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Oakminster
11-13-2009, 08:28 PM
WASHINGTON – In the biggest trial for the age of terrorism, the professed 9/11 mastermind and four alleged henchmen will be hauled before a civilian court on American soil, barely a thousand yards from the site of the World Trade Center's twin towers they are accused of destroying.

AP story on Yahoo (http://news.yahoo.com/s/ap/20091113/ap_on_go_ca_st_pe/us_guantanamo_us_trial)

Trial of the Century. Oughta be one helluva show.

To open the debate, is it possible to seat an impartial jury in New York City? I know if I was defending, I'd want to try it somewhere else. Maybe Hawaii.

CoolHandCox
11-13-2009, 08:43 PM
To open the debate, is it possible to seat an impartial jury in New York City? I know if I was defending, I'd want to try it somewhere else. Maybe Hawaii.

My opinion, probably not possible to seat an impartial jury in NYC; but, could you anywhere though for the "mastermind" of 9/11? They will of course ask for a change of venue, it will be denied. Such is life. You'd have to weigh whether you could actually get an impartial jury versus letting the people of NYC getting finality themselves. The people of NY should be the ones to try them. It generally affected them most (of course, that's the Defendant's whole argument).

For comparison, the same scenario will happen in Texas with Major Hassan. His change of venue will likely be denied as well for the same reasons.

On the other hand, Timothy McVeigh's change of venue was granted and moved from Oklahoma to Colorado. Hmmmm....

Diogenes the Cynic
11-13-2009, 08:47 PM
I applaud the decision to to finally act like Americans and give them real trials. Getting an impartial jury will be problematic, to say the least, but I don't think any other part of the country would yield any better chances.

I think the prosecution could have some real problems presenting evidence in that a lot of it was obtained from Gitmo prisoners who would have to be brought in from various other prisons in other parts of the world, and cross examined, and then might still clam up or retarct their testimony on the stand, especially the ones who were tortured.

I believe Khalid Mohammed was also waterboarded more than 100 times, and anything obtained by those means would be impermissible.

On the other hand, evidence doesn't matter, since any jury they face will be a hanging jury.

I think some of the sky is falling demagoguery from the right is hilarious, especially their apparent fear that these guys have mystical superpowers, and that they can slip through walls, or otherwise be able to escape and wreak havoc on New York.

Siam Sam
11-13-2009, 08:53 PM
I don't think Major Hasan will be tried in a Texas court. Didn't they rule it would be a military trial? Similarly, McVeigh's trial was federal, not state.

As for Khalid, I think we all know the verdict and sentence barring some sort of earth-shattering revelation, and so does he. Would YOU want to be known as the jury who acquitted him? But for me, it's like being worried Charles Manson or John Wayne Gacy can't get a fair trial. I won't be losing any sleep.

Oakminster
11-13-2009, 09:12 PM
But for me, it's like being worried Charles Manson or John Wayne Gacy can't get a fair trial. I won't be losing any sleep.

Well maybe you can donate some of that sleep to the defense team. I have a feeling they won't be getting much of their own.

CoolHandCox
11-13-2009, 09:16 PM
I don't think Major Hasan will be tried in a Texas court. Didn't they rule it would be a military trial? Similarly, McVeigh's trial was federal, not state.

Your statements are all correct.

Major Hasan won't be tried in a Texas State or Federal court, but a courts-martial because he is in the military. The venue is currently in Fort Hood (I'm not sure how they divide venues) and will remain there, unless the defense can prove the defendant would be prejudiced by staying. I believe the seated jury has to rank Major or higher (Hasan's rank and up). In this case, I would expect a general or two. The jury pool will be drawn from that venue. In my opinion, it won't move though.

Der Trihs
11-13-2009, 09:46 PM
As for Khalid, I think we all know the verdict and sentence barring some sort of earth-shattering revelation, and so does he. Would YOU want to be known as the jury who acquitted him? But for me, it's like being worried Charles Manson or John Wayne Gacy can't get a fair trial. I won't be losing any sleep.Well, without a fair trial why would you assume they actually did what they were accused of?

And yes; the fact that the guy is going to get just a show trial with a predetermined outcome, and that we "know" that he's guilty because liars and torturers say so does bother me. At this point, I don't think an honest trial is possible; too many liars and too much torture have tainted the evidence. Maybe he's guilty; maybe he's just random Islamist they grabbed and the actual guilty party is off somewhere laughing at us.

John Mace
11-13-2009, 09:53 PM
Yeah, what could possibly go wrong?

Tom Tildrum
11-13-2009, 09:56 PM
I've forgotten my criminal procedure; can KSM request a bench trial (to a judge, rather than a jury) over the prosecution's objection?

elucidator
11-13-2009, 10:03 PM
You've "forgotten"? Another frickin' lawyer? I don't want to alarm anybody, but by my count thats about fifteen self-admitted lawyers on the Boards.

Kinthalis
11-13-2009, 10:15 PM
Well, without a fair trial why would you assume they actually did what they were accused of?

And yes; the fact that the guy is going to get just a show trial with a predetermined outcome, and that we "know" that he's guilty because liars and torturers say so does bother me. At this point, I don't think an honest trial is possible; too many liars and too much torture have tainted the evidence. Maybe he's guilty; maybe he's just random Islamist they grabbed and the actual guilty party is off somewhere laughing at us.

This. It's sad. It'll be a kangaroo trial. The show of bringing him to a civilian court for justice, is exactly that: a show.

Reminds me of the Trek episode where they nab Miles O'Brien, the engineer in Deep Space 9 and haul him before a Klingon court. His "defense" lawyer informs him that in a Klingon court you are guilty... "and I must prove myself innocent?!" No. You are guilty, it has already been decided.

elucidator
11-13-2009, 10:16 PM
Rumors and reports flitting about suggest that he is barking mad. I dread to think what propaganda use our enemies will make of that, if it turns out we tortured him insane.

