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Khalid Sheikh Mohammed Trial

Khalid Sheikh MohammedI was out of pocket for a few days visiting the folks in Alabama and missed commenting on a few stories.  Most notable among these was Friday’s announcement that five Guantanamo Bay detainees, including 9/11 mastermind Khalid Sheikh Mohammed, would be tried in New York.

This one’s a real head scratcher, in that I see no upside and lots of downside.

First, these men are not citizens of the United States.  Second, they’re accused war criminals.  They simply should not be tried in U.S. civilian courts.  Rather, they should either be held accountable in a Nuremberg-style international forum or treated as war criminals by a U.S. military tribunal under the mechanisms provided by Congress and approved by the Supreme Court.

Aside from the virtual certainty that the trial will devolve into a media circus, there’s an incredibly good chance that Mohammed and his comrades will go free.  The fact that KSM was repeatedly waterboarded would seem to taint any subsequent evidence, including his own confession.* [See update in footer]

As regular readers know, I oppose torture as a means of intelligence gathering on moral, legal, and practical grounds.  Further, I think the Bush administration went too far in refusing to grant even minimal due process rights to the Guantanimo detainees, who at very least were entitled to present evidence that they were falsely imprisoned because of mistaken identity.

We took the mantra that counterterrorism was a matter of war rather than law enforcement too far, overcorrecting for the previous policy which went too far in the other direction.  But the fact remains that KSM and the others  were held under rules based on their status as terrorists rather than ordinary criminals.    To pretend now that they are they equivalent of members of an inner city street gang borders on farce.

See also my follow-up, “Terrorism vs. Crime.”

_______________

* UPDATE:  I’ve clarified this point in subsequent posts but feel I should note here as well that this declaration is wildly incorrect.  It was not fear-mongering but rather a mistaken belief that the fact that KSM has been horribly mistreated and had his rights to due process, speedy trial, and counsel violated for years would lead to a judge throwing the charges out.   Alex Knapp, my colleague and an attorney, and others have assured me that the law does not work this way in practice.  Alex cites the case of Jose Padilla, the American citizen who was illegally held as an enemy combatant for years and nonetheless convicted.

Related Posts:

About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Bill H says:

    Second, they’re accused war criminals.

    What war? Where is there any war? Wars exist between nations. What nations do these criminals represent? There is no war. There are a bunch of criminals running around blowing things up and killing people. They want to be dignified and glorified as warriors, but they are not. They are psychopaths and criminals.

    It is a basic principle of federal law that criminal are tried at the location where the crime was committed.

    You want to give these thugs the glory and dignity they seek and call them warriors? I don’t. They are common criminals committing uncommonly large crimes.

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  2. [...] James Joyner provides a rebuttal to the notion that KSM should be tried, and it is notable for the fact that it contains actual arguments and not screaming and wailing and wet underpants. [...]

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  3. Triumph says:

    Rather, they should either be held accountable in a Nuremberg-style international forum

    Yeah, right. Send him to the ICC at The Hague.

    Let the UN take care of it, they’ve done such a great job so far!

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  4. PD Shaw says:

    As regular readers know, I oppose torture as a means of intelligence gathering on moral, legal, and practical grounds.

    Irrelevant. The American criminal system is opposed to coercion against suspects, not just torture, and coercion is largely adjudged by compliance with the Miranda warnings.

    I suspect the real problem here is not that the rules of evidence and criminal practice will be rigidly adhered to in a way that makes acquittal likely. It’s that the judge-made rules will be stretched to achieve the outcome of conviction, in the process changing the web of criminal defense protections to the detriment of all.

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  5. Triumph says:

    They are common criminals

    Thank you very much, John Kerry. Lets just give them a ticket and tell them not to do it again.

    The only punishment for this guy is to take him to Ground Zero, handcuff him to a fire hydrant and set loose a bunch of Michael Vick’s hungry pit bulls on him. Then let the rats finish him off.

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  6. Mark says:

    an incredibly good chance that Mohammed and his comrades will go free.

    Sorry, James, but this is non-sense. There’s no chance, much less an incredibly good chance.

