I'm not a lawyer, but I would argue that our stature in the world is damaged far more by a show trial and the defendant's subsequent conviction and execution.
This move will serve only to broadcast to the world the vindictiveness of the Obama administration and the extent to which they (we) are willing to compromise American judicial processes to prosecute our enemies. It would be much better to simply allow the military courts to complete the process they've already started.
One of the great things about the American political system is that the judiciary is totally independent from either the legislative or the executive branch.
Quote:
I'm not a lawyer, but I would argue that our stature in the world is damaged far more by a show trial and the defendant's subsequent conviction and execution.
Far more than holding them without trial indefinitely in a semi-legal offshore prison?
No. This is a ridiculous statement you are making.
How are they compromising the Judicial process, exactly?
They are not being held without trial...the military tribunal is ongoing.
. What possible benefit is there to bringing them to NYC for a civil trial (except the political one espoused by Durbin)? They are not citizens...and shouldn't be treated as such.
These terrorists have admitted their guilt with respect to 9-11 and/or the Cole...show no remorse and continue to say they would kill more Americans given the opportunity. Should they be acquitted thru failure of the prosecution or even a technicality (a very real possibility if the judge takes his responsibility to prosecute them as he would an American)
...would you honestly take the high road and release them, knowing their desires to attack and kill Americans again?
Why Is It a Problem?
Josh Marshall | November 16, 2009, 11:25AM
A lot of people -- mainly but by no means exclusively Republicans -- were on the Sunday shows yesterday denouncing the administration's decision to jail and try KSM and four accused 9/11 plotters in New York City. And most of the criticism comes under three distinct but related arguments: 1) civilian trials give the defendants too many rights and protections and thus create too big a risk they'll get acquitted and set free, 2) holding the prisoners and trial in New York City puts the city's civilian population at unnecessary risk of new terror attacks, and 3) holding public, civilian trials will give the defendants an opportunity to mock the victims, have a platform to issue propaganda or gain public sympathy.
The first two arguments strike me as understandable but basically wrong on the facts. The third I find difficult in some ways even to understand and seems grounded in bad political values or even ideological cowardice.
Let's start with the idea that civilian trials have too many safeguards and create too big a risk these guys will go free. This does not hold up to any scrutiny for two reasons. First, remember all those high-profile terror prosecutions where the defendants went free? Right, me neither. It just does not happen. The fact is that federal judges are extremely deferential to the government in terror prosecutions. And national security law already gives the government the ability to do lots of things the government would never be allowed to do in a conventional civilian trial. (People who really think this is an issue seem to base their understanding of federal criminal procedure on watching too many Dirty Harry movies, which, as it happens, I'm actually a big fan of. But remember, they're movies.) KSM is not going to be able to depose or cross-examine CIA Director Leon Panetta or President Bush or Vice President Cheney or anyone else.
The possibility that a judge would suppress evidence obtained through torture is a real one. But Eric Holder made clear he and his prosecutors believe they have more than enough untainted evidence to obtain convictions. So that should not be an issue.
Finally, even in the extremely unlikely case that any of the five were acquitted of these charges, the government has a hundred other things it can charge them with. Indeed, the government could as easily turn them over to military commissions or indefinite detention post-acquittal as it can do those things with them now. That may not make civil libertarians happy. But it is the nail in the coffin of any suggestions that these guys are going to be walking out of the federal courthouse in lower Manhattan saying they're headed to Disneyland. It's simply not going to happen.
(The best argument against what I've argued here is probably the case of El Sayyid Nosair, the murderer of Jewish extremist leader Meir Kahane, who received a partial acquittal when he was tried in 1991. Here I would say that the case came prior to modern counter-terrorism law in the United States, which I'd date to the first World Trade Center bombing in 1993. And the Nosair example actually proves my larger point since a subsequent terrorism conspiracy trial got Nosair a life without parole plus fifteen year sentence, which he is now serving at the SuperMax facility in Florence, Colorado.)
We can imagine a different set of facts, where all the most damning evidence was obtained through torture, and acquittal seemed at all a reasonable possibility. In that case there might be a real question as to whether it was worth taking the risk when military commissions which have been used in the past are available. But this 'risk' simply doesn't appear to exist so you do not even need to get to the constitutional or deeper rule-of-law questions.
