Khalid Sheikh Mohammed on Trial in NY?

[Snaquebite]

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?

[Sigaba]

Source is here.

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.

[nmap]

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

-----------------------------------------------------------------------------

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.

[JAGO]

Originally Posted by Dozer523

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

[Sigaba]

LINK

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. Works for me.

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.

[JAGO]

Originally Posted by Snaquebite

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

[nmap]

Originally Posted by Sigaba

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. Works for me..

(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.

Originally Posted by Sigaba

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.

[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.

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

[Sigaba]

Originally Posted by nmap

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.

Originally Posted by nmap

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.

Originally Posted by nmap

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?")

[nmap]

Originally Posted by Richard

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.

Originally Posted by Sigaba

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.

Originally Posted by Sigaba

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.

Originally Posted by Sigaba

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.

Originally Posted by Sigaba

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?

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.

[Sigaba]

Originally Posted by nmap

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.

This 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?

[nmap]

Originally Posted by Sigaba

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.

[Sigaba]

Originally Posted by nmap

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?

[nmap]

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?

[Sigaba]

Originally Posted by nmap

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?

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.