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Further Thoughts On The Khalid Sheikh Mohammad Show Trial

by @ 7:34 am on November 19, 2009. Filed under Al Qaeda, Barack Obama, Homeland Security, Politics, September 11th, War On Terror

It’s becoming more and more apparent that the Obama Administration’s decision to try Khalid Sheikh Mohammad in a civilian court has little to do with actual justice.

Consider for example this exchange between Senator Chuck Grassley and Attorney General Holder:

Sen. Charles Grassley (R., Iowa): “I don’t think you can say that failure to convict is not an option, when we have juries in this country.”

Attorney General Eric Holder: I have thought about that possibility. Congress has passed legislation that would not allow the release of these individuals in this country. If there is not a successful conclusion to this trial, that would not mean that this person would be released into this country . . .

Grassley: My understanding is that if for some reason he’s not convicted, or a judge lets him off on a technicality, he’ll be an enemy combatant, so you’re right back where you started.

In other words, the trial is a sham:

[I]f the defendants have zero chance of being released, this is a show trial and a sham. That’s frankly much worse than the status quo, much less a military tribunal.

Senator Lindsey Graham, meanwhile, did an even better job of attacking Holder and the logic behind the KSM civilian trial:

SENATOR LINDSEY GRAHAM, (R-S.C): Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

ERIC HOLDER, ATTORNEY GENERAL: I don’t know. I’d have to look at that. I think that, you know, the determination I’ve made –

GRAHAM: We’re making history here, Mr. Attorney General. I’ll answer it for you. The answer is no.

HOLDER: Well, I think –

GRAHAM: The Ghailani case — he was indicted for the Cole bombing before 9/11. And I didn’t object to it going into federal court. But I’m telling you right now. We’re making history and we’re making bad history. And let me tell you why.

(…)

GRAHAM: If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?

HOLDER: He would certainly be brought to justice, absolutely.

GRAHAM: Where would you try him?

HOLDER: Well, we’d go through our protocol. And we’d make the determination about where he should appropriately be tried. [...]

GRAHAM: If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?

HOLDER: Again I’m not — that all depends. I mean, the notion that we –

GRAHAM: Well, it does not depend. If you’re going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you’re criminalizing the war, that if we caught bin Laden tomorrow, we’d have mixed theories and we couldn’t turn him over — to the CIA, the FBI or military intelligence — for an interrogation on the battlefield, because now we’re saying that he is subject to criminal court in the United States. And you’re confusing the people fighting this war.

And Holder had no answer for that, because there is none, because the civilian criminal process is inherently inapplicable on the battlefield.

Just as it is absurd to be trying Khalid Sheikh Mohammed in a civilian court for 9/11, it would be absurd to try Osama bin Laden in a civilian court for his decade long war against the United States. This isn’t a law enforcement issue, and al Qaeda is not the Mafia, it’s time to stop pretending that they are.

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15 Responses to “Further Thoughts On The Khalid Sheikh Mohammad Show Trial”

  1. NickN says:

    I’m not sure I follow the logic here.

    If we are to say that this is a war, then are we legitimizing the ability of the federal government of the United States to declare war on a group of people?

    If we say that 9/11 was an act of war, then what are we trying KSM for? After all, in war, murder is quite honestly the objective isn’t it? So then we are down to the Geneva Convention. Are we to say that because this caused civilian deaths, they are guilty of war crimes? Because if so, that would mean that the U.S. has committed war crimes all over the world in almost every decade.

    Was Sadam Hussein put on trial because he was the leader of the opposition to Gulf War I and II? No, he was put on trial for the brutal murder of entire communities within his own country.

    Don’t get me wrong, I want the bastard dead. I want UBL dead too. But I am having trouble putting together the logic of either this being a legitimate war, which would give our government power to declare war on any group of people in the world including conservatives, liberals, and libertarians, or the need to try a murder case in military court.

    Just my two cents.

  2. Vast Variety says:

    They are also not the military arm of a nation we are at war with. They are not POW’s. POW’s deserve more respect and dignity than these mass murders do.

  3. They are enemy combatants and there are specific provisions under the Geneva Convention for dealing with them.

    But let me ask you this —- if by some quirk KSM were found not guilty of all charges against him, do you believe he should be released ?