Of course, may turn out to be "no such thing", and we didn't waterboard him one hundred times... That would be great.

(Does he speak English? Other than "Stop! Stop! Please stop!....")

Oakminster
11-13-2009, 10:18 PM
I've forgotten my criminal procedure; can KSM request a bench trial (to a judge, rather than a jury) over the prosecution's objection?

I think he can, but I'm not sure he should. On the one hand, I think a Judge is more likely to render an impartial verdict. Complicating the analysis is the fact that even an impartial verdict is likely to be guilty. On the other hand, waiving trial by jury in this case may be making things too easy for the prosecution. It only takes one out of twelve to hang a jury in either the guilt or penalty phase of the trial. It's something the defense team will have to consider...

ETA: This being a death penalty case might mean he can't waive a jury. I dunno.

Saintly Loser
11-13-2009, 10:19 PM
I've forgotten my criminal procedure; can KSM request a bench trial (to a judge, rather than a jury) over the prosecution's objection?

That was my first thought. His lawyers cannot possibly want a jury trial -- that would be nuts, especially in New York.

There are any number of problems with trying the man in the Southern District of New York. Aside from the issue of putting a jury together, where are they going to hold him before and during the trial? The MCC? I can't see it. New York does not have, to my knowledge, a maximum-security federal facility (or a maximum security state facility, for that matter, and they can hardly put him in Riker's Island).

Seems like a change of venue is definitely the way to go here. There's a District Court in Guam. . .

Lakai
11-13-2009, 10:20 PM
I would think that having a trial in one of the most liberal cities in the US would be a little more favorable to KSM. If this was in South I think a jury would convict with no more evidence other than the fact that his name is Khalid Sheikh Mohammed.

Manhattan went 80% to John Kerry in 2004. I'm pretty sure the city understands how the government can detain innocent people suspected of terrorism better than any other venue.

Where could he be moved to get a fair trial anyway?

And if I was on that jury (I'm from NYC) I would be pretty pissed off if the prosecution had very little evidence on this guy.

Saintly Loser
11-13-2009, 10:21 PM
This. It's sad. It'll be a kangaroo trial. The show of bringing him to a civilian court for justice, is exactly that: a show.

I'm not so sure. I have some personal knowledge of the judges in the Southern District of New York. They're not exactly tools of the government.

Oakminster
11-13-2009, 10:26 PM
I would think that having a trial in one of the most liberal cities in the US would be a little more favorable to KSM. If this was in South I think a jury would convict with no more evidence other than the fact that his name is Khalid Sheikh Mohammed.



:rolleyes:

I'm sure there's a thread for gratuitous cheap shots at the South, but this ain't it.

Frostillicus
11-13-2009, 10:30 PM
The thought of putting KSM on trial apparently has given John Boner the vapors:


http://www.dailykos.com/storyonly/2009/11/13/804113/-John-Boehner-Wets-His-Pants-While-Politicizing-Terrorism

intention
11-13-2009, 10:39 PM
... Aside from the issue of putting a jury together, where are they going to hold him before and during the trial? The MCC? I can't see it. New York does not have, to my knowledge, a maximum-security federal facility (or a maximum security state facility, for that matter, and they can hardly put him in Riker's Island). ...

I heard AG John Holdren on NPR today saying one of the reasons NYC was chosen was specifically that it does have secure facilities. He said the courthouse was "hardened", that there was a "hardened" secure holding facility nearby, and a tunnel that links the two so he wouldn't have to be transported in the open.

Lakai
11-13-2009, 10:52 PM
The thought of putting KSM on trial apparently has given John Boner the vapors:


http://www.dailykos.com/storyonly/2009/11/13/804113/-John-Boehner-Wets-His-Pants-While-Politicizing-Terrorism

I wonder what technically does Boehner imagine will set KSM free? In order for that to happen, first the prosecution has to be incompetent enough to risk putting him on trial when they don't have enough clean evidence. Second, even if the entire US justice department has a mental breakdown and assigns the case to their worst lawyers, the Judge would have to lose his marbles and issue a bad ruling. Then the Circuit Court and the US Supreme Court would both have to affirm that misguided decision. In other words, most of the US judicial system and the US Justice Department have to royally fuck this one up in order for KSM to go free.

Or he could actually be released because he is innocent. But who wants the US court system to do that?

But forget all that for just a moment. I have a better idea:

Why don't we just give John Boehner a gun and have him shoot KSM in the back of the head? Who sees a problem with this?

CoolHandCox
11-13-2009, 10:56 PM
The article states most of the evidence they plan on using was obtained before he was taken into custody. I can't imagine bringing charges when the outcome would be in doubt. There will be a lot of fireworks about coercion and such by the defense, but if all the evidence predates any possibility of that (he wasn't in our custody), it's just a show.

The actual reality is, even if he's found not guilty, they can still send him back to Guantanamo. Not that Obama would do that for political reasons (Bush would), but even still, no country is going to take him, so he sits and waits in jail for extradition until he dies of old age. So, guilty = jail/injection, not guilty = jail. Yay for Justice!

mrpayday
11-13-2009, 10:57 PM
Sarah Palin doesn't think much of it (http://www.facebook.com/notes/sarah-palin/obama-administrations-atrocious-decision/173486643434)

I assume that's the real Sarah Palin page.

Simplicio
11-13-2009, 11:05 PM
Just glancing at his wikipedia page, the files they recovered from his computer and intercepted phone calls seem pretty damning. I was worried that all they had was his and other confessions which are suspect due to how they were obtained, but I don't think there'll be a problem convicting.

A good move. Keeping these guys in perpetual legal limbo wasn't helping anything, and it seems bizarre to say that this is somehow "soft on terror" when, rather then just leaving them at Gitmo we're bringing them to be tried and, in all likelihood, executed.

