder's announcement of the trial has alarmed the German Justice Ministry in Berlin and its subordinate agency in Bonn, the Federal Office of Justice, which is responsible for mutual legal assistance.
//
Ultimately, Moussaoui did not need to rely on help from German legal experts who questioned the admissibility of the evidence. He managed to escape the death penalty without their aid. One of the twelve jurors voted against death by lethal injection and Moussaoui was sentenced to life in prison.
http://www.spiegel.de/international/world/0,1518,662814,00.html
Just kidding!
WASHINGTON - Pressured by a growing clamor from New York, the Obama administration has decided to move the trial of Sept. 11 terror suspects away from Manhattan, where it had been scheduled to take place just blocks from the site of the twin towers attack.
http://www.msnbc.msn.com/id/35132816/ns/us_news-security/
This is becoming a pattern for the Obama administration.
Make a bold statement without really researching the issue and then quietly change your mind or backtrack, or whatever.
I give Holder 6 months tops.
and having the trial at West Point? :rolleyes:
I note with interest civilian vs Military justice system. One wrinkle that questions our values, the 5th amendment. By coincidence one of the Marine MSG guards posted in Tanzania when the attacked occured is the Co-President of UPenn Military Veterans Assoc.
http://www.bloomberg.com/news/2010-10-07/embassy-bombing-witness-barred-in-trial-by-judge-is-critical-u-s-says.html
http://www.nytimes.com/2010/11/18/nyregion/18ghailani.html?src=me
ApacheIP
11-17-2010, 20:54
http://www.nytimes.com/2010/11/18/nyregion/18ghailani.html?src=me
"Because of the unusual circumstances of Mr. Ghailani’s case — after he was captured in Pakistan in 2004, he was held for nearly five years in a so-called black site run by the Central Intelligence Agency and at Guantánamo Bay, Cuba — the prosecution faced significant legal hurdles even getting his case to trial.
On the eve of trial last month, the government lost a key ruling that may have seriously damaged its chances of winning convictions.
In the ruling, the judge, Lewis A. Kaplan of Federal District Court in Manhattan, barred them from using an important witness against Mr. Ghailani because the government had learned about the man through Mr. Ghailani’s interrogation while he was in C.I.A. custody, where his lawyers say he was tortured."
:( 12 anonymous jurors...escorted away by US Marshalls.
We need a facepalm emoticon.
I still cannot fathom why some in our government, including our justice department, want to treat these guys as common criminals instead of enemy combatants. I do not agree that torture is an effective means of interrogation, but Miranda doesn't apply to these guys either.