KRAUTHAMMER: Travesty in New York

[Warrior-Mentor]

November 20, 2009
Travesty in New York
By Charles Krauthammer

WASHINGTON -- For late-19th-century anarchists, terrorism was the "propaganda of the deed." And the most successful propaganda-by-deed in history was 9/11 -- not just the most destructive, but the most spectacular and telegenic.

And now its self-proclaimed architect, Khalid Sheik Mohammed, has been given by the Obama administration a civilian trial in New York. Just as the memory fades, 9/11 has been granted a second life -- and KSM, a second act: "9/11, The Director's Cut," narration by KSM.

September 11, 2001 had to speak for itself. A decade later, the deed will be given voice. KSM has gratuitously been presented with the greatest propaganda platform imaginable -- a civilian trial in the media capital of the world -- from which to proclaim the glory of jihad and the criminality of infidel America.

So why is Attorney General Eric Holder doing this?

Ostensibly, to demonstrate to the world the superiority of our system where the rule of law and the fair trial reign.

Really?

What happens if KSM (and his co-defendants) "do not get convicted," asked Senate Judiciary Committee member Herb Kohl. "Failure is not an option," replied Holder. Not an option? Doesn't the presumption of innocence, er, presume that prosecutorial failure -- acquittal, hung jury -- is an option?

By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place.

Moreover, everyone knows that whatever the outcome of the trial, KSM will never walk free. He will spend the rest of his natural life in U.S. custody. Which makes the proceedings a farcical show trial from the very beginning.

Apart from the fact that any such trial will be a security nightmare and a terror threat to New York -- what better propaganda-by-deed than blowing up the entire courtroom, making KSM a martyr and making the judge, jury and spectators into fresh victims? -- it will endanger U.S. security. Civilian courts with broad rights of cross-examination and discovery give terrorists access to crucial information about intelligence sources and methods.

That's precisely what happened during the civilian New York trial of the 1993 World Trade Center bombers. The prosecution was forced to turn over to the defense a list of two hundred unindicted co-conspirators, including the name Osama bin Laden. "Within ten days, a copy of that list reached bin Laden in Khartoum," wrote former Attorney General Michael Mukasey, the presiding judge at that trial, "letting him know that his connection to that case had been discovered."

Finally, there's the moral logic. It's not as if Holder opposes military commissions on principle. On the same day he sent KSM to a civilian trial in New York, Holder announced he was sending Abd al-Rahim al-Nashiri, mastermind of the attack on the USS Cole, to a military tribunal.

By what logic? In his congressional testimony Wednesday, Holder was utterly incoherent in trying to explain. In his Nov. 13 news conference, he seemed to be saying that if you attack a civilian target, as in 9/11, you get a civilian trial; a military target like the Cole, and you get a military tribunal.

What a perverse moral calculus. Which is the war crime -- an attack on defenseless civilians or an attack on a military target such as a warship, an accepted act of war which the U.S. itself has engaged in countless times?

By what possible moral reasoning, then, does KSM, who perpetrates the obvious and egregious war crime, receive the special protections and constitutional niceties of a civilian courtroom, while he who attacked a warship is relegated to a military tribunal?

Moreover, the incentive offered any jihadi is as irresistible as it is perverse: Kill as many civilians as possible on American soil and Holder will give you Miranda rights, a lawyer, a propaganda platform -- everything but your own blog.

Alternatively, Holder tried to make the case that he chose a civilian New York trial as a more likely venue for securing a conviction. An absurdity: By the time Obama came to office, KSM was ready to go before a military commission, plead guilty and be executed. It's Obama who blocked a process that would have yielded the swiftest and most certain justice.

Indeed, the perfect justice. Whenever a jihadist volunteers for martyrdom, we should grant his wish. Instead, this one, the most murderous and unrepentant of all, gets to dance and declaim at the scene of his crime.

Holder himself told The Washington Post that the coming New York trial will be "the trial of the century." The last such was the trial of O.J. Simpson.

letters@charleskrauthammer.com

SOURCE:
http://www.realclearpolitics.com/articles/2009/11/20/travesty_in_new_york_99224.html

[Utah Bob]

Holder was utterly incoherent in trying to explain.

That's for sure. I understood the technospeak the astronauts were using on the Shuttle better than Holder as I flip flopped between Fox and the NASA channel.