Next we have the question of danger to the people of New York City. As I said in my first post on this question, just on the facts I don't think al Qaeda terrorists are holding off on attacking New York now because they lack or incentive or feel we haven't pushed things far enough yet to merit another hit. The symbolic value of hitting New York might increase a bit. But it's already so high for these people that the increase seems notional at best. And more to the point, I choose to trust the people already charged with keeping the city safe.
On a more general level, however, since when is it something we advertise or say proudly that we're going to change our behavior because we fear terrorists will attack us if we don't? To be unPC about it, isn't there some residual national machismo that keeps us from cowering even before trivially increased dangers? As much as I think the added dangers are basically nil, I'm surprised that people can stand up as say we should change what we do in response to some minuscule added danger and not be embarrassed.
And finally we come to the fear of what KSM and the others will say. I don't see what factual dispute there is here. And at some level I don't even understand the argument. Logically I understand it; I understand what they're saying. But it's so contrary to my values and assumptions that at some level I don't get it. I cannot imagine anything KSM or his confederates would say that would diminish America or damage us in any way. Are we really so worried that what we represent is so questionable or our identity so brittle? (Some will say, yes: torture. The fact that some of these men were tortured is a huge stain on the country. But it happened and it's known about. To the extent that it is a stain it is the kind of stain that is diminished not made worse by an open public accounting.) Does anyone think that Nuremberg trials or the trial of Adolph Eichmann in Jerusalem in 1961 or the war crimes trials of Slobodan Milosevic and others at the Hague advanced these mens' causes? Or that, in retrospect, it would have been wiser to hold these trials in secret?
At the end of the day, what are we afraid these men are going to say?
What we seem to be forgetting here is that trials are not simply for judging guilt and meting out punishment. We hold trials in public not only because we want a check on the government's behavior but because a key part of the exercise is a public accounting and condemnation of wrongs. Especially in great trials for the worst crimes they are public displays pitting one set of values against another. And I'm troubled by anyone who thinks that this is a confrontation in which we would come out the worse.
Hold on a sec. You go from stating that they admitted they were guilty and say they would do it again, to stating that they could be acquitted?
How are they going to be acquitted if they plead guilty?
And if they aren't pleading guilty, then they deserve a chance to prove their innocence just like every other person on the planet.
The trials are not about THEM, they are about US.
Finally, even in the extremely unlikely case that any of the five were acquitted of these charges, the government has a hundred other things it can charge them with. Indeed, the government could as easily turn them over to military commissions or indefinite detention post-acquittal as it can do those things with them now.
.that genie's out of the bottle already.
Instead, he is holding court on the Bush administration while assembling a kangaroo court to affix a predetermined guilty verdict on the terrorists.
They know that these guys will be found guilty...Holder has already promised that.
My written statement addresses a number of other issues before the Department, but I would like to use the rest of the time allotted to me today to address a topic that I know is on many of your minds - my decision last week to refer Khalid Sheikh Mohammed and four others for prosecution in federal courts for their participation in the 9/11 plot.
As I said on Friday, I knew this decision would be controversial. This was a tough call, and reasonable people can disagree with my conclusion that these individuals should be tried in federal court rather than a military commission.
The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions. Courts and commissions are both essential tools in our fight against terrorism. Therefore, at the outset of my review of these cases, I had no preconceived views as to the merits of either venue, and in fact on the same day that I sent these five defendants to federal court, I referred five others to be tried in military commissions. I am a prosecutor, and as a prosecutor my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case in the best forum.
I studied this issue extensively. I consulted the Secretary of Defense. I heard from prosecutors from my Department and from the Defense Department's Office of Military Commissions. I spoke to victims on both sides of the question. I asked a lot of questions and weighed every alternative. 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.
I know there are members of this committee, and members of the public, who have strong feelings on both sides. There are some who disagree with the decision to try the alleged Cole bomber and several others in a military commission, just as there are some who disagree with prosecuting the 9/11 plotters in federal court.
Despite these disagreements, I hope we can have an open, honest, and informed discussion about that decision today, and as part of that discussion, I would like to clear up some of the misinformation that I have seen since Friday.
