KSM Trial Could Erode Civil Liberties
The Obama administration’s plan to try Khalid Sheikh Mohammed and his co-conspirators as criminals rather than military prisoners has the potential to send a powerful message about the rule of law in our democracy. It could offer an opportunity for Americans — not to mention the rest of the world — to rethink the nature of terrorism and witness the resiliency of our existing democratic institutions in spite of its threat.
The ACLU questions Obama
It’s not surprising, then, that those who put a premium on civil liberties and human rights would be angry and dispirited by reports that the Obama administration, in the face of searing political pressure, is poised to abandon its plan. The ACLU pushed back against that possibility with a full-page ad in Sunday’s New York Times, showing President Obama’s face morphing into his predecessor’s. “What will it be Mr. President?” the ad asks. “Change or more of the Same?”
Clearly a trial in federal court would represent a high-profile break with the Bush administration, which was willing to sacrifice civil liberties on the altar of national security in the aftermath of 9/11. But for all its symbolic weight, in substance, such a trial also has the potential to degrade American’s civil rights and do violence to the rule of law.
Advocates for a civilian trial rightly point out that our criminal justice system has demonstrated it can handle international terrorism. Federal prosecutors have brought 828 terrorism cases from 2001 to 2009, according to a report from the Center on Law and Security at New York University Law School. Five-hundred-and-twenty-three of 593 resolved cases yielded convictions, either by verdict or by a guilty plea. Trials are still pending in 235 cases. The report concludes that, despite hurdles posed by classified information and constitutional issues, “federal courts are capable of trying alleged terrorists and securing high rates of conviction.”
But Khalid Sheikh Mohammed is not your average terrorism defendant. He’s been in in legal black holes at secret CIA prisons abroad and Guantanamo Bay for years. More important are allegations of torture; a Justice Department memo stated he was waterboarded an astonishing 183 times.
KSM’s defense attorneys would file a raft of pre-trial motions based on the circumstances of his capture and detention, former public defender David Feige argues in a provocative Slate piece. Counsel would claim KSM’s right to a speedy trial was violated, statements obtained under torture should be suppressed, and he can’t get a fair trial in any U.S. courtroom, among dozens of other legal challenges. And Feige says that the trial judge would inevitably deny these motions or strip them of any significant impact, thus generating “a tragic flood of bad law.”
At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent. The judicial refusal to consider KSM’s years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM’s initial torture from his subsequent “clean team” statements will provide a blueprint for the government, giving them the prize they’ve been after all this time—a legal way both to torture and to prosecute.
Attorney General Eric Holder essentially guaranteed KSM’s conviction in a Senate oversight hearing last Novemer. Holder offered less clarity when questioned about what would happen if the trial ended in an acquittal. While assuring senators that KSM would not be walking the streets in America, Holder seemed to hold out the possibility that the government would simply continue to hold him indefinitely if prosecutors failed to win a conviction. In that highly unlikely scenario, a celebrated display of America’s rule of law would be reduced to nothing more than a failed show trial.
The Obama administration hasn’t made its final decision. Supposedly it’s looking to leverage flip-flopping to a military trial to win Republican support for closing Gitmo, although Greg Sargent reports that GOP leadership isn’t interested in budging on that issue. Whether or not the administration bends and settles on a military trial, a lower profile Gitmo prisoner may test Feige’s theory about case law repercussions. A federal judge in New York is considering a motion to dismiss the charges against terrorism suspect Ahmed Khalfan Ghailani because the five years he’s spent in American custody (CIA black sites and Gitmo, like KSM) violated his right to a speedy trial. Ghailani has claimed he was interrogated via “cruel ‘enhanced interrogation techniques’ ” and that he was not afforded the right to an attorney or the right to remain silent. It’s uncertain if his defense attorneys will file motions based on those allegations — and what their denial could mean for the rest of us.
