Bill Kristol has a pretty good article on the risks associated with the decision to try Khalid Sheikh Mohammed and his four associates in a civilian court. Kristol titles the article “A Risky Proposition for Democrats.” Indeed it might turn out to be. It also might turn out to be a costly decision where the safety of the American people is concerned, and, in the worst-case scenario, the most misguided decision an appointee — and, therefore, representative — of Barack Obama will ever make.
AG Eric Holder made a statement to the press yesterday in which he expressed his confidence in a “successful” outcome to the case. Most analysts interpreted the comment to mean Holder believes the case will end with convictions. I wish I shared their optimism. I’m not a lawyer, but to most lawyers a successful case is one in which relevant evidence is presented and fairly weighed by the judge and jury in arriving at a verdict. Could it be that Holder would be perfectly fine with acquittals across the board so long as rules of jurisprudence were followed?
Even more troubling is the history of civilian trials in this country, and specifically one: O. J. Simpson’s. What happens if KSM is found not guilty? As a resident of New York, I’m not exactly thrilled at the prospect of this man being turned lose on the streets of my city to vanish among the teeming crowds.
I know the liberal arguments on behalf of this decision. Patrick Leahy said it best when he said, “[B]y trying them in our federal courts, we demonstrate to the world that the most powerful nation on earth also trusts its judicial system — a system respected around the world.” How much trust will the world or Leahy, for that matter, have in our judicial system if the trial backfires and four of the guiltiest men alive walk?
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It is believed that, in the unlikely event that he and his associates are found not guilty, they would immediately be re-arrested on other charges. Eventually, they could even be turned over to other governments.
I strongly doubt that any of that will happen. More likely is that they will spend additional years awaiting conviction, eventually made subject of blackmail demands by AQ or others (free him or so-and-so dies or such-and-such is destroyed).
I’m also not sure how much airing of grievances KSM and friends will get to do. I do suspect that interrogation procedures will be brought up and brought up again. I don’t expect popular opinion about them to change much, however.
I think what observers – not including frogs – won’t like about it is the precedent of trying terrorists in the civilian system.
November 14th, 2009 at 12:01 pm
“Even more troubling is the history of civilian trials in this country…”
Howard, I don’t care how frothing much you hate this administration, that clause is just batsh*t crazy.
November 14th, 2009 at 12:09 pm
Dick Morris is pushing the “trial paints bullseye on NYC” angle. I think the bullseye was already painted, but this will add some phosphorescent highlights.
November 14th, 2009 at 12:09 pm
@ CK MacLeod:
What should we have done with McVeigh?
November 14th, 2009 at 12:11 pm
We’ve already McVeighed him in the balance and found him wanting.
We never declared war on rightwing militant nutjobs. In addition, McVeigh was a citizen of the U.S., though under a true domestic emergency situation, all sorts of niceties and precedents might have to be re-considered, and woe to the president who re-considers them too late.
Did you have something specific in mind with your question?
November 14th, 2009 at 12:15 pm
@ CK MacLeod
I also remember Feb, 93 there was some bombing here in NY. We caught some people, arrested and tried them in federal court here.
They weren’t all US citizens if memory serves.
Don’t think that any of them have been freed, but I could be wrong about that.
November 14th, 2009 at 12:21 pm
@ fuster:
And the trial was considered by many to be a major setback in the not-yet-a-war-on-terror. Among other things, it’s credited for alerting AQ and fellow travelers to intelligence means and methods that thereafter were no longer useful.
November 14th, 2009 at 12:35 pm
@ fuster:
Just don’t see the connection, fuster. I’d hate the decision if it were made by any administration. And the point is true–our criminal justice system is loaded with pitfalls that allow the guilty to walk free and erroneously find the innocent guilty.
Btw, I did not edit out your near-profanity this time, but pls be careful.
November 14th, 2009 at 12:54 pm
@ fuster:
Climate has changed since then. Muslims then were not a “diverse” group whose feelings you had to watch. Now they are.
November 14th, 2009 at 12:55 pm
@ Howard Portnoy:
These aren’t pitfalls, Howard, they’re safeguards.
It’s supposed to be hard for the gov’t to convict people of felonies.
There’s a lot of stuff written about this.
Is there a different system of criminal justice with a result history more to your liking?
November 14th, 2009 at 1:08 pm
@ fuster:
Good one!
Not to my knowledge, but I know enough about law and enough lawyers to know this system is deeply flawed.
November 14th, 2009 at 1:23 pm
It’s the worst system.. …….., except for all the others.
