James Joyner provides a rebuttal to the notion that KSM should be tried, and it is notable for the fact that it contains actual arguments and not screaming and wailing and wet underpants.
The KSM Trial
This post is in: Excellent Links, War on Terror aka GSAVE®
superking
The hole in his argument is that KSM confessed before he was waterboarded. We just waterboarded him for fun, basically. So, we don’t have to worry about torture tainting the confession.
Davebo
Not really. James claims that KSM is a war criminal.
What war exactly he doesn’t seem to wish to share with us.
Smith Barney
They should really stop using that picture of KSM. First, he no longer looks like that; and second, in it he looks like John Belushi after a long night of partying.
soonergrunt
Color me unimpressed with his argument, which seems to be that we should continue to do things he finds morally repugnant because we started out doing things that he thought were morally repugnant.
If you want to thread the needle here, give these guys genuine, bona fide courts martial.
Wag
There are no actual arguements there. The only difference is that he makes his points, such as they are, without whining.
TPM has an interesting post on the subject of the KSM trial.
Napoleon
@superking:
Bingo – why is it that nearly no one seems to get this.
joes527
I couldn’t make it past:
I can’t find any basis for discussion with folks who think that adherence to laws should be evaluated based on whether there is an “upside.” We aren’t even speaking the same language at that point.
noncarborundum
@joes527: I made it that far, but only barely. I almost didn’t make it past “I was out of pocket for a few days . . .” What? And then someone started paying his expenses?
joeyess
no, no, no, NO, NO!!!
Congress has declared war on no one. Ergo, KSM and company can’t be tried as “war criminals”. Why does this one, simple fact seem to elude people who are concerned about civilian trials for non-citizens who commit CRIMES in the U.S.?
It astounds me.
Easy as pie, folks. You want “Nuremberg” modeled trials? Congress must declare and we must win a war.
We haven’t done that as a nation since 1941. FSM help us if we ever do it again.
smiley
I see a lot of assertions there but no evidence or argument to support them. They need to remember, just 5 are going to be tried in NY. The others are getting military tribunals. In light of what I blockquoted, is it not possible that some actual thought when into who gets trials and who gets tribunals?
gex
@joes527: Awww, shiiiiiit. I want to live in their world. There’s a lot of sweet, sweet stuff for the taking everywhere you go. I used to think that taking stuff that isn’t yours is wrong AND illegal. But I failed to do the full Reagan-esqe cost/benefit analysis. Is there an upside to stealing this dude’s wallet? Why, yes, yes there is – look, $100!
Zifnab
So, here’s my beef. Go down to Mexico. Punch someone in the face (or run a stop light or rob a grocery store). Get picked up by the cops. Where do they try you? Mexican Civilian Court.
Fly off to merry old Englande. Stab a bloke in the ear with a butter knife. Guess where you’re being tried? English Civilian Court.
Now trapsey off to Singapore and spit your gum on the sidewalk. The cops that arrest you will be bringing you to jail, where you’ll be in the custody of the Singapore Civilian Court before you are paddled, fined, and released.
I don’t see anyone complaining that you’re going to get “special rights and priviledges” for being in a Mexican jail or under investigation by Scotland Yard. If anything, I imagine it’s much preferable to be at the tender mercies of an easily corruptible highly political Singapore judge than a county clerk in Dallas or LA.
So what’s the deal? When did the US legal system become a blessing reserved the native son?
soonergrunt
This is a common Army vernacular for “I was out of contact,” or “I was off the grid,” and implies that he wasn’t getting regular news, etc.
Little Dreamer
@Davebo:
Is al Qaeda a country? Do they have laws? Do we recognize them as such under international protocol?
Jay
We put the previous WTC bombers on trial with no problem. They are not state actors. They are not foreign soldiers. We are not at war. Doesn’t matter that they’re not citizens. No need for a tribunal of any sort unless you think we can never arrest and convict foreigners of crimes.
If you think that the US doesn’t have evidence of guilt obtained through means other than torture then you can’t be certain the guy is guilty anyway and shouldn’t be proposing anything but letting him go.
El Cid
It’s not really a rebuttal. It’s not an argument. It suggests some lines of argument one might follow, so maybe he’ll do that later.
MikeJ
Lousy arguments. US courts try non-citizens every day.
Media circus? So what? Ever read about the trials for the Boston Massacre? That was a war crime tried in a civilian court. And six of the eight got off scot free, two got manslaughter instead of murder charges.
That he might get a fair trial that doesn’t end in a conviction is a reason to give him a trial, not a reason to shit on the constitution. to quote the summation by defense attorney John Adams,
Zifnab
I will concede this, however, and appreciate the refreshing change of pace.
Seriously conversation? From a conservative, you say?