    Even if, will all the help the justice system gives the government in this sort of trial, these murderers were somehow acquitted in federal court, by American jurors, the government can charge them with about a million other things. Or just send them back to whatever the new Guantanamo is.

    And of course there’s an upside.

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  7. PD Shaw says:

    The “we’re not at war with non state actors” argument doesn’t justify Obama’s position unless he too believes we’re not at war with al-Qaeda and its supports. I don’t believe he does.

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  8. Jay says:

    If you don’t think we can convict because the only evidence we have against them was obtained through torture then we have to let them go anyway because they may be innocent. If you have concluded that they’re not, based on evidence not tied to torture, then the DOJ should have little problem with getting a conviction while not even presenting evidence obtained through torture.

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  9. Jay says:

    @ Triumph: Did McVeigh get a ticket?

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  10. par4 says:

    First we have to try the last administration for treason,torture and war crimes then we might have the moral authority to try someone else.

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  11. Well, I can see this thread as prima facie evidence of the three ring circus that awaits us.

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  12. Dave Schuler says:

    Well, James, your post pretty well summarizes why I didn’t post on this subject here while you were gone. What is there to say?

    I thought about commenting on the politics. I was surprised at how politically risky a strategy this move is on the part of the Obama Administration. If KSM is acquitted, they’ll have proved how virtuous they are at the expense of antagonizing fence-sitters. If he’s acquitted and not released but held on some other pretext, they’ll aggravate anybody they might have been impressed at the move of trying KSM in a civilian court.

    If he’s convicted and sentenced to death, we’ll have the lengthy death penalty proceedings. If he’s convicted and not sentenced to death, for what crime would a death sentence be appropriate?

    Worst of all the trial will probably start next summer, at the height of campaign season for the 2010 Congressional elections. I genuinely don’t see how any political good will come of it.

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  13. JKB says:

    Mark… So your opinion is that Obama is simply creating American Show trials? Given that prospect, I’ll take the Bush administration policy any day. How long do you think they can keep serially charging someone before the political costs to Obama add up? Just send him to GTMO 2.0, so they’ll start civilly committing terrorists? Or maybe, it’ll just be we tried and failed but we’re keeping him locked up anyway?

    No the real risk to Obama is that KSM will be acquitted and ordered released. But where? What country will take him when none would take those other GITMO prisoners released? Will he simply be let go to walk onto the NYC streets?

    This will be a fun serial news story going into the 2010 and possibly the 2012 elections. The Justice Department, Obama’s Justice Department, will have to make a daily decisions to compromise intelligence sources or withdraw evidence. They’ll have to defend the Congressionally approved enhanced interrogation techniques or not attempt to enter evidence discovered by them into evidence.

    Let’s say he’s convicted. How long would this guy survive in a regular prison filled with…Americans? They may be criminals but that doesn’t mean the American prison population aren’t fond of America.

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  14. Kiril says:

    Look, you either believe in our system of justice, or you don’t. If you do, you look at ways to make it work. Otherwise, what does that say about your belief in America? That we have values only up to the point where they’re tested?
    Have any other terrorists we’ve tried in court been acquitted?
    (BTW, this is not meant in an “America, love it or leave it sense,” it’s more “think about the implications of what you’re saying.”)

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  15. Davebo says:

    To pretend now that they are they equivalent of members of an inner city street gang borders on farce.

    This is a bit silly James. We try jaywalkers and serial killers in the same criminal justice system.

    Does that mean a jaywalker is the equivalent of a serial killer?

    And let’s keep in mind KSM admitted his guilt before the “enhanced” techniques were applied and therefore I can see no reason why his confession would be inadmissible.

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  16. Mnemosyne says:

    Considering that KSM has been under indictment in the US since 1996, I find it hard to believe that there is absolutely no evidence against him except what we obtained through torture.

    And, frankly, calling him a “war criminal” rather than a common murderer is giving him way, way too much credit. He’s not a brave warrior jihadist fighting against American imperialism. He’s a cowardly mass murderer, no different than a Ted Bundy or a John Wayne Gacy. Why are you making him more important than he is?

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  17. Rick Almeida says:

    No upside to trying them, domestically, in NYC? Really?