Oakminster
11-13-2009, 11:08 PM
I wonder what technically does Boehner imagine will set KSM free? In order for that to happen, first the prosecution has to be incompetent enough to risk putting him on trial when they don't have enough clean evidence. Second, even if the entire US justice department has a mental breakdown and assigns the case to their worst lawyers, the Judge would have to lose his marbles and issue a bad ruling. Then the Circuit Court and the US Supreme Court would both have to affirm that misguided decision. In other words, most of the US judicial system and the US Justice Department have to royally fuck this one up in order for KSM to go free.



Not necessarily. In a fair trial, there is some chance that the Defendant will walk. The defense team is probably going to be reasonably well funded, and they've got a lot of legitimate arguments to raise. A few key rulings could torpedo the prosecution's case, or a single juror could hang the jury. Not saying it is likely, but it is possible.

Saintly Loser
11-13-2009, 11:13 PM
I heard AG John Holdren on NPR today saying one of the reasons NYC was chosen was specifically that it does have secure facilities. He said the courthouse was "hardened", that there was a "hardened" secure holding facility nearby, and a tunnel that links the two so he wouldn't have to be transported in the open.

I guess, but that's the courthouse, not the detention facility. I've been in the SDNY courthouse many times. I believe the holding facility you're referring to is just a place to stash detainees for a few hours while they're waiting for court appearances (I could be wrong -- it's not like I've ever been on trial there). There is a tunnel to the MCC, but the MCC isn't exactly a Supermax prison.

Good Lord, we've got enough problems in New York. We don't need KSM around for a year or however long this trial will take. What a nightmare.

Like I said, change of venue. To the District of Guam.

Lakai
11-13-2009, 11:14 PM
Not necessarily. In a fair trial, there is some chance that the Defendant will walk. The defense team is probably going to be reasonably well funded, and they've got a lot of legitimate arguments to raise. A few key rulings could torpedo the prosecution's case, or a single juror could hang the jury. Not saying it is likely, but it is possible.

The key here is a fair trial. Boehner sounds like he is imagining an unfair ruling that would let KSM walk. The alternative interpretation of Boehner's comments would be that he doesn't want KSM to get a fair trial if it would mean that KSM has a better chance of being held not guilty.

DanBlather
11-13-2009, 11:55 PM
Has America gotten so bad that we view our system of justice as a weakness rather than a strength?

BTW, Palin doesn't understand our legal system. She thinks that a "hung jury" (her quotes) would result in a defendant getting off rather than a retrial.

There is also this gem:... and now this trial venue adds insult to injury, in addition to compromising our efforts in the War on Terror. Heaven forbid our allies see this decision as a reason to become less likely to support our efforts in the future. Is she really so divorced from reality that she thinks our allies would disapprove of a jury trial?

DanBlather
11-13-2009, 11:56 PM
In other words, most of the US judicial system and the US Justice Department have to royally fuck this one up in order for KSM to go free. Maybe they think a Republican is still in office.

Chronos
11-14-2009, 12:07 AM
I wonder what technically does Boehner imagine will set KSM free?Usually, when folks complain about someone getting off on a technicality, the technicality in question is that there wasn't enough evidence for the defendant's guilt.

I've got to say, I really don't understand this attitude of "We can't let this guy go free! We're absolutely certain he's guilty! We can't let him go to trial! There might not be enough evidence to convict him!". If you're so certain he's guilty, then present the evidence that makes you so certain, and if the evidence is as good as you insist it is, then there should be no difficulty getting a guilty verdict.

hansel
11-14-2009, 12:10 AM
The interesting legal question, to me, that perhaps some of the lawyers here could speculate on: Say that they have enough evidence that they never have to bring up anything raised as part of waterboarding or his time at Gitmo, never have to introduce evidence that came from "enchanced interrogation techniques". Does that effectively eliminate those events from consideration at trial? If the prosecution is simply mum on all the legally iffy evidence, can the defense introduce his years at Gitmo somehow and bring his treatment into the courtroom?

Yes, it'll be a circus. So was OJ's trial. I don't recall anyone suggesting we should skip the trial in his case.

elucidator
11-14-2009, 12:24 AM
I want more than that. I want complete transparency, I want every 't' dotted and every 'i' crossed, I want the world to see us bend over backwards to assure that no matter what we think, what biases we harbor, what vengeance we crave....the trial is completely fair and open.

Let the world see that when we speak of justice and fairness, we aren't just mouthing words. Let this trial shame our enemies, and give our friends reason to be proud of that fact.

hansel
11-14-2009, 12:26 AM
Let the world see that when we speak of justice and fairness, we aren't just mouthing words. Let this trial shame our enemies, and give our friends reason to be proud of that fact.Bit late for that, don't you think?

CoolHandCox
11-14-2009, 12:33 AM
If you're so certain he's guilty, then present the evidence that makes you so certain, and if the evidence is as good as you insist it is, then there should be no difficulty getting a guilty verdict.

That's exactly spot on.

What I personally think is going on, is that this creates a precedent and that is what worries people. The time will come when you're going to try a guy in criminal court where the evidence that can be admitted will not be as good. They "know" he's a bad guy, though and don't want to set him free.

Someone as notorious as KSM will never go "free" no matter what happens, ever. He will always remain in jail for the rest of his life. If the feds fail, let NY try him, if they fail, send him back to Gitmo, if you don't do that, let another country try him, if they fail, deport him to a country that accepts him. No one will. As an example, Gen. Noriega has finished his sentence in 2007 and is sitting in jail/interned (as a POW, so he is treated like one) as a "free" man. He'll be set "free" and be charged by another country and sit in their jails.

Oakminster
11-14-2009, 12:34 AM
The interesting legal question, to me, that perhaps some of the lawyers here could speculate on: Say that they have enough evidence that they never have to bring up anything raised as part of waterboarding or his time at Gitmo, never have to introduce evidence that came from "enchanced interrogation techniques". Does that effectively eliminate those events from consideration at trial? If the prosecution is simply mum on all the legally iffy evidence, can the defense introduce his years at Gitmo somehow and bring his treatment into the courtroom?