Hob
Yeah, that’s setting the bar pretty low for “actual arguments.” It’s hard to imagine Joyner believes what he’s writing here; is it possible to have a Ph.D. in poli sci and think that U.S. criminal law can only apply to U.S. citizens? That’s actually even stupider than the Andy McCarthy hysteria. Joyner’s high-school civics teacher is weeping.
Belafon (formerly anonevent)
He argues that KSM is not a citizen. So what? The constitution is there to restrain the actions of the government. The reason the Nuremberg trials worked – beyond people just wanting them to work – is that the suspects were held as international prisoners, not US prisoners. The moment we took ownership of KSM and the others meant that we had to follow our rules. Yes, we could have probably come up with a consitutional system to try them outside our courts, but that was well beyond the abilities of the Bush administration and the Republican Congress since all they were trying to do was score political points. But, since we have a number of rules to prevent indefinite lockup, they need to be tried somewhere.
Annie
It still amazes me that my fellow citizens believe we can either hold individuals indefinitely (re: forever), or execute them without a trial.
History shows that civilian courts have done a better job of persecuting “terrorists” than military courts. Since when are due process, fairness, and justice considered “downsides?”
And, in the process, we get to show the world real — not fake conservative — examples of US values, etc.
smiley
@smiley:
My proofreading sucks.
Jon
The basic gist is “yes, we have principles and beliefs that the greatest country on the world has been built on. Pillars of western civilization. The second reality doesn’t jibe with those beliefs and allow us to continue on with them unmolested however…quick! drop them!”
That’s what drives me so crazy about this. These people go on and on about what’s “right” and how great the US is as a country, but what’s the point of having this system if we drop it at the first sign of difficulty? ugh.
joes527
@MikeJ:
Adams was a DFH. AND shrill.
Little Dreamer
@Annie:
Well, if we’re talking about persecuting, I think the military has done quite a bang up job… if we’re talking about prosecuting, I’d agree with you.
Zifnab
@Jon: More or less. I think the gist is more along the lines of, “Special rights for special people”, where “Special People” are defined as old white southerners and rich people.
Since KSM falls outside that realm…
The Republicans just want a lynching, Saddam Hussien style.
JasonF
@MikeJ: Apropos of the Boston Massacre trial, I always thought it was one of history’s great coincidences that John Adams — the patriot who was so instrumental in the Continental Congress during our fight for independence and went on to become our second president — had the same name as the traitorous villain who would dare defend our enemies in a court of law.
RaptureReadyAndLovinIt
@Davebo:
Well, it’s an undeclared war. It’s all part and parcel to the Unitary Executive idea, namely, that a Republican president, acting to restore God’s Dominion on earth, and unfettered by oversight or by a balance of powers in the government, can do whatever the fuck he wants to do and we can all go fuck ourselves.
By labeling KSM as a war combatant, the Unitary Executive could just leap over all the laws and constraints and do what it wanted to do. That’s the mindset now represented by the GOP. The party of Small Government is now pimping an all-powerful dictatorial government that has no restraining forces holding it back.
Fascinating, ain’t it?
dSquib
Feel we’re setting a low bar here.
Who says they are “equivalent”? We use the same justice system to try petty criminals as we do spree killers. That doesn’t mean we think these crimes are somehow “equivalent”.
Furthermore, that they were “treated” as war criminals was a mistake that these trials go some way towards correcting.
Anyway I’m not clear on why it is so likely that KSM will go free, or anyone else on trial. Not all evidence against him was obtained through torture. The use of torture cannot taint all evidence. Maybe some legal eagle can help me out here.
forked tongue
In light of the facts, I would say this does qualify as wet underpants.
joeyess
@RaptureReadyAndLovinIt:
Absolutely perfect.
Zifnab
@dSquib:
The Obama government is full of soft-on-crime America hating liberals. Only ace attorney Alberto Gonzales has the cajones to prosecute this case successfully.
Zifnab
OJ Simpson. Also.
Annie
@Little Dreamer:
Absolutely!
Pangloss
The Right Wing are a bunch of tough guys when they’re trying to fix the death penalty on a juvenile, a mentally retarded man, or a petty criminal. But KSM comes along, and they’re too scared to even have him in an American maximum security prison…. Typical.
Legalize
Not really. His argument boils down to:
“Because KSM was tortured, which I oppose, there’s a good chance he’ll walk free and/or the trial will get too much media attention and hurt someone’s feelings. Accordingly he should be treated as a war criminal and given a Nuremberg-type tribunal.”
a. What war?
b. If the gov’t used torture, feelings should be hurt. If one is opposed to torture, as one claims, one must accept the negative that comes along with such, i.e. bad press and the risk of fucking yourself in court.
dSquib
@Jon: It’s the same when it comes to morality I think. The same frustration that comes from the lack of instant gratification provided by morality and our imperfect legal system is what drives the impulse to want to circumvent the law and ethics, as well as to celebrate vigilante justice. Which is part of why TV and movies love torture and vigilante justice so much.
dSquib
@Zifnab: I am eternally in your debt. Thank you.
stormhit
Joyner seems to be calling for some kind of International Criminal Court that the US could join. That’s clearly a pipe dream, though.