November 14th, 2009 at 1:57 pm
Arguably Holder’s most notorious official act to date was countermanding the prosecution, for attempted voter intimidation, of those Philly bat-wielders. That was assuredly political. If he doesn’t want KSM convicted, he could have found a less tortuous way to do it than authorizing a high profile jury trial. If he is a process fetishist why did he veto the Philly case? If he’s just a jerk or a crook, maybe it’s not worth parsing his rationalizations at all.
The simplest take is that Ø wants public convictions because He needs the scalps and the phony closure and because I doubt even Bill Ayers would make excuses for KSM. Although I could be wrong about the latter.
November 14th, 2009 at 1:59 pm
@ fuster:
The point you don’t seem to want to process is that the criminal justice system wasn’t designed for enemy combatants, and the enemy combatants weren’t apprehended with an eye to the criminal justice system. You merely confirm, again, that you want to view the fight with the KSM’s of the world as a “criminal” matter.
This summary of Mukasey’s comments is on point:
http://corner.nationalreview.com/post/?q=MWY1Zjk1M2RmNmY2MDEzMTlkNDIwNWFjNGQwODk2YmU=
November 14th, 2009 at 2:03 pm
@ CK MacLeod:
I can’t confirm what I haven’t said. I don’t view this as purely a criminal matter. Is that now clear?
Again, I’ll say that, at this point, a criminal trial is best for KSM.
But would you explain a bit about how KSM is properly an enemy combatant?
November 14th, 2009 at 2:19 pm
I don’t know the laws about things like this, but if Obama is OK with trying enemy combantants in civil courts, does that mean he’ll be OK with Italy’s conviction in absentia of the 23 CIA agents? I wonder how many he’s willing to sell out…..
November 14th, 2009 at 2:27 pm
@ fuster:
I’m not greatly interested in the technical legal definition of “enemy combatant.” A man who has himself committed and also has directed acts of violence against Americans and others in an attempt to advance anti-American political objectives qualifies as an enemy and a combatant.
If, as you concede, this is not “purely” a criminal matter, then the case for trying the defendant in a purely criminal context cannot be clear-cut and absolute. It is therefore a question of weighing pros and cons.
Carl Levin, with his usual genius for idiocy, tried to argue that KSM et al deserved to be treated as “common terrorist criminals.” The expression already tells you how confused his position is, and how low-saddled the high horse being ridden by those imputing any moral imperative to Holder’s decision.
November 14th, 2009 at 2:29 pm
@ fuster:
So, basically, you have EVERYTHING backwards. Me: The US is the greatest country on earth. You: The US is evil and has a “dark” history. Me: Obama’s a turd. You: I’m unfair; he’s great.
I will tell you this much, if this absurd trial goes through and these characters walk, Obama had better have really good security around him, because there are going a lot of Americans who want him dead.
November 14th, 2009 at 2:47 pm
@ Seth Halpern:
Seth, the Obama administration doesn’t believe in tortue.
November 14th, 2009 at 2:48 pm
@ Howard Portnoy:
Howard, what the hell are you talking about?
What did I say about the US that you could possibly think meant anything such as that?
November 14th, 2009 at 3:12 pm
@ fuster:
fuster, you claim to be fair and open-minded but come off somewhere between troll and leftish. I’m not going to back and collect comments from you, but the impression my comment conveys is certainly the one I have.
November 14th, 2009 at 3:18 pm
This may very well boomerang on our liberal masters.
In the meantime, it gives Eric the Hateful Holder an opportunity to really preen.
The midnight trip to Dover, the twice daily speeches before adoring crowds, the bullshit “deliberations” on Afghanistan…everything they do is being choreographed for their brief election ads in 2012.
They think this way they will be able to proudly display Khalid Sheikh Mohammed’s scalp on their belts.
I hope their low opinion of American voters is mistaken.
November 14th, 2009 at 3:20 pm
@ Howard Portnoy:
Gee, Howard, I guess hoping that a nice fair American-standard trial results in a nice, far conviction for KSM is really lefty-trollish.
I also guess that some whiny spitball complaining about the history of America’s common-law justice system is all red-blooded and patriotic.
Glory, glory.
November 14th, 2009 at 3:46 pm
@ fuster:
Silly beyond belief. It’s utterly pointless and moronic to “hope” for this outcome when a sane, perfectly legal military tribunal can get the job done safely, with no harm to civilians, and no concern setting the victims free on the streets of the homeland.
— Whiny spitball (I suppose)
November 14th, 2009 at 4:09 pm
@ Howard Portnoy:
Howard, I don’t suppose that you noticed that Supreme Court said that the military trials we were conducting were not perfectly legal?