    US rebounds from deadliest terrorist act in {insert time frame here}, loses its mind for a while, brings accused mastermind to justice with all protections of domestic law, tries and convicts same in exactly the location where the terrible crime was committed.

    This may be risky, it might even be foolish, but it has one heck of an upside.

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  18. Mithras says:

    Agree with Rick Almeida. We give these guys a fair trial, it proves they lost.

    And Bill H is correct: Calling them warriors cheapens warriors. They’re under arrest for murder. The Fifth and Sixth Amendments apply to all persons, not just citizens (and the Framers knew and intended the difference). Other nations, like Spain, Britain and India tried their terrorists in open court and convicted them. We’ll do the same or we won’t be able to claim to be a nation of laws.

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  19. Andy says:

    Being afraid to try terrorists in our criminal justice system is the clearest sign that the terrorists have actually won.

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  20. Lex says:

    [First, they're not citizens.]

    Irrelevant. Neither the Constitution nor statute draws a relevant distinction.

    [Second, they're accused war criminals.]

    But they’re ALSO accused of specific felonies under U.S. law. There’s every legal basis upon which to try them. That reduces the bases for any objections to issues of politics, practicality or symbolism.

    [It could devolve into a media circus.]

    So KSM gets to run his mouth a lot. So what? He’s going to look like a grandiose, delusional fool. He won’t be making any converts that way. To the contrary, a lot of people, if they think of him at all, will think, “Geez, what an idiot.”

    [He could go free because of the waterboarding.]

    If the only evidence against him were that obtained through torture, then he SHOULD go free. However, as other commenters have pointed out, he’d been under indictment for years before 9/11. There’s a wealth of untainted evidence against him, and if you’re worried about jury nullification, it’s not like KSM ranks anywhere near OJ Simpson in public esteem.

    [To pretend now that they are they equivalent of members of an inner city street gang borders on farce.]

    To pretend that they are such superevil supermen that we must scrap the Constitution to deal with them borders on panic.

    And while I personally favor the death penalty for his crimes, if executing him would make him a martyr, I could live with sticking him in the bottom of a SuperMax prison for the rest of his life so that the rest of the world need never hear from him or of him again.

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  21. Mithras says:

    Put another way: We’re defending our Constitution with our lives. These guys can (try to) kill us, but they can’t make us abandon our principles. Only we can do that, so let’s not.

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  22. Mithras says:

    And on the contention that the trial will be a circus: That’s on the judge. A good judge will shut that down quick. Just because you have a right to defend yourself doesn’t mean you can make speeches or pursue irrelevant lines of questioning. I believe that judges in New York have some experience with terrorism cases and difficult defendants and know how to handle them.

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  23. Zelsdorf Ragshaft III says:

    To argue the point of this matter here a waste of time. If KSM is not found guilty or this turns into a circus, which it must. Just watch the American people in the anger respond. Those of you who equate the acts of 9/11 to acts of criminality should be allowed to experience the terror those on board those doomed airplanes experienced. Correction to a post above. War does not require a nation or state for it to exist. Lions and Hyenas exist in a state of war, by definition.

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  24. Scott Swank says:

    James,

    I will bet you $5 that KSM does not go free. A note of warning — my last such wager was to Steve Vernon, and it was that we were not in for what he contended to be a “garden variety” recession.

    Scott

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  25. Xenos says:

    Such a shame that Charles Manson was able to stage such a media circus. If we had found a way to try and convict him in secret we would not have all these latter-day Mansonist terror groups all over the country.

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  26. Mnemosyne says:

    Those of you who equate the acts of 9/11 to acts of criminality should be allowed to experience the terror those on board those doomed airplanes experienced.

    Really, the victims on those airliners suffered more than, say, little Shaniya Davis did as she was raped and murdered? They suffered more than any of the victims of Anthony Sowell? No murder victims in the history of world have ever suffered more than the 9/11 victims? They were more innocent than a 5-year-old child whose mother sold her into prostitution?

    I’m all for punishing murderers, but let’s not get carried away here and pretend that no other murder victims have ever suffered and only the 9/11 victims deserve justice. The victims of 9/11 deserve exactly the same justice as every other murder victim — no more, but no less.