First, we know that we can prosecute terrorists in our federal courts safely and securely because we have been doing it for years. There are more than 300 convicted international and domestic terrorists currently in Bureau of Prisons custody, including those responsible for the 1993 World Trade Center bombing and the attacks on our embassies in Africa. Our courts have a long history of handling these cases, and no district has a longer history than the Southern District of New York in Manhattan. I have talked to Mayor Bloomberg of New York, and both he and the Police Commissioner Ray Kelly believe that we can safely hold these trials in New York.
Second, we can protect classified material during trial. The Classified Information Procedures Act, or CIPA, establishes strict rules and procedures for the use of classified information at trial, and we have used it to protect classified information in a range of terrorism cases. In fact, the standards recently adopted by Congress to govern the use of classified information in military commissions are derived from the very CIPA rules that we use in federal court.
Third, Khalid Sheikh Mohammed will have no more of a platform to spew his hateful ideology in federal court than he would have in military commissions. Before the commissions last year, he declared the proceedings an "inquisition," condemned his own attorneys and our Constitution, and professed his desire to become a martyr. Those proceedings were heavily covered in the media, yet few complained at the time that his rants threatened the fabric of our democracy.
Judges in federal court have firm control over the conduct of defendants and other participants in their courtrooms, and when the 9/11 conspirators are brought to trial, I have every confidence that the presiding judge will ensure appropriate decorum. And if KSM makes the same statements he made in his military commission proceedings, I have every confidence the nation and the world will see him for the coward he is. I'm not scared of what KSM will have to say at trial - and no one else needs to be either.
Fourth, there is nothing common about the treatment the alleged 9/11 conspirators will receive. In fact, I expect to direct prosecutors to seek the ultimate and most uncommon penalty for these heinous crimes. And I expect that they will be held in custody under Special Administrative Measures reserved for the most dangerous criminals.
Finally, there are some who have said this decision means that we have reverted to a pre-9/11 mentality, or that we don't realize this nation is at war. Three weeks ago, I had the honor of joining the President at Dover Air Force Base for the dignified transfer of the remains of eighteen Americans, including three DEA agents, who lost their lives to the war in Afghanistan. The brave soldiers and agents carried home on that plane gave their lives to defend this country and its values, and we owe it to them to do everything we can to carry on the work for which they sacrificed.
I know that we are at war.
I know that we are at war with a vicious enemy who targets our soldiers on the battlefield in Afghanistan and our civilians on the streets here at home. I have personally witnessed that somber fact in the faces of the families who have lost loved ones abroad, and I have seen it in the daily intelligence stream I review each day. Those who suggest otherwise are simply wrong.
Prosecuting the 9/11 defendants in federal court does not represent some larger judgment about whether or not we are at war. We are at war, and we will use every instrument of national power - civilian, military, law enforcement, intelligence, diplomatic, and others - to win. We need not cower in the face of this enemy. Our institutions are strong, our infrastructure is sturdy, our resolve is firm, and our people are ready.
We will also use every instrument of our national power to bring to justice those responsible for terrorist attacks against our people. For eight years, justice has been delayed for the victims of the 9/11 attacks. It has been delayed even further for the victims of the attack on the USS Cole. No longer. No more delays. It is time, it is past time, to act. By bringing prosecutions in both our courts and military commissions, by seeking the death penalty, by holding these terrorists responsible for their actions, we are finally taking ultimate steps toward justice. That is why I made this decision.
In making this and every other decision I have made as Attorney General, my paramount concern is the safety of the American people and the preservation of American values. I am confident this decision meets those goals, and that it will withstand the judgment of history.
Thank you.
<<<<<snip>>>>
International law is actually not particularly ambiguous about the status of the members of al Qaeda. The Geneva Conventions do not apply to them because they have not adhered to a fundamental requirement of the Geneva Conventions, namely, identifying themselves as soldiers of an army. <<<snip>>>>
Holder’s decision to transfer Khalid Sheikh Mohammed to federal court makes it clear that Mohammed was not a soldier acting in time of war, but a criminal. While during times of war spies are tried as criminals, their status is precarious, particularly if they are members of an enemy army. Enemy soldiers out of uniform carrying out reconnaissance or espionage are subject to military, not civilian, justice, and frequently are executed. A spy captured in the course of collecting information is a civilian, particularly in peacetime, and normally is tried as a criminal with rules of evidence.
Which was Mohammed? Under the Geneva Conventions, his actions in organizing the Sept. 11 attacks, which were carried out without uniforms or other badges of a combatant, denies him status and protection as a POW. Logically, he is therefore a criminal, but if he is, consider the consequences.