If federal court works like my state courts, first there will be a trial to determine guilt. If there is a conviction on a death eligible offense, there is another trial to decide whether the penalty should be death or life in prison. During the penalty phase, the Defendant is allowed to introduce evidence of a wide range of mitigating factors. Arguably, some of the enhanced interrogation stuff would be relevant and admissible for that purpose even if the prosecution never mentioned it.

Also, I think there is potential for a lot of that stuff to come out in discovery. The prosecution has a duty to turn over anything that may be exculpatory evidence to the defense. The defense is probably going to have to fight like hell to get to the material, and may never get everything they want or should get, but they'll get more than they've ever been able to get in military tribunals.

boytyperanma
11-14-2009, 12:36 AM
Since upon being detained the defendants were likely tortured, the case could be made to disregard evidence acquired after there detention. It is a shame that Bush policies have irrevocably damaged the prosecutions ability to bring into evidence all information that was gathered in relation to the case.

That said, the executive branch has looked at the case very long and hard and still came to the conclusion it can be tried in federal court, this is not a decision they would come to if they didn't believe they could make their case even without evidence that may be dismissed as tainted. It is my belief they will avoid any evidence that may have been tainted and stick to evidence that was gathered in acceptable means. Bringing in confessions as a result of water boarding would turn the case into a referendum on torture, no one wants that to be the case.

In the case of KSM they have a lot of good untainted evidence of his crimes gathered before he was ever detained including him on film admitting to the attacks. Surely they can make a case without ever opening the door for tainted evidence or allegations of torture to be brought in.

I don't think the court will see anything related to the detainment until the sentencing phase of the trial where factors of the defendants treatment and mental status can be factored in.

Richard Parker
11-14-2009, 10:12 AM
This happens to be the courthouse where my wife works. But she's only there until next September, so hopefully she won't have to put up with the crazy security that will accompany KSM. We had a terrorism trial in my courthouse a few years back before I was there, and by all accounts it took about an hour out of everyone's day in additional security procedures (partly because of the defendant and partly because of the increased media).


What I personally think is going on, is that this creates a precedent and that is what worries people. The time will come when you're going to try a guy in criminal court where the evidence that can be admitted will not be as good. They "know" he's a bad guy, though and don't want to set him free.


But we have a long history of trying major terrorists in criminal court. That precedent is already set, IMHO, and it is the detention without trial that departs from it.

CoolHandCox
11-14-2009, 11:10 AM
But we have a long history of trying major terrorists in criminal court. That precedent is already set, IMHO, and it is the detention without trial that departs from it.

You're right. Terrorists are historically tried in criminal courts because they are criminals. I was using precedent only referring to these enemy combatants/terrorists, once you start trying these guys, the expectation will be to try the rest in criminal courts.

These terrorists are different from previous terrorists. So the mantra goes. They are above criminals and committed an act of war. The argument isn't totally unfounded as the US Congress (http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html), NATO (http://www.nytimes.com/2001/09/13/us/after-attacks-alliance-for-first-time-nato-invokes-joint-defense-pact-with-us.html), and even the United Nations (http://www.mythsandfacts.org/Conflict/18a/1368.htm) (somewhat) considered 9/11 to be an act of war against the United States. Most terrorists don't drum up that kind of attention.

Nars Glinley
11-14-2009, 11:45 AM
I believe Khalid Mohammed was also waterboarded more than 100 times, and anything obtained by those means would be impermissible.

I would hope that even statements that he made after he was waterboarded would be excluded. "I just made shit up because I was afraid of being waterboarded again" seems like a pretty reasonable defense to me.

It's also difficult to see the CIA/FBI/Army et al wanting much of their "evidence" gathering tactics exposed to public scrutiny.

DanBlather
11-14-2009, 12:17 PM
These terrorists are different from previous terrorists. So the mantra goes. They are above criminals and committed an act of war. The argument isn't totally unfounded as the US Congress (http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html), NATO (http://www.nytimes.com/2001/09/13/us/after-attacks-alliance-for-first-time-nato-invokes-joint-defense-pact-with-us.html), and even the United Nations (http://www.mythsandfacts.org/Conflict/18a/1368.htm) (somewhat) considered 9/11 to be an act of war against the United States. Most terrorists don't drum up that kind of attention.It was an "act of war" but Bush did not want to treat them as POWs so they invented the legal limbo of "enemy combatant".

elucidator
11-14-2009, 12:28 PM
Which only underscores the brilliance of his leadership! Can you name another President with the bold vision to create a new category out of whole cloth?

Simplicio
11-14-2009, 12:31 PM
You're right. Terrorists are historically tried in criminal courts because they are criminals. I was using precedent only referring to these enemy combatants/terrorists, once you start trying these guys, the expectation will be to try the rest in criminal courts.

Even with that caveat, Zacharias Moussai, the "20th hijacker" was tried in a federal court on charges related to 9/11. So again, the precedent has already exists. And the evidence in this Khalid's case appears to be considerably stronger then that for Moussai.

CoolHandCox
11-14-2009, 01:20 PM
Which only underscores the brilliance of his leadership! Can you name another President with the bold vision to create a new category out of whole cloth?

Obama? The artists formerly known as enemy combatants (http://www.justice.gov/opa/documents/memo-re-det-auth.pdf) (pdf); Here's the new definition from March 2009:

"The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces."

All Presidents in a war define their enemy. The only novel thing here is these guys don't fight on behalf of a State or fight to Govern a State (rebels). The US Congress/Executive determined this was an act of war though and are treating them as enemy combatants. Military necessity dictates that you can detain your enemy during a war. You define them so you know who is an enemy, and who is a civilian.

It was an "act of war" but Bush did not want to treat them as POWs so they invented the legal limbo of "enemy combatant".

Al Qaeda can never receive the status of POW's. They do not fight on behalf of a State. That is an undeniable requirement for POW status per the Geneva Conventions. They can be treated like POW's though. The military does this all the time (Kosovo for instance); treat as POW as a matter of policy, not because you're legally required too. If the President would have left the military to their own devices, I'm pretty sure they would have done this, but the President went out of his way to treat them otherwise.

