Wednesday, November 18, 2009

A Critique of the Administration's Decision To Prosecute KSM In Federal Court

The decision to try Khalid Sheikh Mohammed (KSM) and his fellow terrorists in federal court was a political decision pure and simple. It was an attempt to rebuke the Bush Administration to engage in tribunals, even though quite a few of the detainees will still get tribunals and not trials. It creates significant problems and legal headaches particularly with the prosecution and handling of detainees who do not get access to federal court.

Andy McCarthy dissects Holder's testimony, and shows the Administration's efforts to hold a trial are dubious and worrisome. In addition, here are a few more reasons why the Administration is wrongly bifurcating the trial of detainees in either tribunals or federal court depending on the evidence against the detainees.

Eric Holder's conduct.
Attorney General Eric Holder's law firm played a role in delaying the operation military tribunals and have represented a bunch of the Gitmo detainees. Some of those lawyers at Covington and Burling are now at the DOJ advising on these very matters.

Legitimacy of Tribunals Versus Federal Court
So, if we're at war with these terrorists and a military tribunal was set up by Congress with the President's approval, why take these detainees out of military hands to put them into civilian courts? The military courts are better prepared to deal with national security matters, and in civilian courts, the detainees can act as their own attorneys and demand and gain access to sensitive information, which includes lists of unindicted coconspirators and others who might later become targets or result in shifting of assets with the assistance of others (such as the case of Lynne Stewart aiding and abetting Abdel Rahman contact his minions overseas in violation of federal law and agreements with prosecutors).

The tribunals have been tested by the courts and Congress and President Bush amended their operation to conform to US Supreme Court rulings; they were set to proceed and yet the Obama Administration finds them inadequate for dealing with Khalid Sheikh Mohammad even as he's more than willing to bring others into the tribuanls.

Protocols Determining Who Gets Tribunal
Here's the standards put forth by the Department of Justice in determining who gets trial in federal court and who gets a tribunal. The presumption is that a detainee gets federal court access, rather than a tribunal.

I find the splitting the difference - that Obama and Holder chose to hold some in tribunals and others in federal district court to be the most troubling aspect of this whole mess. It's one that can't be blamed on anyone but Obama and Holder.

Tribunals are a lawful and recognized court of law for purposes of dealing with these detainees - as per the Executive, Legislative, and Judicial branches. All have had input into their formation and operation. Multiple lawsuits and adjudications attest to that very fact, along with the Congressional record and laws enacting and amending the operation of the tribunals.

The Administration could have chosen to put all in federal court, but didn't.

Apparently the reason some get tribunals and others don't is based on whether they can get convictions in federal court. If they can, they go to federal court.

Again, if that's the case, why not try all in tribunals where the evidence is better safeguarded?

Differential Treatment.
If the tribunals were okay for some but not others, a lawyer representing a detainee who is forced into tribunals will claim that some right of theirs was violated because they didn't get a trial. That issue will have to work its way through the courts until it is decided by the Supreme Court, and thereafter the court/tribunal procedure will be adjusted accordingly.

Don't think that the defense teams aren't already working on just that scenario.

Just because the military and DOJ engaged in negotiation doesn't mean that the detainee has to sit back and accept a tribunal when they're seeing other detainees go into civil court. They too will claim access to the courts. It will further delay the operation of the tribunals (which may have been the point all along).

It reinforces my point; the tribunals should have been the only venue for the detainees, but this Administration sought to bring some them into federal court.

Additional Arguments Favoring Federal District Court Trial Fall Short.
Arguments that this prosecution of KSM is somehow similar to the prosecution of the 1993 WTC bombers ignores several key differences: 1) the terrorists in 1993 were captured by the FBI on US soil; 2) the Clinton Administration handled matters as a law enforcement matter; and 3) the US was not at war with al Qaeda (al Qaeda declared war on the US in 1998 and the US invaded Afghanistan in October 2001). The detainees being tried include those captured overseas and who have declared war against the United States, not mere common criminals.

National security issues are not protected nearly as well in federal court as they are in the tribunal system; and it's not just classified information that one has to be concerned with but lists of unindicted coconspirators and other information that might prove useful to al Qaeda.

Arguing that a tribunal can act as a backstop to a federal court decision (where a tribunal hears charges that were not included in the federal court indictments) that results in an acquittal or hung jury also falls short since the tribunal clearly was the more appropriate venue from the outset.

Appropriate Venue.
So, while I completely disagree with the Administration's decision to try some detainees in federal court and others in tribunals, the decision to try the 9/11 terrorists in the Southern District of New York (SDNY) is an appropriate venue. Of all the jurisdictions in the US, the SDNY is the best venue because it has dealt with the most terror prosecutions and has the institutional experience with the trials and the issues involved when dealing with domestic terror law enforcement operations.

The NYPD is the largest law enforcement agency in the nation and has significant experience in dealing with high profile security matters and New York City will be a top target for al Qaeda regardless of any trial or tribunal because of what the City and the nation represent. A trial under any circumstances will not change al Qaeda's mind one iota about their decision to engage in jihad against the US and the West.

There are three other possible venues; the Western District of Pennsylvania, the DC Federal District Court, and the Northern District of Virginia, but each doesn't have the institutional experience handling these kinds of trials nor the full complement of law enforcement that can be dedicated to security.

President Obama's Statements.
While some may argue that the detainees will not get a fair trial in New York City, one has to wonder how prejudicial statements by none other than President Obama could be construed by Khalid Sheikh Mohammad's defense team. After all, the President said that he fully expects Mohammad to be convicted and sentenced to death.

Obama: Alleged 9/11 Mastermind Will Be Executed
. Again, just a wee bit prejudicial and putting the cart before the horse? Where are the civil libertarians to get their knickers in a twist about a sitting President declaring the outcome before we've even settled into the jury selection and pre trial motion phase?

Does anyone else have a problem with that?

You should.

I want 'em found guilty and convicted based on whatever evidence is presented in the forum at hand. I want the sentencing to be appropriately handled by that same jury.

Yet, a constitutional law scholar such as President Obama is releasing statements that are deeply prejudicial? Even the President realized that his statements would be a problem and attempted to walk them back, but the damage is done since he put them out there.

Additional Political Considerations.
The problem is that the tribunals were excoriated and denounced roundly by the Left so Obama is pushing ahead with the trials, and some will get tribunals that may end up with still more lawsuits that affect their operation - up to and including invalidating the tribunals altogether because of the disparate treatment of some detainees.

That may have been the goal all along; knowing that political necessity required pushing detainees into the federal court system all while the reality is that many of the detainees could never be released and/or evidence against the detainees was insufficient to meet federal court standards.

Moreover, Obama and Holder admit that some detainees will never see the inside of a courtroom under either tribunal or trial because of evidenciary issues and that regardless of outcome, some will never be released (including KSM).

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