John Cole
Look, I wasn’t commenting on the quality of the arguments, just that they in fact existed, itself a refreshing change from the rest of the hysteria I’ve seen the last week.
Brick Oven Bill
Khalid will be able to represent himself and gain access to collection techniques. These are the methods by which we monitor the people who would light up shopping malls and things.
The reason Obama is so smart, is because he went to Harvard. The next post will detail the brilliance. The divinity.
Little Dreamer
@RaptureReadyAndLovinIt:
Orwell was so prophetic!
Bill H
What “actual arguements” do you see there?
The “war criminal” thing? Where is the war? There is no war; there are a bunch of criminals blowing things up and killing people. Joyner may want to give these thugs the dignity and glory they want by calling them warriors, but I don’t. They are sociopaths and criminals. They are common criminals committing uncommonly large crimes.
He is “incredible likely to go free” thing? Where did Joyner get his law degree. The torture is irrelevent except as it relates to evidence, and evidence obtained by torture can’t be thrown out if we don’t use it because we don’t need it. KSM confessed before he was even caught.
Joyner just likes the idea a a nation so powerful that it can throw people it hates in prison for life merely because it is powerful.
Demo Woman
Joyner wants KSM in international court because he was tortured. Wouldn’t that open the Bush administration to war crimes? Joyner and others suggest Military court because they don’t deserve our justice system. Does this mean military courts are not fair and balanced?
RaptureReadyAndLovinIt
@Brick Oven Bill:
So, what happened to the guy who usually writes your part?
This new guy is really not up to the BOB standard.
Little Dreamer
@Brick Oven Bill:
Crematory Bill pissing his pants is such a lovely sight!
The Grand Panjandrum
Great. No whining, screaming or wet panties and Joyner get a pass on a weak rebuttal. As El Cid notes this is only the outline of an argument but is not sufficient to render it effective. I do hope he revisits the issue. It would be interesting to read a well-reasoned argument against the civilian trials.
Brick Oven Bill
This is a calculated decision to close Gitmo by transferring these five guys to the custody of the legal system, where they will be abused, and then closing Gitmo. It all makes sense if you think about it. The promise to close Gitmo by 21JAN10 was Obama’s first executive act. Here is step one, a step that will take probably four years. Behold the brilliance of the grand Obama plan:
1. Islam is a great Religion because the President said so.
2. 2:10 *** 2:99 *** 2:104 *** 2:171 *** 3:28 *** 3:73 *** 3:48 *** 4:63 *** 4:89 *** 4:101 *** 4:144 *** 5:51 *** 5:57 *** 5:59 *** 5:60 *** 6:106 *** 8:55 *** 9:5 *** 9:28 *** 9:29 *** 9:30
3. Therefore, these five are simply men of faith, and innocent under the 1st Amendment.
Then comes step two. Charge these guys with another crime, and take it to another four year trial. It will go like this:
1. Islam is a great Religion because the President said so.
2. 2:10 *** 2:99 *** 2:104 *** 2:171 *** 3:28 *** 3:73 *** 3:48 *** 4:63 *** 4:89 *** 4:101 *** 4:144 *** 5:51 *** 5:57 *** 5:59 *** 5:60 *** 6:106 *** 8:55 *** 9:5 *** 9:28 *** 9:29 *** 9:30
3. Therefore, these five are simply men of faith, and innocent under the 1st Amendment.
Then see that Khalid is probably fifty and because of his disgusting, fat status, will probably die by age of seventy. So this process will likely have to be repeated three more times. Unless we start feeding Khalid some of those recipes that Anne Laurie posts, and then it might only take one or two more trials.
However many times it takes, the President can thus be successful in the first executive decision of his life by closing Gitmo by 21JAN10. This is his plan.
bago
Kidnapping, torturing, holding without trial and executing prisoners is what “the terrorists” do. Why does Joyner want to act like a terrorist?
bago
@Brick Oven Bill: hut hut hike?
Mr Furious
The only real reason I’d be worried about the trial is that the Bushies so tainted the evidence and fucked up the case that it would impossible to meet the burden of proof of a proper U.S. trial.
I have to trust that Holder has done the math on that front.
I’m not saying botched evidence should mean people are held indefinitely, but it should dictate consideration of the other options (tribunal, ICC, etc.)
I think a normal, criminal trial, sentencing, etc is certainly the best choice. But an acquittal would redefine the term “downside.”
RaptureReadyAndLovinIt
Yes. George W. Bush did in fact say so.