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  27. Social comments and analytics for this post…

    This post was mentioned on Twitter by drjjoyner: My better-late-than-never commentary on the Khalid Sheikh Mohammed farce. http://bit.ly/gxqiM

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  28. Mithras says:

    Lions and Hyenas exist in a state of war, by definition.

    I forget. Which kind of animal are we supposed to be?

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  29. G.A.Phillips says:

    First we have to try the last administration for treason,torture and war crimes then we might have the moral authority to try someone else.

    your ******* crazy!!! How about we Outlaw Abortion, and then try all who practice it and support it for crimes against humanity? but I’m sure people like you would only do this for dog fighting rings and those who watch them and the like>
    my apologies if you weren’t serious.

    And for the rest of you who think these terror leaders and terrorists are merely criminals, Take your crazy *** to Iraq, Afghanistan or Pakistan and join the police force, or become a prosecutor!!!!

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  30. G.A.Phillips says:

    I forget. Which kind of animal are we supposed to be?

    We are not animals, just stupid like them most of the time.

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  31. G.A.Phillips says:

    Being afraid to try terrorists in our criminal justice system is the clearest sign that the terrorists have actually won.

    Being afraid to call Islamic terrorist Islamic terrorists or the war on terror the war terror means they have achieved a large victory.

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  32. mike says:

    why is there a picture of Ron Jeremy with this post?

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  33. G.A.Phillips says:

    Put another way: We’re defending our Constitution with our lives. These guys can (try to) kill us, but they can’t make us abandon our principles. Only we can do that, so let’s not.

    lol, Harry, you want to take this one?

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  34. G.A.Phillips says:

    why is there a picture of Ron Jeremy with this post?

    LOL…..

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  35. Mnemosyne says:

    Being afraid to call Islamic terrorist Islamic terrorists or the war on terror the war terror means they have achieved a large victory.

    So instead of treating them as the common, cowardly murderers that they are, you think we should cater to their sense of self-importance and let them parade themselves in front of the world as “freedom fighters”?

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  36. JFM says:

    It’s so nice to see the wingbats soiling their pants over this.
    Did the blind sheik go free? Last I heard he and his cohorts got 240 years. Did McVeigh/Nichols? Kosinski? Did Saddam? ( in a courtroom , albeit not in this country) All this worry of an unlikely acquittal – are they so afraid of an acquittal here? What makes the case ironclad in a tribunal? My only concern is that the jury pool will be extremely tainted by location, not the fact of a trial itself.

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  37. [...] 16 November 2009 Rodney Dunning Leave a comment Go to comments At Outside the Beltway, James Joyner writes about the Obama administration’s decision to put several 9/11 terrorists on trial in a federal court in New York.  Joyner finds several [...]

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  38. PD Shaw says:

    Some predictions:First motion is to change venue. Preferably to Pakistan where the crime was committed and any witnesses to the crime would be present. Also, point out that KSM’s extradition was improper, and he should either be re-released to Pakistan or turned over the Pakistan government. Alternatively, present public opinion polls showing that a NYCity jury is so tainted that a fair trial is illusory, and propose moving the trial to San Francisco.

    Second motion is for violation of the speedy trial act. Claim custodial control by U.S. government for period longer than authorized.

    Third motion is for violation of Miranda rights. Request discovery of all information obtained about al-Qaeda and KSM to allow defense to prove that non-confessional evidence still originates from the branches of a tree poisoned by failure to read KSM his rights.

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  39. Mnemosyne says:

    Third motion is for violation of Miranda rights. Request discovery of all information obtained about al-Qaeda and KSM to allow defense to prove that non-confessional evidence still originates from the branches of a tree poisoned by failure to read KSM his rights.

    And that’s why Jose Padilla is a free man today: because his lawyers were able to successfully challenge his detention on the grounds that he was tortured.

    Oh, wait. Padilla got 17 years. Never mind.

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  40. Shade Tail says:

    Mr, Joyner, *thank you* for using real arguments instead of hysterical fear mongering. It is nice to know that some opponents of this move can be rational. That said:

    “First, these men are not citizens of the United States.”

    So? Our courts are perfectly capable of trying foreigners. We do that all the time.

