Trying Khalid Sheik Mohammed and the other accused 9/11 plotters in civilian courts would be a true man-caused disaster with national security, propaganda and public safety dimensions.
Aliens charged and tried in U.S. civilian courts receive enlarged protections, which could lead to the disclosure of valuable intelligence about our counterterrorism tactics, sources and methods. Civilian defendants have Brady Rights, which means that the prosecution must disclose evidence it has which is material to either guilt or punishment, including classified information.
Civilian defendants also have the right to represent themselves. But the statute designed to protect classified information, the Classified Information Procedures Act, does not address the situation in which a defendant exercises that right. Normally, defense counsel with security clearances participate in a pre-trial CIPA hearing, in which the court determines what can be revealed without compromising security.
The terrorist who represents himself can never participate in such a hearing, so the stage is set for post-trial objections. Only one of the defendants needs to represent himself to trigger this unworkable scenario.
Proponents of civilian trials would leave it to prosecutors and judges to craft safeguards in individual cases. But even the best prosecutors cannot think of everything, and judges cannot fully control what happens in real time in open court. They are by necessity operating on the brink of tragic error. By using civilian courts, we are giving away information and taking risks that we should not.
Next, a civilian trial would give Khalid Sheik Mohammed a grand stage to broadcast anti-American propaganda that will inspire and embolden current and future generations of terrorists.
The suggestion that using civilian trials would serve as a symbol of the strength of our justice system is misplaced. Reality is more important than symbolism, and in reality, it is a no-win situation. The defendants already have been pre-judged by President Barack Obama and Attorney General Eric Holder, who has said that "failure is not an option."
Yet in the real world, failure is always possible. If the prosecutors lose, the U.S. will hold the defendants indefinitely as alien unprivileged enemy belligerents. Imagine how that would be presented in other countries.
If the prosecution succeeds, recall that past successes did nothing to impress Khalid Sheik Mohammed or bin Laden.
The very notion that we can apply moral suasion to people who behead their captives and broadcast it on the Internet is not serious.
Finally, a civilian trial will be a flash point for attacks where it is held, creating a public safety nightmare and imposing enormous unnecessary economic burdens. That is why the trial should be held at a remote, secure military base. Guantanamo would be ideal.
The tragedy is that this disaster would be self-inflicted, because there is no need to hold a civilian trial. In their current form, military commissions have been approved by the new Congress and the courts, and will be used by the administration for other accused terrorists.
Something can be done. A bipartisan group of six senators has proposed legislation to deny funding for a civilian trial. Alternatively, Congress controls the jurisdiction of the district courts, and could strip them of jurisdiction over these defendants in a one-sentence act.
If the Obama administration does not reverse course, Congress should force its hand.
First published in the Albany Times Union newspaper: Thursday, March 18, 2010
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Inside a 9/11 Mastermind's Interrogation - Series - NYTimes.com
6. Criminal justice systems haven't successfully deterred others from doing bad things anywhere. I doubt if any determined criminals or terrorists were ever morally suaded before or after some other guy got tried. Most bad guys figure they won't get caught and remain bad cuz that's the way they are. I'm surprised as a Lawyer Mr Vitkowsky seems unaware of this rather basic fact.
7. To quote Dickens - are there no prisons? Aren't there places in the US that can be made pretty secure.
Anybody broken into supermax of late - and couldn't things be televised to show the relative transparency of the legal system in the USA .
Truth be told whether KSM is tried in open court tried elsewhere in secrecy or simply vanishes in a New Jersey landfill has no bearing at all on the ability of terrorists to do bad things.
The best defence for survival of a democracy is to practice what it claims to believe in - if a few evil fanatics can cause a country to abandon it's rule of law out of fear some revelations might be embarrassing - then the bad guys have already won.
my "skepti-sense" begins to tingle. A quick check on Wiki reveals organization membership of Steve Forbes, Joe Lieberman, Newt Gingrich & the ubiquitous Bill Kristol. Now that we know some of the players lets examine the argument. The most powerful alleged democracy in the world must try KSM in secret to prevent disaster because:
1. The US may be required to reveal staled dated intelligence information and unpleasant well known facts that they employed torture - the jaded world will no doubt be shocked. Perhaps the torturers could be even be charged. But not if there was a secret trial as done in most dictatorships.
2. The accused might represent themselves - and our legal system is so inept they couldn't possibly make rulings on security issues if this happened.
3. There might be post trial objections - yeah there used to be right to appeal, most free countries much less powerful than the USA still have this process.
4. The accused might - say something. All my life the USA faced a powerful country with enough nuclear weapons to obliterate the world - and we should quake because some dysfunctional may say something - how the mighty have fallen.
5. Failure is always possible - true - and Dick Chaney could theoretically become a Buddhist monk. The latter may have a higher probability.
PART ONE
No, counselor, too much has been done to sweep this chapter under the rug of history. Your "Bogey Man" predictions of calamity notwithstanding, the courts have done a far better job in handling the misdeeds of terrorists than the Military Monkey Trials. I vote to give the courts the opportunity again to serve us as they have for hundreds of years.
"The 2009 Report presents statistical data on 119 international terrorism cases filed since 9/11 in which a total of 289 defendants were charged in the criminal justice system. Of the 214 defendants whose cases were resolved as of June 2, 2009, 195 were convicted either by verdict or by a guilty plea. This is a conviction rate of 91.121%, a slight increase over the 90.625% conviction rate reported in May of 2008."
"This update vindicates the original report's conclusion that the criminal justice system continues successfully to surmount a wide array of novel dilemmas presented by these difficult cases within the parameters of time-honored rules for fair and efficient trials," said Judge Patricia Wald, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit. "The proven success of the efforts by the federal courts compares favorably with the rocky course alternative systems such as the military commissions have taken and the formidable conceptual and practical problems that would be posed by dramatic departures such as the establishment of a preventive detention scheme."
http://www.humanrightsfirst.org/us_law/prosecute/
Our judicial system has the reputation to hold the trials, we protect ourselves from criticism and prejudice, and the justice and/or punishment would have honor/
But for all our riding roughshod over our own values, so many who have led us astray from our better selves remain deeply afraid. Afraid of a ragtag criminal band of would-be destroyers of all we hold dear. Afraid of what they say, as if saying is equivalent to doing. But we've tried worse and imprisoned folks more dangerous by far than anybody Bin Laden ever recruited-- Nazi spies and saboteurs, trained in espionage by experts, entirely willing to die for their cause and connected to a world power of the first magnitude.
Maybe that's why we've come to call folks my parents' age 'The Greatest Generation.' They fought a more powerful enemy who was literally thousands of times at least more destructive and able, and mostly, they did it while observing the Geneva Convention. We held thousands of POW's from Nazi Germany here, and we prosecuted spies according to law, not according to the size of our own fearfulness.
We used to be better than what we have become. More fear won't fix it. Let's have trials in American court. Let the sunshine in.
Who are the cowards who seek to deny this mere mortal his day in the people court?