#
Remarks by the President on Eid Al-Fitr
The Islamic Center of Washington, D.C.
December 5, 2002
# “Over the past month, Muslims have fasted, taking no food or water during daylight hours, in order to refocus their minds on faith and redirect their hearts to charity. Muslims worldwide have stretched out a hand of mercy to those in need. Charity tables at which the poor can break their fast line the streets of cities and towns. And gifts of food and clothing and money are distributed to ensure that all share in God’s abundance. Muslims often invite members of other families to their evening iftar meals, demonstrating a spirit of tolerance.”
Remarks by the President on Eid Al-Fitr
The Islamic Center of Washington, D.C.
December 5, 2002
# “America treasures the relationship we have with our many Muslim friends, and we respect the vibrant faith of Islam which inspires countless individuals to lead lives of honesty, integrity, and morality. This year, may Eid also be a time in which we recognize the values of progress, pluralism, and acceptance that bind us together as a Nation and a global community. By working together to advance mutual understanding, we point the way to a brighter future for all.”
Presidential Message Eid al-Fitr
December 5, 2002
# “Islam brings hope and comfort to millions of people in my country, and to more than a billion people worldwide. Ramadan is also an occasion to remember that Islam gave birth to a rich civilization of learning that has benefited mankind.”
President’s Eid al-Fitr Greeting to Muslims around the World
December 4, 2002
# “Ours is a war not against a religion, not against the Muslim faith. But ours is a war against individuals who absolutely hate what America stands for, and hate the freedom of the Czech Republic. And therefore, we must work together to defend ourselves. And by remaining strong and united and tough, we’ll prevail.”
Press Conference by President Bush and President Havel of Czech Republic
Prague Castle, Prague, Czech Republic
November 20, 2002
# “Some of the comments that have been uttered about Islam do not reflect the sentiments of my government or the sentiments of most Americans. Islam, as practiced by the vast majority of people, is a peaceful religion, a religion that respects others. Ours is a country based upon tolerance and we welcome people of all faiths in America.”
Mark S.
Bullshit. There’s a ton of non-torture evidence that KSM was the key guy in a ton of terrorist attacks. I don’t know as much about the other guys, but this case is a slam dunk.
Which is why they are trying these guys first.
soonergrunt
@Demo Woman: Courts-Martial are fair. People do get acquitted at court-martial. In many respects, the defendent has more privledges at court-martial than he or she would in the civilian courts. Review is automatic for any conviction with a sentence over six months. Also, they routinely handle classified information, and they are on secure facilities.
Legalize
Yeah. It’s impossible to imagine how a federal court in NY will ever be able to pull off a trial involving national security issues. I mean, as far as YOU know, KSM-types have never ever ever ever never ever never been tried in federal court in the U.S. Why, I bet there aren’t any judicial procedures or case law explaining how such a trial should be conducted.
We’re DOOOMED!
soonergrunt
@soonergrunt: And I am distinguishing Courts-Martial from the bullshit Military Commissions system that shrub put together.
Calouste
Conservatives don’t want justice, they want witch trials and the inquisition.
Mnemosyne
Am I the only one a little indignant that Joyner thinks that the hundreds of innocent people killed in the crossfire of gang violence in this country every year are no big deal and we probably shouldn’t even bother to prosecute their murderers since they’re not as big and scary as Muslim terrorists?
chuck
Letting KSM go free is *exactly* what the right wing wants. It is the very thing they pray for, day after day.
It will be their cause celebre — no, their causis belli in fact — against what is left of the American justice system. They’ll ride the howls of outrage into power with the ambitions of crushing once and for all the system that allowed it to happen.
Paris
War criminal or mass murderer? I lean mass murderer therefore try them.
Sentient Puddle
@Demo Woman:
I’d drink to that.
catclub
mikeJ @ 17
Of course, to paraphrase Adams:
“The law, in its majestic equality, forbids the rich as well as the poor, to steal bread or to sleep under bridges.”
(Anatole France?)
Wag
Grover Norquist is all for trials in civilain court.
I have to say that this is the first time in my life that I agree with Brother Grover. He actually believes that we have a CONSTITUTIONAL TRADITION to uphold. Anyone who believes in an America that is more than the shell that Bush left us should agree.
Leelee for Obama
The bottom line here is that the Bush Administration had two choices when they started this. They could have taken the KSM level Al Queda prisoners in secret, tortured them for as long as they wanted, and then killed them, and almost no one would’ve known about it. And the ones who did wouldn’t have wanted to talk about it. Or, they could’ve brought the prisoners to the US with much fanfare, and hard-ons and treated them as prisoners and tried them in Federal Court for committing crimes on American soil, under conspiracy statutes. They would’ve been convicted and likely executed, and there would have been the end of it. Their problem was they wanted the fanfare and hard-ons, probably to be in keeping with the Toby Keith ethos, and still torture and execute them as necessary, to keep their Tough Guy cred. Trying them here for the crimes that were committed here is what is needed to end this nightmare and restore some semblance of adherence to the Constitution. Somehow, hard-ons and pants-wetting should be mutually exclusive exercises, I’d have thought.