    “Second, they’re accused war criminals.”

    As other commenters have pointed out, what war?

    “…There’s an incredibly good chance that Mohammed and his comrades will go free.”

    The chance of acquittal is a *good* thing, Mr. Joyner. The Constitution is pretty clear on that: the government has to prove its case before it is permitted to lock someone up. Doing anything else would turn our justice system into a kangaroo court more appropriate for a banana republic than for the U.S.

    “But the fact remains that KSM and the others were held under rules based on their status as terrorists rather than ordinary criminals.”

    Rules that were *illegal* and therefore have no legitimate standing with the law.

    “To pretend now that they are they equivalent of members of an inner city street gang borders on farce.”

    Legally, everyone is equal under the law. Again, so says the Constitution. And nowhere in the Constitution is there a clause that says, “The previous section(s) is/are null and void in the case of terrorists/foreigners/people Pres. Bush didn’t like.” Call that a farce if you want, but it remains the law.

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  41. PD Shaw says:

    Mnemosyne, I never said any of the motions would be granted. I doubt they would, but like Padilla, every such motion that is denied will be used to discredit the premise that the U.S. has the courage of it’s convictions here.

    KSM will not receive the same sort of justice as a traditional criminal. The question is whether, when all is said and done, the traditional criminals like Johnny Pothead find their own procedural protections eroded.

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  42. joe from Lowell says:

    I entered my actual email address with this comment, Mr. Joyner.

    If you think KSM is “very likely to go free,” you should put some money on that. I’ll take that action.

    What do you say, $100? Let’s make it $1000. I’ll bet you $1000 that he is convicted at this trial.

    Do you actually believe what you wrote? Put your money where your mouth is, because I think you’re fear-mongering.

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  43. gustopher says:

    As someone who was living in New York City on September 11th, 2001, and who knew people who worked in the WTC, and who ended up breathing the dust and smoke of ruined buildings and charred humans for weeks afterwards… Try the dirtbag in an open court.

    I’m not worried about acquittal on the evidence — there is evidence galore gathered before we captured him.

    I’m not worried about acquittal on a technicality — that would just show the system works (plus, I am sure we will find a technicality that prevents his release, such as trying him for another bunch of crimes…)

    I’m not worried that the torture committed by the US will come out — I think it should. It was done in our names, and we should have to face it.

    But New Yorkers deserve to see this man stand trial and pay for what he has done. It will be a media circus, but so what? Openness and transparency is worth it.

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  44. UlyssesUnbound says:

    ions and Hyenas exist in a state of war, by definition.

    Lions and hyenas are largely in a symbiotic (or possibly parasitic, since hyenas benefit more than lions) relationship. Lions kill game, eat what they want, leave. Hyenas come in and finish off the rest. That is unless you watch the Lion King, in which talking hyenas plot with disgruntled lions. Then yes, they are in a war.

    My point? I don’t really have one. But then again neither did you.

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  45. I’ve seen a number of conservative bloggers try this same line and one by one they’ve ended up looking foolish. I expected better of you, Joyner.

    There is no chance KSM will be acquitted. There’s no reason he shouldn’t be tried by a jury of New Yorkers. A ‘media circus’ implies competing points of view, controversy. There’s no competing point of view: every American wants this guy dead or in SuperMax.

    An uncharacteristically dumb post.

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  46. Ulysses:

    Are you implying that Ragshaft learns what little he knows from Disney animated features?

    Because if you’re not going to imply that, I’d like to.

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  47. anjin-san says:

    An uncharacteristically dumb post.

    Gotta play to that base. You know, the ones who think Plain is a rocket scientist…

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  48. anjin-san says:

    are they so afraid of an acquittal here?

    You betcha. Their whole worldview is based on fear.

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  49. PD Shaw says:

    Michael, of course there is a reason he shouldn’t be tried by a jury of New Yorkers. If KSM’s attorneys do a change of venue survey and establish that New York is a particularly hostile forum, then a judge will move the case. Now, if the judge feels external pressure to hold the case in New York anyway, then every future defendant that believes they face a hostile forum will be faced with the KSM standard.