Criminal law is focused on punishments meted out after the fact. They rarely have been preventive measures. In either case, they follow strict rules of evidence, require certain treatments of prisoners and so on. For example, prisoners have to be read the Miranda warning. Soldiers are not policemen. They are not trained or expected to protect the legal rights of captives save as POWs under the UCMJ, nor protect the chain of custody of evidence nor countless other things that are required in a civilian court. In criminal law, it is assumed that law enforcement has captured the prisoner and is well-versed in these rules. In this case, the capture was made without any consideration of these matters, nor would one expect such consideration.
<<<snip>>>>
Therefore " and now we move to the political reality " it is difficult to imagine how the evidence accumulated against Mohammed could enter a courtroom. Ignoring the methods of questioning, which is a separate issue, how can one prove his guilt beyond a reasonable doubt without compromising sources and methods, and why should one? Mohammed was on a battlefield but not operating as a soldier. Imagine doing criminal forensics on a battlefield to prove the criminal liability of German commandos wearing American uniforms.
In our mind, there is a very real possibility that Mohammed could be found not guilty in a courtroom. The cases of O.J. Simpson and of Jewish Defense League head Rabbi Meir Kahane’s killer, El Sayyid Nosair " both found not guilty despite overwhelming evidence " come to mind. Juries do strange things, particularly amid what will be the greatest media circus imaginable in the media capital of the world.
But it may not be the jury that is the problem. A federal judge will have to ask the question of whether prejudicial publicity of such magnitude has occurred that Mohammed can’t receive a fair trial. (This is probably true.) Questions will be raised about whether he has received proper legal counsel, which undoubtedly he hasn’t. Issues about the chain of custody of evidence will be raised; given that he was held by troops and agents, and not by law enforcement, the chances of compromised evidence is likely. The issue of torture will, of course, also be raised but that really isn’t the main problem. How do you try a man under U.S. legal procedures who was captured in a third country by non-law enforcement personnel, and who has been in military custody for seven years?
There is a nontrivial possibility that he will be acquitted or have his case thrown out of court, which would be a foreign policy disaster for the United States. Some might view it as a sign of American adherence to the rule of law and be impressed, others might be convinced that Mohammed was not guilty in more than a legal sense and was held unjustly, and others might think the United States has bungled another matter.
<<<snip>>>>
Holder has opened up an extraordinarily complex can of worms with this decision. As U.S. attorney general, he has committed himself to proving Mohammed’s guilt beyond a reasonable doubt while guaranteeing that his constitutional rights (for a non-U.S. citizen captured and held outside the United States under extraordinary circumstances by individuals not trained as law enforcement personnel, no less) are protected. It is Holder’s duty to ensure Mohammed’s prosecution, conviction and fair treatment under the law. It is hard to see how he can.
<<<<snip>>>>
SOURCE: STRATFOR
WWW.STRATFOR.COM
Holder exposed no flaws in my argument...merely said "trust me...nothing will go wrong." Sorry but my trust in this administration evaporated months ago...
Alice Hoagland, whose son Mark Bingham died aboard Flight 93, spoke with Holder after the hearing had ended. One of four jetliners hijacked on 9/11, Flight 93 crashed into a Pennsylvania field after passengers rushed the cabin.
''We are heartsick and weary of the delays and machinations,'' said Hoagland, of Redwood Estates, Calif.
Holder sought to reassure her there was evidence, not yet made public, that makes federal court the best place to try Mohammed.
''I guess what I'm saying is trust me,'' the attorney general said quietly, as reporters and security staff crowded around the pair.
source
Quote:Alice Hoagland, whose son Mark Bingham died aboard Flight 93, spoke with Holder after the hearing had ended. One of four jetliners hijacked on 9/11, Flight 93 crashed into a Pennsylvania field after passengers rushed the cabin.
''We are heartsick and weary of the delays and machinations,'' said Hoagland, of Redwood Estates, Calif.
Holder sought to reassure her there was evidence, not yet made public, that makes federal court the best place to try Mohammed.
''I guess what I'm saying is trust me,'' the attorney general said quietly, as reporters and security staff crowded around the pair.
...you were saying?
I'm not a lawyer, but I would argue that our stature in the world is damaged far more by a show trial and the defendant's subsequent conviction and execution.