Lex
@chuck: Sadly for the right wing, the odds that will happen approach zero.
Sly
Joyner’s critique is on procedural grounds, which of course makes it appear more reasonable than the stupidity we’re seeing coming out of the candidates for the 2012 Republican nomination. But his arguments are still nonsensical, because they’re founded on faulty assumptions about American and international justiciability and jurisdiction.
The first point is irrelevant. The United States has tried non-citizens, in civilian court, for crimes committed against American citizens more times than I care to count. The sticking point in justiciability, as far as I can tell, is whether the accused is being charged under criminal or administrative statutes, the biggest example of the latter being immigration proceedings. While deportation can result from the conviction of a non-citizen, actual immigration hearings and trials are treated as separate. In the case of KSM and Co., we’re dealing with violations of criminal law, the punishment for which can (and has) been carried out within the United States.
The second point is also irrelevant. Even if you could construe 9/11 as an act of war (keeping in mind that the term has a particular definition under international law), you would also have to make the case that the ICC has jurisdiction over the case. Because the US isn’t a signatory to the Rome Statute which created the court, any criminal proceeding would have to be referred by the UN Security Council. Even then, the ICC can only exercise jurisdiction when the crime was committed after the statute came into force, which was in 2002.
Subsequent irrevelent points:
Whether or not the trial will “devolve into a media circus” or that Mohammed may be acquitted has absolutely no bearing on the jurisdiction of the case. The purpose of military tribunals, ostensibly, is to ensure that sensitive intelligence data and gathering methods do not enter the public record. That is the only constitutional argument for having secret trials at all. If the Justice Department, after examining the cases, has made the determination that national security would not be compromised by a public trial in civilian court, than a public trial in civilian court becomes the only appropriate jurisdiction for such a trial.
Aside from the fact that we don’t change trial venues because the prosecution might have a better chance at obtaining a conviction in one area over another (at least not officially), the Exclusionary Rule has exceptions for allowing non-tainted evidence to be used in criminal proceedings where tainted evidence has been obtained. No, the prosecution could not use any confession obtained under physical or psychological coercion, but that does not preclude them from using evidence obtained through legitimate means.
Punchy
Holy shit, Cole. You call this an actual argument? He thinks the gov’t’s only evidence is something KSM said while getting his nutsack electrified, so therefore this “he’s a free man!” argument is legit?
In a likewise “actual argument”, there’s a chance he could run for Senate, go on American Idol, and open a brewery. Because I have a shitload of stupid, twisted, and wrong logic to claim so. Let me pen a blog post first, to make it look legit.
Neutron Flux
@soonergrunt: It is interesting to me how many career military lawyers will have nothing to do with these military commissions.
They are too well schooled in Courts Martials to buy into this bullshit.
El Cid
If it were the correct jurisprudence and venue to try the suspect(s) in a war crimes trial in the ICC, as opposed to a domestic U.S. court, how would this avoid charges of evidence being tainted by torture and the possibility of he / them not being convicted?
MattR
Since everyone else is commenting about this quote;
Am I naive in thinking that KSM will definitely take advantage of the opportunity to testify/rant in court, regardless of the strength of the prosecution case? And that he will happily admit/brag about his role in the attacks with a minimal amount of questioning (it’s not gonna take Tom Cruise in a Few Good Men)?
soonergrunt
@chuck:
To say nothing of their causus belli against whatever country of swarthy brown peopleto which KSM would then go. A war to be fought by others, of course.
Bootlegger
@joeyess: Much less elude those who claim to be “strict constructionists” when it comes to the Constitution. Only Congress can declare war, not the Executive, no declaration, no war, therefore no war criminal. It doesn’t get any more strict-constructionist than that.
Dork
@chuck: This is a very sick thought, but very true. The Right NEEDS this trial to go badly, for KSM to be set free/escape, etc. They only care about politics, and a free KSM is horribly dangerous to the US, but great for the Republicans.
Expect the loonier RW sites to be cheering any prosecutorial misstep or setback. It will be sick to read.
David in NY
John, the commenters are right. There’s no there there. These are absurd excuses for arguments: “First, these men are not citizens of the United States. Second, they’re accused war criminals. They simply should not be tried in U.S. civilian courts. … Aside from the virtual certainty that the trial will devolve into a media circus, there’s an incredibly good chance that Mohammed and his comrades will go free.”