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  50. G.A.Phillips says:

    So instead of treating them as the common, cowardly murderers that they are, you think we should cater to their sense of self-importance and let them parade themselves in front of the world as “freedom fighters”?

    lol, freedom fighters, I said Islamic terrorists,and what do freedom and Islam have in common? Oh I see, thats why we are not treating them as Muslim true believers, because they are, thats very sneaky, not to sure the rest of the Muslim true believers are going to let that kind of reverse psychology get past their indoctrination though.

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  51. I am not a lawyer, but I believe a change of venue would require KSM’s lawyers to demonstrate that some other NY venue is less likely to dislike the defendant.

    Not sure whether they can move it out of state, but it would certainly be entertaining to watch KSM’s lawyers scour the countryside looking for Americans more favorably disposed toward him.

    In any event they’d either convince a judge that Long Island or Omaha would be a nice change, or they wouldn’t. McVeigh’s trial was moved to Denver which I don’t believe did permanent damage to our system of justice.

    You know, our system isn’t really terribly fragile. We’ve been trying bad guys for a long, long time now.

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  52. PD Shaw says:

    michael, our system is not an entirely rationale one. One of the legs of it’s justification is that it’s historical relic from disputes between petty landowners and King John. Another justification is that it’s better that a guilty man go free, than an innocent man be wrongfully punished.

    If we were to design a principled approach to dealing with KSM from scratch, we wouldn’t use a jury system. We would use some form of inquisitorial system which would reach written findings and perhaps even answer some of the criticisms, something closer to 9/11 commission.

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  53. PD Shaw:

    What evidence do you have to suggest that KSM requires an entirely different justice system? This is nuts. To quote someone on another blog, he’s not Magneto.

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  54. Mnemosyne says:

    lol, freedom fighters, I said Islamic terrorists,and what do freedom and Islam have in common? Oh I see, thats why we are not treating them as Muslim true believers, because they are, thats very sneaky, not to sure the rest of the Muslim true believers are going to let that kind of reverse psychology get past their indoctrination though.

    You’re the one running around screaming about the scary scary terrorists and how they’re going to kill us all and WHY AREN’T WE ALL HAVING HYSTERICS LIKE YOU ARE!!???!!

    You know why we’re not having hysterics like you are? Because these guys aren’t a big deal. They’re jerks who managed to buy explosives. We’re not in a huge Clash Of Civilizations. We’re putting down gang violence that’s dressed up in pretty words about religion.

    If you want to waste your time running around in circles freaking out because the Mooslims are coming to get you, be my guest, but don’t expect rational people to take you any more seriously than if you said that space aliens keep abducting you.

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  55. G.A.Phillips says:

    every American wants this guy dead or in SuperMax.

    Hmmm…

    First we have to try the last administration for treason,torture and war crimes then we might have the moral authority to try someone else.

    Hmmm……

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  56. W. Kiernan says:

    I’m afraid that you’re probably right about the acquittal, in light of the excessive and grossly illegal torture the Bush Administration inflicted on this suspect. So I think we should start looking for other nations which did not participate in the torture to which we can extradite him. In the 9/11 massacre, KSM’s gang murdered lots and lots of foreigners and by now there should be plenty of reasonably untainted evidence to prove it. Let nations which did not disqualify themselves by descending to torture deal with this son of a bitch.

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  57. G.A.Phillips says:

    You’re the one running around screaming about the scary scary terrorists and how they’re going to kill us all and WHY AREN’T WE ALL HAVING HYSTERICS LIKE YOU ARE!!???!!

    You know why we’re not having hysterics like you are? Because these guys aren’t a big deal. They’re jerks who managed to buy explosives. We’re not in a huge Clash Of Civilizations. We’re putting down gang violence that’s dressed up in pretty words about religion.

    If you want to waste your time running around in circles freaking out because the Mooslims are coming to get you, be my guest, but don’t expect rational people to take you any more seriously than if you said that space aliens keep abducting you.

    lol,the Crypts, Bloods, and the Jihads?

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  58. PD Shaw says:

    What evidence do you have to suggest that KSM requires an entirely different justice system? This is nuts. To quote someone on another blog, he’s not Magneto.

