The administration’s legal KSM misstep

Word has come from the Obama administration that Khalid Sheikh Mohammed and four other Islamic terrorists will be tried in federal court in New York. Predictably, the ACLU and many other left-liberal individuals and organizations have applauded the decision, while many conservatives have denounced it.

I see the decision as highly problematic in a number of ways, but not ultimately as disastrous or threatening. There are several issues here: The evidence to be used at the trial; the security of the facility and any facility to which the terrorists will be transferred later; threats to the prosecutors, witnesses, jurors, and judge; the likelihood of suitable punishment; what to do with any that are found not guilty; the use of the trial by the defendants as a political tool; the use of the proceeding by the administration for self-serving political purposes rather than a means to justice; what kind of precedent is set by the use of this procedure for other cases.

One of the most complex issues is the use of evidence. One problem is that the rules of evidence in federal court are in some instances different from the rules for evidence that can be used in front of the military commissions. Following the 2008 Boumediene decision, lower federal courts are working out constitutional tests for the introduction of evidence in habeas corpus cases and, by implication, for military commissions. However, those cases involve the issue of detention and status as enemy combatants, not the more “criminal” matter of trying such people for the unlawful nature of their conduct. Still there are somewhat more relaxed evidentiary rules under the Military Commissions Act that can be used in the military tribunals, but that cannot be used in the regular civilian courts. Some of the evidence may have been gathered in combat conditions or by foreign governments that do not observe the niceties of American law enforcement. On the plus side, evidence gathered by foreign sources overseas is not subject to constitutional search and seaizure restrictions of the Fourth Amendment. Other evidence that will be used may be the result of waterboarding and other “enhanced interrogation techniques,” some of which procedures will be presented as “torture.” The admission of such evidence is easier in the military commissions than the civil courts. That evidence is likely to be challenged strongly. Some of the evidence may be national security-related. It is possible that such evidence can be turned over to the defendants under various protective restrictions or introduced in court by closing the trial or at least conducting the examination out of the courtroom in camera. However, there are limits to the extent this can be done. Defendants will demand access to records and witnesses some of which ar least will not escape the public eye. The military commissions can better protect against defense abuses of this process.

Keeping all of that in mind, one has to assume for the moment that the administration is well aware of these problems and has selected these defendants for trial because they have plenty of other evidence for a conviction. On the other side, that still may not prevent defendants’ fishing expeditions and demands for more problematic evidence. That is especially so, as the defense attorneys that will flock to defend the terrorists in order to make names for themselves will be especially eager to see these defendants walk and to score ideological points against the United States and, especially, against the Bush administration.

A related problem is whether the lawyers themselves will be security threats. When the suspects for the 1993 World Trade Center bombing were tried in federal district court, Lynne Stewart (one of the attorneys for the “blind sheikh”) conspired to allow the transfer of information from her client to other suspected terrorists> She was convicted and disbarred, though she is appealing the conviction. By the way, information turned over to the attorneys for the defendants in that bombing trial included lists of people the government was watching. Among those listed was Osama bin Laden, who, if he didn’t know it before, was then on notice that he was being watched. There is serious danger that the information that comes out during this process will provide enemy nations and other terrorists with valuable intelligence.

There are also concerns about the security of the detention facility, the courthouse, and any facility to which they will be transferred. That is a legitimate concern. I would think that the government will secure these facilities adequately to keep the terrorists confined, but that does not mean that the facilities might not still be targets for terrorist action. Using the facilities at Guantanamo, including the new but unused courtroom there, would provide security that the federal civilian facilities cannot achieve. That, after all, was the point of using Guantanamo.

Threats to prosecutors, witnesses, jurors, and the judge will be real and concrete issues that would not exist were the proceedings held before a Guantanamo military commission. The identities of these people will be known. They will be likely targets. So, if one is looking at procedural matters and security issues, the military commission process is much preferable, as the administration has admitted in holding some of the Guantanamo detainees to be tried by military commissions there.