A "treatment" of being a POW is it gives you built in due process. In this "war", they started out with hardly any (none?), but after many years and court cases, while not POW's, they now have as much due process as a POW would have (tribunal to determine their status, habeas rights, can appeal to civilian federal courts, ect). But alas, it's too late because the whole situation is tainted.

So, KSM is an enemy combatant and can be preventively detained until the end of hostilities, and/or he can be tried in a military court for any war crimes he committed. But as Richard Parker correctly pointed out, terrorists have previously only been treated as criminals in civilian courts, which thoroughly blurs the laws of war vs. common criminal. It's unprecedented territory.

John Mace
11-14-2009, 02:46 PM
This happens to be the courthouse where my wife works.
Tell me you're not a 2-lawyer family... ;)

But we have a long history of trying major terrorists in criminal court. That precedent is already set, IMHO, and it is the detention without trial that departs from it.
Although I'm on record here as saying we should try them in our court system, I wonder if this precedent has really been set. These guys were captured under "battlefield conditions", on non-US soil. The "20th hijacker", for example, was captured on US soil and so was subject to US police procedures. Soldiers on the battlefield are under no such constraints. Which case or cases are you thinking that most resemble this one?

Richard Parker
11-14-2009, 03:09 PM
Tell me you're not a 2-lawyer family... ;)

It's better this way, really. Like a leper colony.

These guys were captured under "battlefield conditions", on non-US soil.

I'm not sure "battlefield conditions" is accurate, at least for KSM. He was picked up by Pakistan's ISI in Karachi. We have tried terrorists in civilian courts who were captured under those circumstances. See, e.g., http://en.wikipedia.org/wiki/Mahmud_Abouhalima ("[C]aptured by Egyptian police and handed back to the United States, mummified in duct tape.")

Simplicio
11-14-2009, 03:10 PM
These guys were captured under "battlefield conditions", on non-US soil. The "20th hijacker", for example, was captured on US soil and so was subject to US police procedures. Soldiers on the battlefield are under no such constraints. Which case or cases are you thinking that most resemble this one?

Non-US soil, maybe, but I don't think you can describe Khalid's capture as happening on a "battlefiled". The CIA and Pakistani Intelligence Service captured him when they raided an Al-Queda suspects house in Pakistan.

smiling bandit
11-14-2009, 03:24 PM
I'm still flabbergasted by the supposedly liberal memebers of the SD patting themselves on the back while asserting that crimes against Americans are universal, and we can abduct people for it and subject them to criminal proceedings when they have not, in fact, committed any crime in or under our jurisidction. I'm not pleased with existing US law on this, but I think he may walk (eventually, and on appeal) simply because we have no right to try him.

When I support detaining this man, it is not because I think it lawful but because I think there is no law on the matter, and has never been. Whatever his crimes, they lie in the moral realm, but as we cannot let him simply be (because he'll do it again and again), we'll simply have to suck it up and live in the unpleasant reality that evil men can and will do everything to evade law, and lock him away.

gonzomax
11-14-2009, 03:27 PM
You can be sure that Obama's legal people have carefully analyzed the evidence and feel they can get a conviction. To offer this guy a full trial that the whole world can watch, is a great idea. Especially if they can prove him guilty.

Diogenes the Cynic
11-14-2009, 03:33 PM
I think the chances that he'll walk are less than nil, but imagine if he did. How long would he last out on the streets of New York City? Eleven seconds? Nine? I would guess that being let out would be about the worst thing that could happen to him.

CoolHandCox
11-14-2009, 03:49 PM
I'm still flabbergasted by the supposedly liberal memebers of the SD patting themselves on the back while asserting that crimes against Americans are universal, and we can abduct people for it and subject them to criminal proceedings when they have not, in fact, committed any crime in or under our jurisidction. I'm not pleased with existing US law on this, but I think he may walk (eventually, and on appeal) simply because we have no right to try him.

Assuming we're talking about KSM, the attack occurred in NY. He conspired with the people who flew the planes. The problem would be with the crime, not the jurisdiction.

I think the chances that he'll walk are less than nil, but imagine if he did. How long would he last out on the streets of New York City? Eleven seconds? Nine? I would guess that being let out would be about the worst thing that could happen to him.

I'd go out on a limb suggest he wouldn't be allowed into our country and we'd deport him.

That reminds me though of the first thing I think of when they go to federal prison and lasting 9-11 seconds before being shanked. The child molesters would welcome a worse evil. (obviously they would be separated and this wouldn't happen, but that's just what I picture)

Simplicio
11-14-2009, 03:57 PM
I'm still flabbergasted by the supposedly liberal memebers of the SD patting themselves on the back while asserting that crimes against Americans are universal, and we can abduct people for it and subject them to criminal proceedings when they have not, in fact, committed any crime in or under our jurisidction.

Your saying that just because he wasn't in the US when 9/11 occured, he can't be charged for it? IANAL, but that doesn't sound right.

Also worth noting that he'd been indicted by the US even before 9/11, so presumably the gov't thought they had enough evidence to convict him not only before he was waterboarded, but even before the attacks he's most famous for.

Lakai
11-14-2009, 04:45 PM
I'm still flabbergasted by the supposedly liberal memebers of the SD patting themselves on the back while asserting that crimes against Americans are universal, and we can abduct people for it and subject them to criminal proceedings when they have not, in fact, committed any crime in or under our jurisidction. I'm not pleased with existing US law on this, but I think he may walk (eventually, and on appeal) simply because we have no right to try him.

Where are you getting this from? US jurisdiction extends over everyone who violates US laws. What makes you think there is no law on this?

WarmNPrickly
11-14-2009, 05:33 PM
Your saying that just because he wasn't in the US when 9/11 occured, he can't be charged for it? IANAL, but that doesn't sound right.