Retired Military Leaders Say Stop Fear-Mongering, Close Guantanamo to Ensure National Security
Dozens of retired military leaders praise prosecution of Guantanamo detainees in U.S. Federal Courts
(Washington, DC " November 18, 2009) Dozens of distinguished retired military leaders today urged Congress to stay the course toward closure of the U.S. detention facility at Guantánamo Bay and to see past the fear-mongering tactics designed to delay the Administration's efforts to close the facility and bring those held there to justice. These retired military leaders issued their call to Congress on the same day that Attorney General Eric Holder appears before the Senate Judiciary Committee to discuss the Department of Justice's commitment to keeping Americans safe.
The letter and today's hearing come just days after Attorney General Holder announced the U.S. will move the trials of the five Guantanamo detainees accused in the 9/11 conspiracy from the discredited Guantanamo military commissions and into federal courts, which have an impressive track record in trying complex terrorism cases. It also comes just one day after the Senate blocked an amendment to restrict the Administration's ability to move detainees into the United States for prosecution.
"We have watched with disappointment efforts to engender fear among the American people about the prospect of bringing suspected terrorists to the United States for trial," wrote the 32 retired military leaders in an open letter to Congress. "Our federal justice system has a proven track record of successfully prosecuting terrorists and incarcerating them safely in our prisons."
The retired military leaders are among those who stood with President Obama in the Oval Office as he signed Executive Orders ending the use of torture and ordering the closure of the Guantánamo detention facility. The group stated that many al Qaeda terrorists are already serving long sentences in federal prisons and pointed to a recent American Correctional Association resolution assuring the American public that they "would be safe from harm and free from danger should any detainees be transferred to a facility or facilities within the United States." They also noted that U.S. prisons currently house more than 150 convicted terrorists and none has ever escaped.
"The American people can have confidence that our judicial and penal institutions are strong and that our military, law enforcement and corrections professionals are second to none. Closing the Guantanamo prison facility will make Americans more secure, both on our own soil and on the battlefields where our service members fight valiantly on our behalf," the letter stated. "We urge you to do all you can to ensure that Guantanamo is closed promptly by sending detainees to their home countries or other nations willing to accept them, and by bringing those who have committed crimes against the United States here to face justice."
In a recent study of 119 terrorism cases with 289 defendants and filed since 2001 in the normal federal court system, Human Rights First found that of the 214 defendants whose cases were resolved as of June 2, 2009, 195 were convicted either by verdict or by a guilty plea. By contrast, the military commissions are a failed system that has secured only 3 convictions and their continued use threatens to perpetuate the legacy of failed trial and detention policies at Guantanamo.
Beyond the legal and ethical reasoning outlined in today's letter, the military leaders stated that closing Guantanamo will ultimately protect American soldiers serving overseas. "Continued detention of prisoners at Guantanamo provides our enemies with a powerful propaganda weapon which they are using to recruit forces against us, undermining vital counterinsurgency efforts in Afghanistan and Iraq and impairing our ability to secure the goodwill of people in the Middle East and our allies around the world whose cooperation is necessary for the achievement of our military goals. Serving U.S. flag-rank officers have maintained that, because of its effectiveness in recruiting insurgent fighters into combat, Guantanamo is a key contributing factor to U.S. combat deaths in Iraq. Depriving the enemy of this weapon is important for our own security interests and will do much to demonstrate that the United States values adherence to the rule of law and humane treatment of enemy prisoners in our custody," they wrote.
Today's letter to Congress marks the latest step in a long campaign for these military leaders, who have spent years engaged in the effort to end the use of torture, close Guantanamo and bring those held there to justice in federal courts. In recent months, these retired military leaders have met with administration officials and participated in a series of events, including panels in Washington, DC, Florida and Michigan. This coming Thursday, they will host a discussion at William & Mary School of Law in Williamsburg, Virginia.
"We have watched with disappointment efforts to engender fear among the American people about the prospect of bringing suspected terrorists to the United States for trial," wrote the 32 retired military leaders in an open letter to Congress. "Our federal justice system has a proven track record of successfully prosecuting terrorists and incarcerating them safely in our prisons."
The retired military leaders are among those who stood with President Obama in the Oval Office as he signed Executive Orders ending the use of torture and ordering the closure of the Guantánamo detention facility.
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