    That’s not what I said. Ideally, we would craft a process that maximized fairness, openness, and a communication of American values. We don’t have that flexibility. We are governed by the dead hand of the Constitution. Look around, how many countries have jury trials, let alone place such importance on them as the U.S.? Many countries and their citizens do not find juries to be the highpoint of enlightenment.

    SIDENOTE: Juries have a lot of positives, particularly in the arena of credibility assessment and supplying common sense knowledge to the day-to-day events that technocrats and judges don’t experience. I think juries do a lot to further a sense of community among a heterogeneous crowd of global misfits that is America. But this trial they cannot do with any credibility.

    So which is it, Michael: (1) A jury trial in New York is the best way to give justice to the victims of 9/11, a conviction is certain, or (2) the rest of the world will look on this trial as the ideal of self-disinterested principle, and even if the verdict is acquittal America is a winner?

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  59. Freedom Fry says:

    there’s an incredibly good chance that Mohammed and his comrades will go free.

    There is no way that we are going to allow these guys to to “go free”. That’s just talk radio hype.

    Never.

    Gonna.

    Happen.

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  60. Herb says:

    Your second point has more validity than the first point. These would not be the first foreign nationals tried in a criminal court, indeed, not even the first foreign nationals tried in a criminal court for terrorism. Who cares if they’re not citizens? Their citizenship is irrelevant.

    The most valid concern is the concern that KSM’s torture will taint his prosecution, but that doesn’t mean “don’t proceed with the case.” It means “proceed with caution.”

    Doing the right thing is sometimes difficult, but it should be done anyway.

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  61. steve says:

    Many advocate that we should not leave Afghanistan because it will send a message of weakness to our enemies. Wouldn’t, by the same logic, abandoning our system of justice send a similar message? I think we benefit from believing in and following our own principles.

    Steve

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  62. anjin-san says:

    The most valid concern is the concern that KSM’s torture will taint his prosecution

    One more in a very long list of good reasons why we should not use torture…

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  63. The most valid concern is the concern that KSM’s torture will taint his prosecution

    I think the most pressing issue here is that we need to decide on a single definition of the word “taint.” Because none of us want to look at the photo above and then have to think of the word “taint.”

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  64. [...] Glenn Greenwald laments that only some detainees will be selected for prosecution.  James Joyner fails to see the upside of providing a civilian [...]

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  65. PD Shaw says:

    steve, we have more than one system of justice. It’s mentioned in the Fifth Amendment, among other places. Obama is choosing one system of justice over another.

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  66. markm says:

    There is no way that we are going to allow these guys to to “go free”. That’s just talk radio hype.

    Never.

    Gonna.

    Happen.

    So what’s the purpose of a trial?. How is this going to show the world anything??. If he’s found guilty, he will remain in detention. If he’s found not guilty, he will remain in detention.

    And who determines who will be tried under Military Tribunal and who goes through the regular justice system?. Who determines which particular rights these guys get in the Court of Law??. What is to keep KSM from representing himself?. Miranda rights?…waterboarding?….sounds like a mistrial from the word go.

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  67. G.A.Phillips says:

    I think the most pressing issue here is that we need to decide on a single definition of the word “taint.” Because none of us want to look at the photo above and then have to think of the word “taint.”

    lol, eeeuuuu, to late…

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  68. bmj says:

    there’s an incredibly good chance that Mohammed and his comrades will go free

    This is not really a credible worry. I really don’t think that this issue failed to occur to the administration, and if they thought there was any chance at all these guys would be released, the trials would not be taking place in this manner and setting.

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  69. davod says:

    The Mayor of New York city, and the Chief of Police, seem pretty comfortable with having the trials in New York city, and the media is able to find average looking New Yorkers who agree.

    I wonder how the average New Yorker will feel about civilian trials in New York after at least four years of sealed off streets and constant security checks.

    If I was a hypocrite I might be tempted to think this would b a good way to get Bloomberg booted at the next election.

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  70. tompain says:

    There is NOT an “incredibly good chance” they will go free. There is no chance. A critic (not I) might even say it is nothing but a show trial, with conviction a foregone conclusion.