Also worth noting that he'd been indicted by the US even before 9/11, so presumably the gov't thought they had enough evidence to convict him not only before he was waterboarded, but even before the attacks he's most famous for.

I don't think it was a problem with Manuel Noriega either. As far as I know, he was never physically in the US to commit a crime.

pravnik
11-14-2009, 05:59 PM
The interesting legal question, to me, that perhaps some of the lawyers here could speculate on: Say that they have enough evidence that they never have to bring up anything raised as part of waterboarding or his time at Gitmo, never have to introduce evidence that came from "enchanced interrogation techniques". Does that effectively eliminate those events from consideration at trial? If the prosecution is simply mum on all the legally iffy evidence, can the defense introduce his years at Gitmo somehow and bring his treatment into the courtroom?Not during guilt/innocence. If the prosectors don't bring up evidence obtained through waterboarding (and they won't - if they didn't think there was enough evidence to convict him without it they'd never try it in New York), it won't be relevant to the issue of his guilt on 9/11. I suppose it might come out in punishment, but I'm not too sure on that.

pravnik
11-14-2009, 06:08 PM
I'm still flabbergasted by the supposedly liberal memebers of the SD patting themselves on the back while asserting that crimes against Americans are universal, and we can abduct people for it and subject them to criminal proceedings when they have not, in fact, committed any crime in or under our jurisidction. I'm not pleased with existing US law on this, but I think he may walk (eventually, and on appeal) simply because we have no right to try him.How do you get that? You don't have to be standing on U.S. soil to violate U.S. law. If you hire somebody to go to the U.S. and murder a federal offical, you're just as guilty of breaking U.S. law as he is. If the allegations are true, KSM has violated the U.S. Code by conspiring to commit terrorism within our borders and upon our citizens, all without ever having set foot here.

Simplicio
11-14-2009, 06:13 PM
I don't think it was a problem with Manuel Noriega either. As far as I know, he was never physically in the US to commit a crime.

This (http://www.theage.com.au/articles/2007/05/06/1178390140855.html?page=2) guy is apparently another example. He was extradited from Australia to the States for US copywrite violations despite never having been to the latter country.

John Mace
11-14-2009, 07:16 PM
I'd go out on a limb suggest he wouldn't be allowed into our country and we'd deport him.

Deport him where? What country would take him?

mswas
11-14-2009, 07:18 PM
I don't get it. Is he really going to be on Saturday Night Live tonight?

CoolHandCox
11-15-2009, 12:36 AM
Deport him where? What country would take him?

I don't think any country would take him, unless they were going to charge him with crimes under a universal or national type jurisdiction. So he would be confined awaiting deportation. Forever.

boytyperanma
11-15-2009, 12:48 AM
I don't think any country would take him, unless they were going to charge him with crimes under a universal or national type jurisdiction. So he would be confined awaiting deportation. Forever.

I'm just picturing him going on his 'World Extradition Tour' where after each trial he his shipped to the next country for the next trial. Unfortunately it was badly planned as he's starting in a country that carries out the death penalty. That might cut his tour short.

elucidator
11-15-2009, 02:00 AM
What if he's nuts? Truly nuts, certifiable. Whatever villain he was, what he is now is a mass of hairy batshit. I won't speak for you, but I got a hunch that if I was held captive for years by people who hated my guts enough to waterboard me a hundred times, that might send me round the bend. Just given what we already know, what they've told us, there's a pretty decent chance he's totally mental.

What then?

boytyperanma
11-15-2009, 02:20 AM
What if he's nuts? Truly nuts, certifiable. Whatever villain he was, what he is now is a mass of hairy batshit. I won't speak for you, but I got a hunch that if I was held captive for years by people who hated my guts enough to waterboard me a hundred times, that might send me round the bend. Just given what we already know, what they've told us, there's a pretty decent chance he's totally mental.

What then?

Then they may not be able to execute him but they can certainly incarcerate him for the rest of his natural life to be fair and humane we might have to provide a counselor on occasion. People who are found guilty by reason of insanity aren't just released back onto the streets like TV shows like to make us believe.

Oakminster
11-15-2009, 02:44 AM
I'd expect that one of the early defense motions will be asking for an independent psychological evaluation.

Simplicio
11-15-2009, 09:26 AM
I'd expect that one of the early defense motions will be asking for an independent psychological evaluation.

IIRC, some of his cohorts are asking for a psycological evaluation before the trial, but Khalid is not, so presumably he isn't using an insanity defense.

In anycase, it's hard to believe he was insane while at the same time planning complex, multinational terrorist attacks and managing to dodge the US gov't. And if he's been driven insane by his captivity, as elucidator suggests, then he was still sane at the time of the crime he's being tried for, and so can't use the insanity defense.

Richard Parker
11-15-2009, 09:28 AM
IIRC, some of his cohorts are asking for a psycological evaluation before the trial, but Khalid is not, so presumably he isn't using an insanity defense.

Psychological evaluation is used to prove both insanity and competency for trial. With regard to the latter, I'm somewhat certain that the accused's opinion of whether or not he is competent for trial is irrelevant to whether the Judge will grant a request to ascertain that fact.

Hamlet
11-15-2009, 09:37 AM
IIRC, some of his cohorts are asking for a psycological evaluation before the trial, but Khalid is not, so presumably he isn't using an insanity defense.

In anycase, it's hard to believe he was insane while at the same time planning complex, multinational terrorist attacks and managing to dodge the US gov't. And if he's been driven insane by his captivity, as elucidator suggests, then he was still sane at the time of the crime he's being tried for, and so can't use the insanity defense.Not as a defense to the crime, but if he is found "presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.", they can't try him, they'll instead lock him up in a mental institution until he does regain competency.

John Mace
11-15-2009, 02:43 PM
I'm not sure "battlefield conditions" is accurate, at least for KSM. He was picked up by Pakistan's ISI in Karachi. We have tried terrorists in civilian courts who were captured under those circumstances. See, e.g., http://en.wikipedia.org/wiki/Mahmud_Abouhalima ("[C]aptured by Egyptian police and handed back to the United States, mummified in duct tape.")

