Live from New York, it's Khalid Sheikh Mohammed

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!

Sarah Palin doesn’t think much of it

I assume that’s the real Sarah Palin page.

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.

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.

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.

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.

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:

Is she really so divorced from reality that she thinks our allies would disapprove of a jury trial?

Maybe they think a Republican is still in office.

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.

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.

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.

Bit late for that, don’t you think?

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.

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.

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.

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).

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, NATO, and even the United Nations (somewhat) considered 9/11 to be an act of war against the United States. Most terrorists don’t drum up that kind of attention.

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.

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”.

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?