The circus is coming to the Big Apple.I can envision the t-shirt vendors and hot dog carts outside the courthouse. Nice soft target.:rolleyes:

[incarcerated]

http://online.wsj.com/article/SB10001424052748704888404574547681569546414.html

Eric Holder's Baffling KSM Decision

The attorney general's Senate testimony this week did nothing to reassure the families of 9/11's victims.
OPINION
NOVEMBER 20, 2009, 10:24 P.M. ET
By DAVID BEAMER
On Wednesday, the Senate Judiciary Committee met to question Attorney General Eric Holder about his decision to prosecute Khalid Sheikh Mohammed and four others in criminal courts rather than military tribunals. As the father of Todd Beamer, who died on United Airlines Flight 93, I was able to attend that hearing. What transpired caused me great concern and shook my confidence in our current administration.

The committee, chaired by Sen. Patrick Leahy (D., Vt.), displayed the division in our country not only visually—the Democrats were seated on the left and the Republicans on the right—but in every aspect of the proceedings. I expected that some members would agree with Mr. Holder and that others would have challenging questions about his decision. What I did not anticipate was the level of partisanship showed by the majority party. It seemed clear to me and other family members of victims that party loyalty is trumping concern for America's security interests.

In his opening remarks, Attorney General Holder acknowledged that these defendants could have been brought to trial in civilian court or before military tribunals. But he made the argument that trying them in our criminal courts would restore the integrity of our judicial system. He assured us that the trials would be quick, that the safety of New Yorkers would be paramount, that classified information would not be revealed, that the evidence was overwhelming, and that justice would be served.

Then he said that the USS Cole attackers would be tried in military courts since they attacked our military. So how does Mr. Holder categorize the Pentagon? Inexplicably, he offered up the body count of 9/11, the fact that civilian deaths outnumbered military ones, as a rationale for his decision.

Then the Republican members proceeded to ask Mr. Holder thoughtful questions. Some examples:

How can we be assured that these enemies will be found guilty? Given that criminal courts are now the presumed venue for those captured on the battlefield, will soldiers need to read them their rights at the time of capture? Since you wish to make exceptions on a case-by-case basis to the presumed civil venue, don't all those captured need to be read their rights and have the opportunity to remain silent? Won't this venue expose intelligence to our enemies? Can our classified information really be secured? Can we in fact predict how the judge will rule? If these people are brought into the country will they get additional rights under immigration law? What if they claim asylum?

The attorney general seemed bewildered in the face of these inquiries. Recurring themes in his responses included "I think," and "I can't imagine," and "I am not an expert in immigration."

Has our attorney general not considered these issues, or imagined the possible unintended consequences that will arise from his historic decision? It certainly seemed that way. If he had, he would have had better answers.

A second shocker: Mr. Holder said that he and his boss had not spoken in person about this decision. This matter only involves upholding the constitutional rights of Americans, establishing a precedent with battlefield impact, and the safety and security of our citizens in a time of war. What are the criteria to make something a priority with President Barack Obama? How can it be that this matter didn't make the cut?

The Democrats used much of their questioning time to heap praise upon Mr. Holder. They all repeated the same trope: We'll show the world that America can conduct these trials openly in criminal courts. And we'll be successful, even as we convey rights to the defendants that are not warranted.

Since when has "show the world" been a primary objective?

No thoughtful questions from the majority party regarding this decision were forthcoming. Their questions mostly addressed other matters. They discussed overcrowding in our prisons (too many drug criminals being sentenced), asked why none of the $500 million in appropriations have helped the rape-kit processing backlog, and inquired about when recommendations for additional staff would be presented for confirmation. Their lack of attention to the pressing matter at hand suggested apathy.

Sen. Chuck Schumer (D., N.Y.) did ask a question about how much the trials will cost. Clearly there will be expense incurred if this does go to trial in New York City. The early, and by no means complete, estimate is that it will cost $75 million for the first year. Mr. Schumer did not express any concern about the costs involved but only asked the attorney general for assurance that all would be covered by federal funds. This question was promptly and explicitly answered in the affirmative by Mr. Holder. After all, this is a rather modest amount by Washington standards.

Our enemies must be thrilled. We are willingly handing them an opportunity to inflict economic harm on New York City, keep their cause in the headlines, gather new intelligence, create new terror strategies, stimulate recruiting, celebrate new-found rights, and foist a fresh round of pain and suffering upon their victims.

This decision is September 11, the sequel. It is my hope that Mr. Holder will reconsider.

A final observation: During the proceedings a young lady, dutifully attentive, sat with a stack of paper about 15 inches high on her lap. The papers contained names, single spaced, of some 100,000 people who signed a letter in opposition to this decision. This young woman, Jill Regan, lost her dad, Donald J. Regan, FDNY of the Bronx, who died trying to save others on 9/11. Sen. Jeff Sessions (R., Al.) asked that those names be entered into the record at the end of the session. It was agreed, but by that time the chairmen and most of the Democrats were already gone. I grieved for her—and for all of us—anew.