In all modesty, let me quote myself with respect to the last “argument:”
“What I hate is the wingnut arguments, ‘They might be acquitted!!,’ or ‘They might not get the death penalty!!’ Well, I suppose that’s so. It’s also so in a military tribunal. Military tribunals are not fixed, either—they require a principled decision at the end. The only proceeding that doesn’t require such a proceeding is summary execution, which is what [the wingnuts] really want.”
Mnemosyne
@MattR:
Of course he will. So did Eric Rudolph. So did Charles Manson. So did Zacarias Moussoui. Were we supposed to deny them a trial because they were self-aggrandizing, self-justifying assholes?
Xenos
@Mnemosyne: To plagiarize from myself in the OTB comments:
JD Rhoades
@joeyess:
Exactly. A “war” takes place between states. You really want to elevate Al Quaeda to state status? I’m sure they’d be overjoyed.
The wingnuts say “well the terrorists consider themselves at war with us.” So fucking what? We don’t let them define the rules. if the Mafia decides to call bank robberies “acts of war” they don’t get tried in military courts.
JD Rhoades
@David in NY:
In fact, I read recently that the military imposes the death penalty much less frequently than the civilian courts.
Sly
It doesn’t.
David in NY
@JD Rhoades
Thank you for that note.
Mnemosyne
@Xenos:
I know, I stole the idea from you. ;-)
David in NY
“Look, I wasn’t commenting on the quality of the arguments, just that they in fact existed, itself a refreshing change from the rest of the hysteria I’ve seen the last week,” says John.
Sorry I missed John’s comment earlier. But these so-called “arguments” are actually the arguments I’ve heard being repeated, with the added, “Be scared. Be really scared!” And, I think the commenters are correct, if you reflect for a moment — there’s nothing to them.
Grumpy Code Monkey
@soonergrunt:
This is the only argument I’ve heard from the right against a civilian court that actually holds a few drops of water; that some of the evidence against KSM is classified and cannot be released in a civilian court.
Personally, I think that’s a bit of a smokescreen; I mean, I have no doubt that the statement is true, but I suspect it’s being used as an excuse because the non-classified evidence is either extremely weak or tainted by the use of torture. They know KSM will be set free because they didn’t bother with gathering evidence before strapping him down and almost drowning him several hundred times.
The fear isn’t KSM being free to cause more mayhem; the fear is the final exposure of the vast galloping incompetence of the entire Bush administration.
joeyess
@Bootlegger: Imagine that. And me being a DFH liberal, to boot! Whodathunk?
joeyess
@Bootlegger: ayup.
Sanka
Joyner:
Obama and his merry band of left-wing agitators who control the liberal flank of the Democratic party better be 100% certain that the vermin do not go free. Try running on that platform in 2012…”Voter for Obama/Biden…we gave the terrorists a fair trial”
Here’s to ensuring that the Democrats lose whatever credibility they stand to gain on national security in the era of Obama, for at least a generation. Here! Here!
kay
He’s just shooting in the dark. He has no basis to say either of those things.
“Incredibly good chance” is just ridiculous. I haven’t read a single other opponent of trials who goes that far, nor would they, because no one knows what the state has. I just don’t think it’s credible to assert that the AG is rolling the dice here. It’s almost an accusation of bad faith. The prosecutor simply wouldn’t take that risk. He doesn’t have to.
Most (rational ) opponents are saying the process will be difficult (and it will) and will involve uncertainty (true, but so do tribunals, and nearly any other action). They aren’t going over the top like this, with bold assertions that the state is going to LOSE to the extent that guilty GO FREE.
Why is he actually opposing this? Anyone know? It reads to me like another thinly-veiled political argument for the War On Terror, not commentary on this trial.
Sly
@Grumpy Code Monkey
That argument becomes disingenuous as soon as the person making it understands the rules of evidence. If some evidence, if disclosed, would reveal classified information then you simply don’t admit that evidence. The same is true for evidence obtained illegally. Just because some evidence is inadmissible doesn’t mean that all evidence is, and presumably there is enough evidence against KSM that is both non-sensitive and legitimate under the Exclusionary Rule to obtain a conviction. The man did admit, before capture, to his role in the attacks.
Sly
@Sanka: Your preference for terrorists to go free if it makes the President of the United States look bad has been duly noted. You patriot, you.
J.D. Rhoades
Don’t worry, we are. The fact that you claim you’re not means you’re either dishonest, crazy, or mind-blowingly stupid.
kay
This is Greenwald’s great point:
“Spain held an open trial in Madrid for the individuals accused of that country’s 2004 train bombings. The British put those accused of perpetrating the London subway bombings on trial right in their normal courthouse in London. Indonesia gave public trials using standard court procedures to the individuals who bombed a nightclub in Bali. India used a Mumbai courtroom to try the sole surviving terrorist who participated in the 2008 massacre of hundreds of residents.”