OK. Is that true for all these guys?

Interesting twist to all this: In an interview I saw this AM on Chris Wallace's show, Sen Jack Reed (D-RI) was asked what would happen if they were found not guilty. His answer was that we could still detain them indefinitely since they pose a threat to the US. That kinda makes the whole thin moot, if you ask me.

Simplicio
11-15-2009, 02:58 PM
OK. Is that true for all these guys?

Interesting twist to all this: In an interview I saw this AM on Chris Wallace's show, Sen Jack Reed (D-RI) was asked what would happen if they were found not guilty. His answer was that we could still detain them indefinitely since they pose a threat to the US. That kinda makes the whole thin moot, if you ask me.

Well, they're facing the death penalty if convicted, so its probably not moot to them.

Richard Parker
11-15-2009, 03:29 PM
OK. Is that true for all these guys?

I'm not sure.


Interesting twist to all this: In an interview I saw this AM on Chris Wallace's show, Sen Jack Reed (D-RI) was asked what would happen if they were found not guilty. His answer was that we could still detain them indefinitely since they pose a threat to the US. That kinda makes the whole thin moot, if you ask me.

It's a fair point, if indeed that is the actual US position. I'm not sure I would go so far as to say such a position would make the whole thing moot (a criminal trial for past acts would still have some due process benefits and PR benefits even if detention based on anticipated act was waiting in the wings), but we definitely cannot say we're subjecting them to ordinary criminal justice if we plan to continue detaining them without charges upon a finding that they are not guilty.

I'm not one of the people who thinks we can just use ordinary law enforcement as-is to deal with terrorism. We obviously need some kind of hybrid approach between the constitutional protections applied to ordinary criminal and the no-holds-barred military approach. I could have gotten behind an approach to military commissions that was better-constructed than the Bush version. But I think this is at least a better alternative to straight-up indefinite detention or Bush-style commissions.

CoolHandCox
11-15-2009, 03:32 PM
Interesting twist to all this: In an interview I saw this AM on Chris Wallace's show, Sen Jack Reed (D-RI) was asked what would happen if they were found not guilty. His answer was that we could still detain them indefinitely since they pose a threat to the US. That kinda makes the whole thin moot, if you ask me.

You can be an enemy combatant and a criminal. One does not control the other. The reason the Senator is correct (in theory) is you're not being punished if you're an enemy combatant. You're being preventively detained until the end of hostilities. Whereas, a criminal, is being punished. So, if he's not guilty of murder, his status as an enemy combatant is unchanged. Hostilities (I guess) have not ended. EC status is reviewed yearly, I'm guessing being found not guilty could be used to re-determine status.

Oakminster
11-15-2009, 07:06 PM
OK. Is that true for all these guys?

Interesting twist to all this: In an interview I saw this AM on Chris Wallace's show, Sen Jack Reed (D-RI) was asked what would happen if they were found not guilty. His answer was that we could still detain them indefinitely since they pose a threat to the US. That kinda makes the whole thin moot, if you ask me.

I dunno about that. Sen Reed seems to be forgetting these guys are now under the jurisdiction of a federal court. If they're found not guilty, I think the federal court can order them released from custody. Indefinite detention can't be constitutional imho.

elucidator
11-15-2009, 07:12 PM
Not "officially", perhaps. But if they want to do a bureaucratic slow-walk with appeals stacked upon appeals, and indefinite digressions mulling minor points, they can keep him behind bars for a long time. After all, who's going to demand his release? Outside of ACORN, I mean.

Oakminster
11-15-2009, 07:24 PM
After all, who's going to demand his release? Outside of ACORN, I mean.

I would, if I was defense counsel. And yes, I'd defend these guys to the best of my ability if appointed or hired to do so.

elucidator
11-15-2009, 07:50 PM
Aside: An interesting question in ethics: demand release for your client when there is every likelihood that his release would be, shall we say, not in his best interests? I mean, legally, winning his release is good, sure, but is he going to walk out and catch a cab to the airport?

CoolHandCox
11-15-2009, 07:55 PM
I dunno about that. Sen Reed seems to be forgetting these guys are now under the jurisdiction of a federal court. If they're found not guilty, I think the federal court can order them released from custody. Indefinite detention can't be constitutional imho.

I agree with the spirit of your post. Indefinite detention cannot be constitutional. I'm not sure if the Supreme Court has ruled that recently, or merely hinted, but it's obvious nonetheless.

I still think if found not guilty, KSM could be returned to Guantanamo as an Enemy Combatant. Let's say there's evidence that KSM did acts that would have been violations of crimes x, y, z. But, the prosecution determines they only have enough evidence to prove crime x beyond a reasonable doubt. KSM is only charged with crime x, even though there is some evidence of crimes y and z. KSM is found not guilty of crime x in a criminal court.

There is still evidence of crimes y and z. y and z tend to prove KSM provided substantial support to Al Qaeda. The combatant status tribunal could use this evidence to find KSM as an enemy combatant (they already have). In this tribunal, the burden is on KSM to prove he is not an EC. The tribunal could also use evidence of crime x because the standard is that the evidence is genuine (ie, it doesnt' have to be proven beyond a reasonable doubt). KSM has to prove it's not credible.

KSM can appeal his ruling to the federal courts, but he's appealing the status determination of being an EC, not appealing any crimes he committed.

That's how I see it, anyways. Of course, this is means you could, policy considerations would probably keep this "unjustice" from happening with 99% of the detainees (KSM being in the 1%).

On another note, if someone is found guilty and receives 8 years, do they get time served and released? Most of the detainees are not KSM and will receive 5-20year type sentences. I see arguments for and against a time served.