Mr. Beamer is the father of Todd Beamer, who died on United Airlines Flight 93 on 9/11.

[Warrior-Mentor]

Sad how this is going...wish we could do something to fix it. barring a Presidential Order to have Holder change venue [which won't happen], we're stuck with it.

What's it take to get the Attorney General fired? :mad:

[Warrior-Mentor]

An Irrational Act
Trying KSM in NYC will delay the verdict,
and reduce the chances it is the right one.
National Review Online
By Andrew C. McCarthy

Here’s the biggest problem with the Obama administration’s decision to transfer Khalid Sheikh Mohammed and four other 9/11 jihadists to the civilian court system: It makes sense only if it’s being done for the wrong reasons — to provide a forum for the Left to use al-Qaeda as a vehicle to put the Bush administration on trial, to give the Left the “reckoning” that the Obama campaign promised before the 2008 election.

As a matter of law enforcement or national security, it is irrational. To demonstrate this, we need look no farther than the two principal justifications Attorney General Eric Holder has offered: the asserted need to end delay in seeking justice and the claim that a civilian trial provides the best chance for a successful prosecution.

On the matter of delay, let’s put aside for now the fact that, during the Bush years, Holder’s former firm — and many lawyers who’ve since been recruited into his Justice Department after years of volunteering their services to the nation’s enemies — used every arrow in the litigator’s quiver to delay, delegitimize, and derail war-crimes trials by military commission.

Let’s also ignore the fact that by subordinating terror prosecutions to terror prevention — i.e., by prioritizing interrogation and the gathering of intelligence over appointing counsel and disclosing intelligence — we thwarted additional terror attacks and saved lives. Let’s just stick with what passes for the attorney general’s reasoning: that it has taken too long for the military courts to complete war-crimes cases and that we must change our approach to avoid unnecessary delay.

This contention makes no sense. It’s true that the trial of for KSM & Co. had not yet taken place when the Obama administration suspended the military case. But extensive commission proceedings have been under way for three years. A team of military and Justice Department lawyers has meticulously built the government’s case. The prosecutors have evaluated over half a million documents to determine admissibility and discoverability under commission rules.

The elaborate process of obtaining security clearances for defense counsel had been completed, and counsel had been in place and working, notwithstanding the jihadists’ dalliance with self-representation. Tens of thousands of documents already had been provided in discovery. And, perhaps most significant, there had been extensive pretrial court hearings: over a hundred motions had been made by the accused war criminals, and those motions had been answered by the prosecution, meaning that they stood ready for the tribunal to consider.

Three years is not an unusual amount of time for all this necessary groundwork to be completed in the civilian system, certainly not in a national-security case involving voluminous foreign intelligence evidence. But here’s the thing: At this point in the commission proceeding, this work is finished. In the civilian court, by contrast, it has barely started. The terrorists have not even been indicted on a 9/11 case yet. In fact, they haven’t even appeared in court.

Even before they get to the Big Apple, the laborious, prohibitively expensive pretrial process has to start all over again. This will not be a simple matter of handing the file over to a different court that can then pick up where the commission left off. Despite secrecy rules, it has been reported that an extensive grand-jury presentation is now ongoing.

In the military system, there would have been no need for this; the charges were filed eons ago. Now, new defense lawyers will have to be appointed and subjected to background investigations so that any security clearances needed to review the discovery are processed. (Even if the terrorists opt to represent themselves, the civilian court will have to appoint standby counsel in case they change their minds.)

The new lawyers, for both sides, will have to go through the discovery for themselves. Moreover, the questions of what is discoverable and what is admissible will have to be completely rethought under (a) the new civilian indictment, which may be markedly different from the charges that were specified in the military court, and (b) the very different rules that apply in the civilian justice system. There are no shortcuts here: This has to start from scratch.

And that doesn’t begin to describe the delay. After a lengthy period to review discovery and for the defense counsel to conduct their own investigations (bank on this taking well over a year), the defendants will have an opportunity to make a plethora of motions to suppress evidence, obtain access to additional government intelligence, dismiss the indictment on speedy-trial and “outrageous government misconduct” grounds, etc.

Many of these motions will call for evidentiary hearings. This is the years-long phase that nearly destroyed the civilian prosecution of 9/11 plotter Zacarias Moussaoui — and might well have succeeded in destroying it had he not unexpectedly pleaded guilty. KSM will not be fool enough to do that now that he has the Broadway stage he has always craved.