    It’s true that they may not “deserve” a civilian trial but if we can try and convict them that way it’s fine with me. Holder is going to seek a death sentence. Ultimate outcome will be same as if it were a military proceeding.

    My only problem with it is that I don’t see why it needs to be held in downtown Manhattan. At a minimum you are incurring huge additional costs to provide security. It’s just asking unnecessarily for trouble.

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  71. Anderson says:

    Well, this thread moved fast.

    Bill is correct. Dumbass killers don’t get to become “war criminals” just because they announce they are “at war with America.” That’s their opinion. States declare war; al-Qaeda, whatever its pretensions, is not a state.

    (Leaving aside, if 9/11 were charged as a “war crime,” where does that leave Nagasaki?)

    Our federal courts may be the finest system of justice the world has ever seen. We should welcome the opportunity to spotlight it. I’m just sorry it didn’t happen sooner.

    … As for tainted evidence, KSM told al-Jazeera in 2002 that he was guilty. He denies that now, but let the jury decide whom they believe.

    From the same interview:

    “They say that you are terrorists,” I surprised myself by blurting out. Calm and serene, Ramzi just offered an inviting smile. Khalid answered: “They are right. That is what we do for a living.”

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  72. davod says:

    “Dumbass killers don’t get to become “war criminals” just because they announce they are “at war with America.” That’s their opinion. States declare war; al-Qaeda, whatever its pretensions, is not a state.”

    Why are States only allowed to declare war. Because the States said so?

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  73. CJH says:

    Stupid arguments. First, citizens or no they are still answerable to American law for criminal offences committed within US jurisdiction. Second, they are not ‘war criminals’. There was no war, and they were not acting as state-supported actors. They’re mass murderers, but not ‘war criminals’. And foreign nationals who commit crimes in the US are regularly tried in American courts and incarcerated in American prisons.

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  74. bmj says:

    A critic (not I) might even say it is nothing but a show trial, with conviction a foregone conclusion.

    I understand you aren’t espousing that view yourself, but I want to point out that it is severely misguided as a criticism. Whether a trial is fair has nothing to do with the chance that the defendant will be acquitted. It has to do with whether the rules of procedure that define a fair trial are followed. Similarly, a “show trial” is not one in which conviction is a foregone conclusion; rather, it is one in which the rules that define a fair trial are not followed. A lot of the critics of the administration in this case seem to be quite confused about this.

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  75. cbd says:

    davod:

    wonder how the average New Yorker will feel about civilian trials in New York after at least four years of sealed off streets and constant security checks.

    As an “average New Yorker” I’d be fine with it. I’d like nothing more than to see the scum tried and convicted right here in New York. I can deal with the inconvenience, it’ll be completely worth it.

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  76. guy says:

    Urban Moving Systems. A number of israelis who were driving around on 911 in vans full of bombs were quietly released, as were those from israel who came over to document the event and cheered when it happened. No one seems to mind that we let these people walk. Who were the real terrorists?

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  77. Mithras says:

    Alright, who let the truther in?

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  78. Lex says:

    One other thought about this “media circus” deal: This trial will be in federal court, and no federal court allows television cameras in the courtroom. I personally think that’s bad policy, but in this case it undercuts the fears of a “media circus” pretty dramatically and also makes clear that KSM et al. will NOT be getting an uncensored channel to shout their blather to the public.

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  79. [...] UPDATE #2: James Joyner [...]

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  80. DSimon64 says:

    “an incredibly good chance that Mohammed and his comrades will go free.”

    Sorry, James, but that is an incredibly ignorant thing to say. Unlike state prosecutors (which I am), who take difficult cases to trial all the time, US Attorneys are the most risk-averse creatures you will EVER meet! A US Attorney NEVER brings a case to court unless he is absolutely certain he can win. IF the Justice Department believed that their evidence would be insufficient to gain a conviction, they would NEVER have made the decision to try the case in NYC. The fact that they HAVE made this decision means, to me, that they have enough evidence.

    When the lethal injection is pressed into KSM’s arm, and we watch him squirm in his death throes, then FINALLY there will be justivce for 9/11. Something that has been lacking for the past 8 years. I say, THANK GOD we finally have a President with the courage of his convictions.

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