While the move of these trials from the military to the civilian system is problematic from the perspective of the presentation of evidence and protection of national security and of the participants, I am not worried that the federal court process will result in less likelihood of conviction or a lesser imposition of punishment. Assuming there are no evidentiary problems (and, as I wrote, there might be), a civilian jury in New York is very unlikely to acquit these defendants, though, depending on the charges, there might be acquittals of some of the defendants on some of the charges. Khalid Sheikh Mohammed will be convicted of the most severe counts. Both the jury and the judge will also seek to show their toughness and sentence him, and perhaps some others, to death. The military commissions, on the other hand, will bend over backwards to avoid harshness. There hasn’t been a death penalty imposed by a military court in almost a half century, though one suspects that KSM would end that streak.

If any of the defendants were acquitted, what to do with them would be a serious problem. One of the perceived advantages of Guantanamo, from the Bush administration’s point of view, was that the base was geographically close for purposes of secure control over the detainees, but also isolated from the general citizenry and, to prevent full application of constitutional rights to these detainees, outside the sovereignty of the U.S. As long as the detainees are at Guantanamo, outside the general territorial sovereignty of the United States, there is a strong argument that they can be kept there pending return to another country. They have no right to enter the U.S. Of course, if they are to be detained there as enemy combatants until the cessation of hostilities, that, too, can be done. But once they are brought into the U.S., they have greater rights before they can be removed to another country. Moreover, if they are to be detained further as simple enemy combatants, not criminals, they might have greater rights to be detained in the U.S. itself rather than returned to Guantanamo. And, if no other country is willing to take them, must they then be released into the U.S.? While there are no one hundred percent clear answers to those questions, the more someone, even an alien, has been given access to the U.S., the greater claim he has to at least some constitutional protections that his lawyer is sure to press.

Allahpundit at Hot Air has a good discussion of these points. He makes the argument that the trial’s outcome, oddly, may be a foregone conclusion. It will be almost impossible to get a fair trial for the terrorists in the commonly-accepted view of that term. Whatever happens in the courtroom, the administration cannot afford politically to let KSM go, so they will find some reason to incarcerate him. One option: Send him to Pakistan for trial about his activities there. But this makes a farce of the administration’s claim that a federal court trial is more consistent with the rule of law, and it makes the trial itself a sham.

In another post, I’m going to address the more political issues from this move.

Many others have expressed their thoughts; Sarah Palin worries about a failure to convict KSM. I disagree with that one. Former federal district court judge and George W. Bush Attorney General Michael Mukasey worries about the danger from the disclosure of evidence and about the September 10 attitude displayed by treating KSM as an ordinary criminal. I think that is part of what Obama is trying to do to placate the Left. Mukasey also worries about the ability to house convicted high-profile terrorists in American prisons without having them become focal points of attention with the chance to do mischief among the prison population. Mukasey: “It would take a whole lot more credulousness than I have available to be optimistic about the outcome of this latest experiment.” Professor John Yoo makes some salient observations about the terrorists’ likely strategy to demand information and tie up the courts by turning this into a political circus. Like Judge Mukasey, he believes that this can provide al Qaeda with extremely useful intelligence and hurt future American intelligence gathering and military operations. I agree with Yoo that these are the biggest dangers.

Via Hot Air, former New York mayor Rudy Giuliani tees off on the Obama administration’s decision.

Andy McCarthy was a federal prosecutor who prosecuted the 1993 World Trade Center bomber. In his book about that bombing, he describes how the terrorists, who hated everything about the United States, loved the criminal justice system. As they planned their attack, they knew how to exploit that system:

“Choosing America as an enemy was not, however, without its advantages.  Amir Abdelgani advised his confederates that, if arrested, ‘Nobody talk until seeing his lawyer.’ 

‘You understand,’ Siddig echoed.  ‘Tell them, “I don’t know.  I’m not talking to you.  Bring my lawyer.”  Never talk to them.  Not a word. “My lawyer”—that’s it!  That’s what’s so beautiful about America.’”

In similar vein, when Khalid Sheikh Mohammed was captured in Pakistan and turned over to the Americans, he refused to talk. Rather, his immediate demand is said to have been to take him to New York, as he wanted to talk to his lawyer. Courtesy of Eric Holder and Barack Obama, he has got his wish.