In sum, by moving the case to civilian court this far into the process, the Obama administration sinks down the drain the years of work that went into pretrial litigation in the military court — work that cost taxpayers untold millions of dollars. That is, despite that talk about avoiding delay, the administration has gratuitously saddled the public with years of wasted effort, years of extra work, and mountains of extra expense.

[Warrior-Mentor]

Now, let’s consider the purported “avoid delay” rationale in conjunction with Attorney General Holder’s other claim: that the civilian court provides the government with its best chance of obtaining convictions.

The military commissions were designed to make it easier for the prosecution to prove its case in a streamlined fashion. This was done with three wholly legitimate wartime aims in mind: to protect national-defense information from disclosure, to prevent the need to summon witnesses from the military and intelligence services, and to make certain that if accused war criminals deserved to be convicted, they would be convicted. That last point doesn’t mean they get no due process; it means war criminals should get the minimal due process necessary to make the trial fair while maximizing the chances that the most atrocious offenders will be found guilty.

In civilian court, defendants get huge advantages. Unlike military commissions, which permit the introduction of confessions so long as they are voluntary, civilian courts normally have Miranda warnings as a precondition of admissibility. These jihadists were not Mirandized. And this problem is even worse with KSM. The issue is not CIA waterboarding — coerced statements would not be admissible in either military or civilian trials. At issue, instead, are the extensive statements the terrorists voluntarily gave to the FBI. Specifically with respect to KSM, the complication is not only his Miranda right to counsel but his constitutional right to counsel under the Fifth and Sixth Amendments.

That is because, unlike the other 9/11 plotters, KSM has been under indictment in the civilian system since the mid-1990s. He was charged for the “Bojinka plot” to bomb U.S. airliners over the Pacific. Consequently, under the constitutional protections he gets in the civilian system, he was formally deemed an “accused” and became entitled to counsel even before he was captured and interrogated. That is, even if the Justice Department can somehow overcome the lack of Miranda warnings, KSM has an additional ground to seek suppression. In the military system, he was an unlawful enemy combatant with no constitutional shield; but as far as the civilian system is concerned, he was an indicted defendant who was denied the assistance of counsel by law-enforcement agents. Thus, he’ll contend, his confessions are inadmissible, even if he gave them voluntarily.

In his Senate Judiciary Committee testimony, the attorney general downplayed any admissibility problems concerning the statements. I strongly suspect he’s chest-thumping. Sure, with or without the confessions, the government can undoubtedly prove that KSM is guilty of membership in the al-Qaeda conspiracy. But this is a capital case: Success for the prosecution means not only proving guilt but convincing the jury to return a death verdict. Here, imposition of the death penalty will hinge on the government’s ability to explain KSM’s pivotal role in the 9/11 plot. The prosecution is likely to have a hard time doing that if it can’t put his statements to the FBI in front of the jury. And, for some of the lesser plotters, it may be difficult without the confessions even to establish guilt, let alone to obtain capital sentences.

Even if the prosecutors can surmount these challenges, the point is that they are real challenges. The confessions would certainly be admitted in the military commission; in the civilian court, it’s iffy at best. How could iffy be better for the case than certain?

The confessions are only the most obvious example of why the commissions offer a better chance of conviction. They are not the only example. In the commissions, hearsay rules are relaxed, the chain-of-custody requirement needed to authenticate evidence is more easily satisfied, provisions are in place to avoid the necessity of summoning soldiers and intelligence officers for testimony, and foreign intelligence services can more readily cooperate because the rules provide more leeway for keeping their assistance, and their secrets, secret.

Put it all together and it is no wonder KSM & Co. were ready, a year ago, to plead guilty in their military commission and proceed to execution. If the Obama administration had gone forward with the case, it would already be over.

The administration has taken a case that was ripe and ready for a swift, successful conclusion — a case in which prosecutors and the public had invested enormous effort and expense — and turned it into what will be a years-long struggle. At the end of that struggle, after terrorists have used our courts for three or more years to put our government on trial, the outcome will be less sure. Yes, convictions still will be likely, but capital sentences will be anything but certain. Indeed, civilian juries have already declined to hand down death sentences for Moussaoui and for two of the 1998 embassy bombers.

If the imperatives here are avoiding delay and improving the prosecution’s odds,
the decision to shift to the civilian court system is irrational.

— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).

SOURCE:
http://article.nationalreview.com/?q=NjM2OTZjYWY1NTYyNGY1NGZiOGY3NWUyNTkyMmM0MDk=