I’d like a response to this from opponents. Is there something uniquely terrible and fragile about our justice system that we need extraordinary measures to accomplish this? It’s like an admission that we’re incapable of performing the most basic functions of civil society.
Really, if I hear “media circus” one more time I am going to puke. We’ve now subverted our whole system to the media’s whims and stupidity? They make the rules? They’ll do SUCH a crappy job, we can’t hold a trial?
J.D. Rhoades
Interesting AP story on the difference between military and civilian courts here.
Some highlights:
There hasn’t been a military execution since 1961.
Before a military execution can be carried out, the president must personally approve.
soonergrunt
@Grumpy Code Monkey:
That, sir, is the real issue here. Civilian courts have dealt with classified information before–all of those cold war spies that were convicted of espionage come to mind immediately. A civilian court is better for the simple reason that from the moment the court is gaveled into session, it sets the tone that these men are nothing more than common criminals.
As I noted though, there is adequate precedent for the use of courts-martial, and the logistical issues have, for the most part, already been worked out.
MattR
@Mnemosyne: I probably should have been clearer but that is what happens when I comment when I should be working. My point was that there is virtually zero chance that KSM would go free regardless of the quality (or admissibility) of evidence that the state has since KSM will surely take the stand and incriminate himself.
Svensker
@Leelee for Obama:
Thanks for that image.
Belafon (formerly anonevent)
@Sanka:
There was a time, right after we won our freedom from the British, where people knew that this would be the right thing, because they knew that a government with the ability to lock someone up without reason, and keep them indefinitely, was the most dangerous thing in the world. Guess that time is over.
Then again, why do you want to give the most dangerous president ever the ability to lock people up forever?
Catsy
Add me to the chorus of people utterly unimpressed with Joyner’s arguments. His points seem to be that we shouldn’t try KSM in civilian courts because:
1. He’s not a citizen.
2. He’s very likely to go free.
3. He’s a war criminal, not an ordinary criminal.
4. It’ll be a media circus.
5. We’ve been holding him based on his status as a terrorist, not a criminal, and need to prosecute him as such.
I call unrelenting bullshit on every single one of these assertions. And that is what they are–every point he’s making amounts to an argument by assertion, filled with question-begging and other tasty fallacies. To wit, respectively:
1. Whether one is an American citizen has nothing whatsoever to do with whether one is entitled to due process under the law when accused of a crime. This is a firmly established legal principle, the willful ignorance of which on the right is staggering.
2. This is delusional, uninformed fantasy. It will never happen. Josh Marshall had a pretty good post on this, but it ought not to pass the smell test for anyone with a functioning brain.
3. This distinction has no legal basis, and even if true does not prevent us from charging him with a civilian crime in a civilian court.
4. Who gives a shit?
5. Again, a distinction with no legal basis. The Bush administration’s extralegal practices and nonexistent “enemy combatant” categories are no more legally relevant than Nixon’s assertion that it’s not a crime if the president does it. Nor does the Bush administration’s bungling obligate us to continue the same failed policies.
Joyner’s post = rebuttal FAIL. The only difference between Joyner’s nonsense and the noxious garbage at Redstate is that Joyner manages to avoid resembling a howler monkey hurling feces at the monitor.
Grumpy Code Monkey
@Sly:
We are talking about wingers, here. This is the 1% generation; if any of the evidence is tainted, all of it must be tainted. If any of it’s classified, all of it must be classified. They can’t deal with abstracts like “some”.
Mnemosyne
@MattR:
Ah, okay. It sounded a bit like the pants-wetting “OMG he’ll make a speech and then we’ll all be DOOMED!” that I keep hearing on the right.
Personally, I’m looking forward to KSM making a speech in court because he will inevitably make himself the laughingstock of the world.
licensed to kill time
@Mnemosyne:
He’ll probably yell “Toga! Toga! Toga!” Or maybe the mashed potato zit bit.
After being waterboarded 183 times, it might be all he’s got.
noncarborundum
@Sanka:
Okay, stopped reading right there. This is grade-A, unadulterated delusion. Ask any actual member of the liberal flank of the Democratic Party.
Mr Furious
@soonergrunt:
No, NO. A thousand times, NO!!
These guys are super-villains! Like Magneto [video]! Or Zod [video]! And no prison on U.S. soil could possibly hold them!
[crossing my fingers on the formatting….]
Little Dreamer
@Sanka:
Newsflash Sanka, 9/11 DIDN’T change everything.
Little Dreamer
@JD Rhoades:
Wingnut’s secret thoughts: “we aren’t going to get our activist judge and activist jury who will hang these bastards pronto with nary a morning of arguments”.