Nars Glinley
11-15-2009, 08:26 PM
Not "officially", perhaps. But if they want to do a bureaucratic slow-walk with appeals stacked upon appeals, and indefinite digressions mulling minor points, they can keep him behind bars for a long time. After all, who's going to demand his release? Outside of ACORN, I mean.

Appealing a not guilty verdict? I was unaware that American jurisprudence worked that way.

elucidator
11-15-2009, 08:29 PM
TG, IANAL, but my dim recollection is that it is uncommon for the prosecution to appeal when they lose, but not unheard of.

Simplicio
11-15-2009, 08:45 PM
TG, IANAL, but my dim recollection is that it is uncommon for the prosecution to appeal when they lose, but not unheard of.

This would violate the 5th Amendment (double Jeopardy (http://en.wikipedia.org/wiki/Double_jeopardy#United_States)), no?

They can still try him for crimes other then 9/11 though. And I assume he can still be extradited to another country to face 9/11 related charges.

Though again, I highly doubt he's going anywhere but death row after the trial.

Qin Shi Huangdi
11-15-2009, 09:10 PM
Hopefully he will put to death.

Magiver
11-15-2009, 10:07 PM
You can be sure that Obama's legal people have carefully analyzed the evidence and feel they can get a conviction. You mean like the crack team he used for vetting his appointments? Obama owns this trial.

elucidator
11-15-2009, 10:23 PM
Seems to me that Obama has gone to considerable length to emphasize the Justice Dept. independence from his direction. Given the repulsive performance of the previous administration in this regard, that's a pretty good idea.

GeeDub took the precaution of loading up the Justice Dept with some of the most brilliant graduates of C-list law schools. They're his too, now, lucky lucky Barry.

WarmNPrickly
11-15-2009, 11:35 PM
Hopefully he will put to death.
I think it is the most likely outcome, but I hope not. The best way to deal with potential martyrs is a long and silent life behind bars, and they are all potential martyrs.

Lakai
11-15-2009, 11:56 PM
This would violate the 5th Amendment (double Jeopardy (http://en.wikipedia.org/wiki/Double_jeopardy#United_States)), no?

From your link it says that the prosecution can appeal a not guilty verdict on grounds of fraud or when the Judge makes a judgment notwithstanding the verdict.

I think CoolHandCox has it right that the US government will probably claim KSM is an enemy combatant if he is found not guilty. They won't need to waste time with appeals.

If they somehow can't get away with that, a more drastic measure would be to have Congress suspend the writ of habeas corpus for KSM. Then the US gov't will be able to hold him for as long as it wants.

Chronos
11-16-2009, 12:23 AM
If they somehow can't get away with that, a more drastic measure would be to have Congress suspend the writ of habeas corpus for KSM. Then the US gov't will be able to hold him for as long as it wants.I was about to say they couldn't do that, but it turns out that the Constitution does allow for an exception in cases of rebellion or invasion, and I guess that I can grant that the 9-11 attacks can be construed as "invasion".

Oakminster
11-16-2009, 12:32 AM
GeeDub took the precaution of loading up the Justice Dept with some of the most brilliant graduates of C-list law schools. They're his too, now, lucky lucky Barry.

The snob appeal of the law school attended has nothing to do with the quality of the lawyer produced. Everybody in a particular jurisdiction takes the same bar exam.

And, for Chronos, I don't think the feds could plausibly argue the attacks of 9/11/01 constitute an "invasion" sufficient to justify suspending the writ of habeas corpus in 2009+.

elucidator
11-16-2009, 01:11 AM
The snob appeal of the law school attended has nothing to do with the quality of the lawyer produced. Everybody in a particular jurisdiction takes the same bar exam.....

Well, now, if you want to join in on a chorus of "Working Class Hero", I'm there...

But tell me the truth: if you had to pick a lawyer that you really, really need, and all you get to pick from is the law school, you wouldn't be a tad reluctant about Liberty University? Lynchburg? Jerry Falwel? Wouldn't give you pause?

Oakminster
11-16-2009, 01:30 AM
Well, now, if you want to join in on a chorus of "Working Class Hero", I'm there...

But tell me the truth: if you had to pick a lawyer that you really, really need, and all you get to pick from is the law school, you wouldn't be a tad reluctant about Liberty University? Lynchburg? Jerry Falwel? Wouldn't give you pause?

I wouldn't pick a lawyer from Liberty for other reasons. I tend to not get along with bible thumpers.

And if my ass was on the line, I'd go with somebody I know and respect. That list includes mostly guys from non-ivy league schools. You can't learn to try cases in law school. You learn to try cases by trying cases. Some of the best criminal defense guys in the business are the guys that graduated "Thank you, Lordy" from third tier schools, squeaked by on the bar, and then spent a few years in public defender jobs.

elucidator
11-16-2009, 02:50 AM
Well, thats as may be. But I still harbor an unworthy suspicion that these people were mostly recruited for thier ideological reliability. Now, if you are determined to believe otherwise, I reckon that's ok too.

John Mace
11-16-2009, 09:14 AM
I agree with the spirit of your post. Indefinite detention cannot be constitutional. I'm not sure if the Supreme Court has ruled that recently, or merely hinted, but it's obvious nonetheless.

They punted on that one. Can't remember which case it was (Hamdan or Hamdi or something like that), but they did rule that "indefinite detention" was unconstitutional. Thing is, they said the prez had some discretion as to how long he could hold them, it just couldn't be "forever". They didn't say what the trigger was, though. So he can hold them for some period of time to be determined by some later court case, I presume.

Simplicio
11-16-2009, 10:06 AM
They punted on that one. Can't remember which case it was (Hamdan or Hamdi or something like that), but they did rule that "indefinite detention" was unconstitutional. Thing is, they said the prez had some discretion as to how long he could hold them, it just couldn't be "forever". They didn't say what the trigger was, though. So he can hold them for some period of time to be determined by some later court case, I presume.

IIRC, they could be held "until cessation of hostilities". Of course, in this case, that's pretty much the same thing as not defining a trigger at all.