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I think this is too sensitive an issue to be trading for political points for an issue that apparently won’t be resolved soon. http://bit.ly/9Owhf6
Two points to remember:
First, this would not be a ‘break’ from prior policy. Only three “terrorists” have been convicted by military commissions since 9/11.
Second, Mohammed has ADMITTED, and is PROUD, of his involvement. He will essentially be pleading guilty. Sure, his confession obtained during duress of torture might be inadmissible in a civilian trial but the rest would be.
Let me offer a little clarification re: Amanda’s points.
(a) No Guantanamo detainee has yet been tried in an Article III court, and last October Obama signed the Military Commissions Act of 2009, which tweaked but basically endorsed the existing military tribunal system. It’s true that there are at least two low-profile Gitmo detainees slated for civilian court. Such a trial for the infamous KSM, however, would carry much more symbolic heft of breaking with the practice of using military tribunals for Gitmo prisoners.
(b) While KSM may essentially be pleading guilty, Feige’s argument is that the damage would come via denied or denuded pretrial motions, so the eventual verdict is beside the point.
If only we could get these terrorist to smoke some weed near a middle school.
First, Feige says despite the problems, a federal trial is still the best possible answer.
Second, plenty of high-profile AND guantanamo detainees have been prosecuted in federal courtrooms.
The military commissions act amended the commission created several years before by Bush — it is not the traditional adjudication system used by the U.S. Military with JAGs, etc — therefore using the commissions for KSM would be a break with precedent, cases in point:
*Zacharias Moussaoui, the would-be 20th hijacker, was tried in a federal court in Virginia in 2006.
*Jose Padilla was held at Guantanamo for 3.5 years before he was tried in a federal courtroom in Florida in 2007.
*John Walker Lindh was captured in Afghanistan and tried in a federal courtroom.
Habeas corpus appeals of Belkacem Bensayah, Mohammed Al-Adahi and countless other Guantanamo detainees have been considered by the federal courts.
Great follow-up on this issue today in the NYT, about how using the commissions will hamstrung efforts to try terrorists.
http://www.nytimes.com/2010/03/09/us/politics/09terror.html?hp
Actually, I think Padilla was in custody for 3.5 years but only at GB a millisecond, that media report I cited is incorrect (trying to check now).
Either way, Guantanamo detainees haven’t really gotten trials either place yet, federal or military, because we just keep them there without a trial.
The whole indefinite detention w/o trial thing went pear-shaped a long time ago. What’s even sketchier is that there’s a subgroup of prisoners who can’t be prosecuted but the government considers too dangerous to release. In his National Archives speech last year, Obama called this dilemma “the toughest single issue that we will face.”
In response to another comment. See in context »[...] KSM Trial Could Erode Civil Liberties – Robert Iafolla – Civilian … [...]
Before we get into specifics on KSM and his pending trial, I think we ought to ask a few questions. Do American constitutional rights apply to non-Americans? Do citizens of other nations have a “right to a speedy trial” in America? What does it mean to be an American citizen if the answer to those questions are yes? It kinda makes you wonder just who is eroding these, so called, civil liberties.
Bill: As I understand it, the basic idea is that when somebody is physically within a certain jurisdiction, then the fundamental legal rights of that jurisdiction attach to that person. This makes sense on a logical level, right? If a Californian was charged in a Virginia state court they wouldn’t be afforded the rights that apply in California but rather Virginia, or if an American was charged in Italy, ect… I’m not well versed in the case law in this area, but in some instances this has applied beyond fundamental rights. In a 1982 case called Plyler v. Doe, for example, the Supreme Court found that the 14th Amendment prevents states from discriminating against illegal immigrant children when it comes to the provision of public education.
You ask what it to be an American citizen if Constitutional protections apply to non-citizens. That’s a thorny, existential question that’s above my pay grade. I would say that, from a purely functional standpoint, the alternative in a criminal justice setting seems untenable. Or at least a serious disincentive to the tourism industry. (“Come visit magnificent New York! But if you’re falsely accused of a crime, don’t expect the right to a lawyer, a phone call, or anything else!”)
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