    If the answer is no, then under what authority do we have to hold him ?

    And if we have that authority — which we most assuredly do — then it means that the criminal trial itself is a sham.

  4. NickN says:

    Vast,

    Just for clarification, we are not at any officially declared war with any nation right now. We are occupying 2 countries, but no war has been declared.

  5. NickN says:

    Doug, that point would be valid if KSM were a guy on a battlefield who surrendered to our forces. If memory serves me correctly, our military raided his apartment or house and got him out of bed. So if we say he is a combatent because of his proclimation of masterminding 9/11, we are back to that being an act of war or not, which may in fact excuse the murders of 3,000 Americans. If he is a POW, then we need a war in which to justify his detainment. If we go solely on the GC, then we need to prove some sort of War Crime (which could very well be done I’m sure).

  6. tfr says:

    So are we going to make him read a “confession” in front of the cameras too?

    Correct me if I’m wrong Doug, but doesn’t KSM get to see all of the prosecution’s case against him for disclosure? I don’t know if that would include things that the gov’t currently considers national security secrets, which would not be out in the open in a military tribunal.

  7. John Freeman says:

    Doug, can you provide any reasoning for your claim that he is an enemy combatant?

    Nick is right in that he was not “captured on a battlefield.” He is also not a member of a nation’s army; he is one of a group of criminals. If we are so damn certain that he was behind 9/11, then there should be NO problem convicting him in any court.

    There are existing processes to present evidence that protects “national security” secrets (which is usually just an excuse to keep the government from paying for its mistakes).

    There really is no reason he cannot be tried in a court of law.

    Should the government be able to capture without a warrant, torture, disregard habeas corpus, and try Americans outside of a court of law because of the War on Drugs or War on Poverty? Why should it be able to with the War on Terror? Yes, I know KSM is not an American citizen, but Jose Padilla was, and I haven’t heard enough people say that the government cannot unilaterally declare a citizen an “unlawful enemy combatant” in order to disregard their inalienable rights.

  8. He was the commanding general in an act of war on the United States.

    Trying him in a civilian court makes as much sense as trying Yamamoto in a court in Hawaii would have made.

  9. Cargosquid says:

    Here’s the part that’s scary. Holder did NOT say we would keep him in custody. ”
    Congress has passed legislation that would not allow the release of these individuals in this country. If there is not a successful conclusion to this trial, that would not mean that this person would be released into this country”

    He is saying that KSM would not be released IN THIS COUNTRY. Graham missed the follow-up. WHERE WOULD HE BE RELEASED?

  10. James Young says:

    Absolutely agree with you here, Doug. This is a travesty.

  11. Let's Be Free says:

    Obama doesn’t care what happens to KSM if the prosecution fails. By the time all the legal wrangling is done he either won’t be President or will be well into a second term. Truth is we have a very short sighted president who views things through the prism of authority, not a fellow who knows how to think strategically. His intellectual skills are wrapped up in rhetoric. This is what inexperience begets.

  12. Let's Be Free says:

    And by the way, that was masterful questioning by Lindsey Graham, I’ve never been so impressed by the fellow. I can see why McCain respects him so much.

    Graham understands that you got to look at these issues not merely through the prism of legalisms, but also through the eyes of the men and women who are out on battlefields or work for our national security aparatus on secret missions to combat radical terrorists.

    Living in Northern Virginia, I have come to realize that a lot of these people are our neighbors — my hat is off to them.

  13. Cargosquid says:

    Graham was showboating. While he made valid points, HE VOTED FOR HOLDER TO BE CONFIRMED.

    So much for worrying about what Holder does.

  14. Let's Be Free says:

    Of course Graham was showboating, that’s part of the job. Wouldn’t criticize him for that. The way I figure, a little bit of sugar sent his way for a good voyage can only help.

    And yes, there was plenty of evidence that Holder was not going to be a good AG — hold Graham accountable for that.

  15. [...] Perhaps he got the idea from President Obama, who already declared KSM guilty, or from Attorney General Holder, who said that Mohammed will not go free regardless of what happens at trial. [...]

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