Hob
@Leelee for Obama:
The one makes the other more difficult and uncomfortable, but it can be accomplished with enough effort. Don’t underestimate what a determined man can accomplish!
drillfork
KSM is getting a trial because he’ll be convicted. It’s all a show that we’re putting on in the hopes that the rest of the world will then ignore the thousands others we have rotting away forever at Guantanamo and Bagram. The end…
RememberNovember
@RaptureReadyAndLovinIt:
Just like when Sullivan goes on vaycay.
RememberNovember
@Grumpy Code Monkey:
“Absence of evidence is not evidence of absence!”
“We know he has WMD’s we just haven’t found em yet!”
and other classic hits from the Bush era…free on iTunes!
Catsy
@Mnemosyne:
In the process incriminating himself so thoroughly that the DOJ could probably come to court with nothing other than “he did it!” as evidence and still be assured of a conviction. This guy’s proud of what he did. He’ll boast of it given the slightest opportunity.
Seriously, this is one of the things about the batshit insanity on the right that I just cannot grasp. Why is it a bad thing that KSM might get to bloviate in court? How can anyone with a single functioning brain cell believe both that KSM will be able to upset people by bragging about what he did and that he will then somehow fail to be convicted by his own words? He wants to be a martyr. Give him his wish.
soonergrunt
@Mr Furious: Looks like it worked. I’m at work, so I can’t tell for sure, though.
Tsulagi
While Joyner’s post is refreshingly absent the Beckian sobbing and Depends clutching and filling favored by wingnuttian warriors like RSSF Commander EE, still doesn’t hold water.
I’d be fine with KSM and others being tried in a military tribunal. Actually, as soonergrunt commented, if those tribunals were modeled after courts martial, he’d likely have more due process than may be available today in civilian court.
A few highlights I recall from the “20th hijacker” Zacarias Moussaoui trial in the evil liberal civilian justice system…Judge refused his choices of Muslim attorneys instead appointing attorneys citing he would have no opportunity for a circus or attempt at putting the U.S. on trial. A pouting Moussaoui then said he would represent himself. Judge told him that would be stupid, but that he had a right to be so.
Now the real gems of this trial. The government argued for national security reasons Moussaoui or attorneys representing him should not have access to classified incriminating or even exculpatory information. “Liberal” judge agreed. But then prosecutors went a little too far for her when they denied defense questioning of AQ witnesses they had in detention. Prosecutors said they would submit defense questions to witnesses then provide summaries of their answers to the court. Trust them.
Judge called bullshit on that one in a ruling. Right to confront your accusers and all that. However, later the 4th Circuit reversed her, and also held denying defense review of classified information if the gov claims national security was all good. Later, the SCOTUS declined to hear an appeal of the 4th’s decision.
So currently, in the “liberal” civilian court system which wingnuttians just know is as much an enemy of the republic as bin Laden, KSM could be told to fuck off on choosing his own attorney, told neither he nor his attorney can see evidence if it is designated classified, and be told that impartial government prosecutors will question his witnesses for him and give the defense summaries of what they said.
There was some good black comedy in that case. Moussaoui was a prosecutor’s wet dream. You had a fat radical Muslim terrorist WITH French citizenship. That alone post 9/11 would have gotten him more than halfway to the gas chamber. Coupled with that, this guy everyone conceded was loony was prone in court to saying “Death to the USA” and “Long live AQ and bin Laden.” Then the loon was representing himself. You would think you could call that a slam dunk for the gov. But due to monumental incompetence in all things Bush admin, that case dragged on and on and on. At times the French Muslim loon was whipping their butts. Finally, the torture by stupid got to the loon so he gave up, changed his plea to guilty to end the pain, then a jury gave him life without parole instead of the death penalty saying the gov hadn’t proved their charge Moussaoui was part of 9/11. And so far, counter to the really smart wingnuts who see the big picture, he hasn’t walked out of the Super Max prison where he’s been held, taken a bus to a U.S. embassy in Iowa and applied there for citizenship.
burnspbesq
@Wag:
This. However, I am sending this comment from the afterlife. My head exoded when I read Norquist’s statement.
burnspbesq
What I would like to know is whether Jane Hamsher and Marcy Wheeler are going to live-blog the trial. They did a better job of making sense of the Scooter Libby trial than the entire MSM combined.
wag
I agree 100%.
…and it only took me a few hours to put my head back together after it too exploded. I posted the link in my first comment to this post (see #5 (way) above, as well as #63), and you’re the first one to actually comment on one of the most interesting (IMHO) episodes of the day. Thanks
bjacques
They can’t put him on trial because he’ll make a speech that would make Howard Roark weep with envy, and the jury will have to find him not guilty or else the country itself stands guilty of being run by moochers and second-handers.
Remember, this is a terrist so superpowerful that he causes patriots to shit themselves just by being on the same continent as them. He’s a human Brown Note.
No, KSM must be tried by the elders of Krypton and dispatched to the Phantom Zone post-haste.