KSM and his four co-defendants. (AP Photos)
As has been said before, most public officials and commentators shudder at the idea of bringing Khalid Sheikh Mohammed and four cohorts to trial before a civilian judge and jury in New York City.
Yes, some Democratic Senators (among them Pat Leahy, D-VT, Chairman of Judiciary) approve of the idea. But New York's Governor David Patterson (D) does not, according to the New York Daily News.
(The official site of Senator Robert Menendez, D-NJ, won't load and commonly causes web-browser freeze-out; searches for other statements by him produce no results. Senator Frank R. Lautenberg (D-NJ) has not issued any press releases.)
The White House, of course, did not waste time in criticizing former New York Major Rudy Giuliani for his criticism of the New York trial decision. They actually called him "two-faced," saying that he didn't object very loudly when the trial of Zacharias Moussaoui, the "twentieth hijacker" who missed his assigned flight, ended in a conviction but not a death sentence.
US Attorney General Holder is said to be preparing to ask for death sentences for the five defendants. Senator Charles Schumer (D-NY) agrees with that, and points out that all five have previously asked to be executed by the military, in order to claim the status of "martyrs."
The big question remains: Will those defendants actually go to execution? Will they even be convicted? More than that, what does KSM really want?
Daily News columnist Mike Lupica thinks he knows. KSM wants a stage to make a speech on, and Lupica doesn't think he should have it. He would not likely have as great a stage as he had at his previous trial, before a military tribunal. He acted as his own attorney then; he might not be allowed that privilege now, because this is a death-penalty case.
More to the point, prosecuting this case will prove very difficult, as at least two legal experts have stated. The defense could move for a directed verdict of acquittal, merely on the basis of KSM's treatment at the hands of the military: he was one of three detainees subject to the interrogation technique called "waterboarding." Even if that motion fails, anything he said before he received that treatment would be inadmissible as evidence. The question remains whether the government would have enough evidence that was not obtained under duress or otherwise tainted.
Mr. Holder said over the weekend that he had received information, that had not been made public, that indicated that the prosecution team would have sufficient evidence to obtain a conviction. Presumably one must accept his word on that. Given the other occasions in which the Obama administration had abruptly changed its mind and refused to stand by some of its earlier statements, accepting anything from any administration official on faith becomes problematic, at best.
The trial is not likely to be held for another year or two--and still might not be held in New York City, if a judge grants a motion for a change of venue. If the venue is changed, then KSM's attorneys might attempt to seat a jury that will simply "nullify" his deeds and acquit him anyway, as the jury did in People v. O. J. Simpson in 1995. Of course, KSM could make jury nullification impossible by making vulgar boasts of his deeds at inopportune moments, a thing that would be almost in keeping with the circumstances of his capture (with a laptop computer holding a clear-text file containing multiple passwords) and his performance before the military tribunal. But equally likely, he'll play it smart this time, according to the Muslim concept of taquiyya, or strategic lying to benefit the faith. Only time will tell.
Update: Judge Andrew Napolitano, appearing tonight on The O'Reilly Factor, has just confirmed my initial opinion, though he probably doesn't realize it. He says that, because Congress never declared that a state of war exists between the United States and Osama bin Laden, a baron sole, and all of his known or to-be-discovered associates, any such associate that falls into American hands must be tried as a civilian, according to American criminal statutes, and not by a military tribunal, according to the rules of war. The learned Judge might be limiting himself to conventional thinking, but he never said that Congress could not declare war against an individual or a syndicate, but only that they did not so declare.
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Comments
There is nothing that says we have to give a foreign terroists a civilian trial with the right to an attorney, a jury of their peers, etc. Nothing. As far as you statement about Judge Napalitano, that argument makes absolutely no sense, as Holder is trying other terroists in Military courts, so that right there kills the logic that they HAVE to be tried in a civilian court.
Bob: I'll grant you that AG Holder has behaved badly, with ridiculous inconsistency. Holder is doing exactly as he pleases, when he pleases, without regard to the Constitution, law, or precedent. That means that neither you nor I can predicate an analysis of Constitutional law on the actions of an Eric Holder.
Indeed, it's enough to make some of us think that Holder wants this guy gotten off, for reasons that we can only guess at.
Judge Napolitano, however, doesn't allow himself the luxury of inconsistent analysis. As he sees it, you try someone as an enemy combatant, only after you have declared war against either the man or his boss or his government. That was Bush's failing: he should have gotten a declaration of war when Congress was best inclined to give it to him.
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