Trials

But imagine KSM being found not guilty, which is a possibility. What happens then? According to Democratic Senator Jack Reed, “under basic principles of international law, as long as these individuals pose a threat, they can be detained, and they will.” Come again? You mean if KSM is acquitted he will still be detained? Yes indeed, according to Senator Reed. He will not be released, “because under the principle of preventive detention, which is recognized during hostilities,” we can continue to hold KSM.

Well, now. It seems to me as though President Obama and Attorney General Holder need to be asked whether they agree with Senator Reed. If not — if they believe that the proud, self-confessed mastermind of the deadliest attack in history on the American homeland should be able to walk free if acquitted in this trial — then Obama and Holder should certainly say so. If KSM were acquitted, the president and his attorney general should proclaim from the rooftops that Mohammed is a free man, found innocent in a civilian court of law, and then allow voters to render a judgment on their decision.

If, on the other hand, Obama and Holder agree with Senator Reed, they should state that as well.

via Commentary.

Here’s the deal.  The purpose of a criminal trial is not some administrative thing that the state does to decide what they are going to do.  They are there to allow the accused to defend himself.  The burden is on the state, and if they fail to carry that burden, then the accused must go free. That’s the point.  That’s where everything in our court system leads, from habeas corpus to the Fifth Amendment protections against double jeopardy.

What Holder and Obama are doing is taking the chance of either setting KSM free, or making a mockery of our court system.  True, the system has plenty to mock in it already, from testilying cops to rubber-stamp warrants to odious victimless crime convictions.  But this choice — letting KSM go or cutting the heart out of the court system — is a choice that they willingly took upon themselves.

When Obama spouts BS like, “it will all be OK when we execute him” he’s whistling past the graveyard.  If it’s a guaranteed conviction, it’s a kangaroo court worthy of Stalin.  Anyone who has studied the Nuremberg trials knows that there was no certainty that the Nazis would be convicted.  The government will have to prove its claims beyond a reasonable doubt.  That means revealing the ways that we got to him, which is an intelligence ding at best.  Protections like Miranda principles will begin to enter.  Has KSM been given access to all possibly exculpatory evidence?  Really?  Has he been given access to a lawyer in a reasonable amount of time?  Does that lawyer have a chance to interview anyone who might have testimony that clears him?  How about the Delta operators who picked him up?  The informant in Afghanistan or whereever who tipped us off?

KSM has a lot of defenses he can try, and he only needs to succeed with one of them.  This is a terrible, horrible lapse in judgment.  This has to be a no-mistakes, no hitter win, and nothing that this administration (or the last one) has done inspires me with confidence that they are capable of that.

Update: Also take a look at this:

If I were KSM’s lawyer, I’d argue the following:

1. That his Fourth Amendment rights were violated by letters and conversations that the government intercepted without a search warrant.

2. That his Fifth Amendment rights against self-incrimination were violated if the government attempts to use statements made before he was read his Miranda rights or after he was waterboarded (since the Obama administration calls it torture).

3. That his Sixth Amendment rights were violated by not providing a speedy trial, that the Speedy Trial Act (a federal statute) has also been violated, and that he has been denied adequate legal counsel.

4. I would also say he cannot get a fair trial in New York and move for change of venue.

5. I would challenge the admissibility of any evidence that was unsecured even for an hour, challenge the authenticity of any offered evidence, insist on his Sixth Amendment right to confront every witness against him, including the capturing officers, interrogators, guards, transport personnel, and whoever else I can think of.

6. I would raise objections of circumstantial evidence, hearsay, the witnesses’ integrity, and every other conceivable objection to the evidence and every procedural step.

And that’s just what an ethical defense attorney would do.  Past history has shown that there is no guarantee that his defenders will be ethical.

4 Comments

  1. […] No real point in having a trial if he’s going to be detained even if acquitted. […]

  2. R says:

    This is a really interesting post and I agree with you. One thing I am unclear on, though, is if the U.S. Bill of Rights applies even to foreign born defendants tried in the United States?

  3. Phelps says:

    The Bill of Rights is not tied to citizenship, but it is tied to jurisdiction. When an illegal immigrant ends up in US court, they still get full rights, even though they aren’t a citizen.

  4. […] The Everlasting Phelps: What Holder and Obama are doing is taking the chance of either setting KSM free, or making a mockery of our court system. True, the system has plenty to mock in it already, from testilying cops to rubber-stamp warrants to odious victimless crime convictions. But this choice — letting KSM go or cutting the heart out of the court system — is a choice that they willingly took upon themselves. […]