November 14th, 2009 at 4:18 pm
Interesting that the trial of KSM et al may wind up being an indictment of the American Criminal Justice system and its rules of evidence. Given a relatively liberal judge I can easily see how it would be impossible to convict KSM. Most people aren’t aware of legal abstractions like Fruit of the Poisonous Tree, the Hearsay Rule etc. It has taken American police years to navigate the legal labyrinth set up by criminal defense lawyers and they still don’t get it right. None of the “investigations” were conducted with American rules of evidence and trials in mind. If the eventual judge in this case has the courage to strictly apply the rules of evidence the result could be a huge set back for “liberal” jurisprudence.
November 14th, 2009 at 4:30 pm
@ fuster:
Just proves my point about the judicial system in this country. In addition to which, a 5-4 decision isn’t what I call a compelling rejection of the idea, especially since it was tied into the issue of habeas corpus, which is irrelevant in wartime.
November 14th, 2009 at 4:31 pm
@ HalifaxCB:
That actually points up another danger of this approach that some Obama supporters, if not necessarily Obama himself, may see as a benefit – that, even if no one in the American legal system decides to make a case against the interrogators and others, the trial may well provide additional material for foreign courts seeking to make life difficult for the “torturers” and other supposed violators of supposed international norms.
November 14th, 2009 at 4:33 pm
@ Howard Portnoy:
Howard, we’re making a little progress here.
There were a few other issues in addition, things about violating the UCMJ and the Geneva Accords.
Care to guess what type of trial the Supremes aren’t going to find illegal?
How about the usual, tried-and-true, red-white-and-blue, all-American federal court type.
When you care enough to convict with the very best type?
You pay full price, but you know you’re getting quality.
November 14th, 2009 at 4:58 pm
Good piece Howard. You must have been writing it at the same time I was writing mine that appears just on the main page just above it.
I’m doubting my own sanity on this matter because I simply can’t see much chance of an upside for President Obama and Attorney General Holder in holding this trial. And I can see a lot of potential for downside.
If they get a conviction a large majority of Americans will think, ’so what. He’s obviously been guilty since the beginning.’ And the usual crazies will complain that he didn’t get a fair trial.
If the cluck beats the rap all the blame goes to the folks that decided to bring him to trial. And they have to release a fellow who obviously will try to kill again, and most Americans will know it.
And meanwhile – while they’re waiting to see whether they lose or they lose big – all through the trial, Americans get to see this nutcase and his lawyers savaging the military, the intelligence agencies and everyone else who is keeping them safe.
Somebody tell me what the administration gets out of this trial.
November 14th, 2009 at 7:41 pm
@ Sully:
this cluck?
Why would he have to be released should he somehow be found not guilty of the charges in federal court?
You think that there aren’t other charges that could be brought?
November 14th, 2009 at 7:50 pm
Hamdi, Hamdan, Boumedienne, three cases that consecutively ignored more than a hundred years of Supreme Court precedents
from Exparte Merryman to Quirin & Eisentrager.Only the Kelo case, something King John could have imagined, was a more reprehensible result, in recent memory
November 14th, 2009 at 7:56 pm
They please fuster and all the little fusters and fustrettes of the world. They please themselves. Most of all, they do something dramatically different from what the Bushies would have tried to do.
Or they’re winging it and not very good at what they’re trying to do. Holder apparently ground himself down under the weight of the opinions he gathered. Could be typical “seminar style” decisionmaking leading to a muddled groupthink result.
November 14th, 2009 at 8:01 pm
@ CK MacLeod:
Interesting you should say this. I was watching FOX Reports earlier, and a Dem strategist said the same thing, to which Fred Barnes replied: “That’s politics, not leadership. It’s a cosmetic difference.”
Once again, it comes down to appearances, which is all that counts to Obama and the Left.
November 14th, 2009 at 8:34 pm
@ CK MacLeod:
It would please all the fusters if you were just a little less wrong. You’re all wet. Try holding your head up and just sit and relax.
http://www.joshilynjackson.com/mt/toilet.jpeg
November 14th, 2009 at 8:36 pm
@ Howard Portnoy:
That, and avoiding all that stuff with Supreme Court reversals and overall legal incompetence and/or disdain.
November 14th, 2009 at 8:38 pm
I just signed a petition to reverse this misguided decision. I urge you all to do the same.
November 14th, 2009 at 8:54 pm
@ Howard Portnoy:
Is this an on-line petition? Do you have the link?
November 14th, 2009 at 9:39 pm
@ Peter Shalen:
Peter, yes, it is online. I forgot to include the link. My bad.
http://www.keepamericasafe.com/?page_id=1822
November 15th, 2009 at 6:14 am
”
So you’re saying this is only the first of as many trials as are necessary to get a conviction as the rationale to keep him locked up? Why bother having a trial at all?
You raise an interesting point: smart prosecutors, mostly on your side of the divide, have virtually destroyed the idea that there should be no double jeopardy, the state gets one bite of the apple.
November 15th, 2009 at 7:02 am
@ Sully:
Sully, the “smart” prosecutors you mention are what I fear most about a civilian trial. (I would call them “devious” or “gifted in loopholes,” but it works out to the same thing.) And because of the high visibility of this case, the best and the brightest are going to want to defend KSM.
This is SUCH a stupid idea!
November 15th, 2009 at 7:23 am
@ Howard Portnoy:
I agree that the trial is a stupid idea; but I’m having trouble avoiding the hope that surpassingly subtle lawyers actually do get him off. That would be a huge miscarriage of justice but a fantastic win for our side, especially if he gets off as the result of a gifted loophole of the sort no ordinary person will ever understand.
The more I think about this the more I suspect that President Obama and Attorney General Holder were mousetrapped into this decision, and not by their friends.
As to high visibility, I hope the trial is televised live. I’m visualizing later advertisements showing this Mohammed spitting out his namesake’s Quran quotes next to bodies falling from the WTC on split screen.
He and tens or hundreds of millions of his equally bloodthirsty buds want civilizational war to the death. I say there will never be a better time than now.
CK will be here in moments to decry my extremism.
November 15th, 2009 at 8:51 am
@ Sully:
Forsooth! I do decry your extremism, sir!
November 15th, 2009 at 8:59 am
@ Sully:
No, Sully. What I’m saying is that the government has long been saying that KSM has been involved in more terrorist acts of murder than those committed in NY.
November 15th, 2009 at 9:08 am
@ CK MacLeod:
Cry “Havoc!” and let slip the dogs of war,
You’ll soon know I’m right, down in your core.
Extremism in pursuit of submission has come,
Moderation in defense of self is plain dumb.
November 15th, 2009 at 9:20 am
Incidently, I now feel a bit less like a voice in the wilderness. It turns out Mike Potemra of National Review agrees with me, although perhaps not in all particulars.
http://corner.nationalreview.com/post/?q=OWUxNzFiZDQ1YWVlM2Y4NzI2MzJkMWE1ZjJjYTFlOWE=
November 15th, 2009 at 9:39 am
Yeah, he kinda left out the part about a fight to the death with 1/5th of the population of the world.
November 15th, 2009 at 9:42 am
For what possible reason should we be afraid of what these people have to say when they’re going to be saying it in a place and at a time where it’s going to be immediately answered?
November 15th, 2009 at 9:54 am
@ CK MacLeod:
And you kinda overstated my position. I don’t want to kill everybody, CK. Just my enemies.
November 15th, 2009 at 9:57 am
@ fuster:
The default position is that when Jihadist killers want something real bad – publicity, for instance – it’s a good idea to think about denying it to them. The point of political violence isn’t mainly the violence, but the politics.
November 15th, 2009 at 10:07 am
@ fuster:
Fuster and Sully, holding the fort,
Faithful frog and frightful poet,
Supporting the trial while others snort,
Reasons differ, yet united we go it.
Sully wants to give them exactly what they wish for,
Fuster wants to give them rights that mobs abhor.
Two species in a boat,
And the river upset.
Never loose a quote,
That poles can’t share a bed.
November 15th, 2009 at 10:13 am
@ CK MacLeod:
Well understood, Macleod, but the publicity for what they have to say has long been available.
The pitiful line of patter that they run rarely is held up and knocked back down with one of them in the room having to answer.
I can’t, even in my woolly-headed lefty suck-up heart, help thinking that truth is a fine answer to their lies and smacking one of them in the teeth with it is a pretty fine thing.
November 15th, 2009 at 10:18 am
@ fuster:
Don’t have high confidence it will go down that way on Al Jazeera or even on Al MSNBC, but you never know.
November 15th, 2009 at 10:25 am
I would add that just the fact that they’re there “still standing, loving death for Allah,” “bravely facing the American crusaders,” etc., may speak volumes regardless of what the prosecutors and politicians have to say about it.
Presuming of course that the trial actually takes place within our lifetimes or ever.
November 15th, 2009 at 10:27 am
@ CK MacLeod:
I’ll be real happy with a unanimous jury and a majority decision in the media.
November 15th, 2009 at 10:32 am
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