Patterico's Pontifications

11/19/2009

KSM Show Trial Watch: The Evidence Mounts

Filed under: General — Patterico @ 6:35 am

Eric Holder, reassuring the mother of a 9/11 victim that trying KSM in federal court is the right thing to do:

There are reasons why bringing this case in an Article III court when it comes to the admissibility of certain evidence is really the right way to go and really maximizes our chances of getting a successful outcome.

This statement comes at the very end of this clip. (An “Article III” court is a standard federal court under Article III of the Constitution.)

Although Hot Air and others have linked the clip, I haven’t seen anyone else focus on this particular statement, which I found very revealing. Commentators (including myself) have been arguing that Holder and Obama chose federal court because they thought they could win anyway, and make some Grand Point about due process. But this quote indicates that Holder and Obama actually think they have a better chance in federal court.

Combine that with Holder’s frank admission (which he quickly backed off of) that he might not choose this forum if he were not confident of success:

If I was concerned about the forum not leading to a positive result or if I had a concern — a different concern, you know, we would perhaps be in a different place.

And you can see that what we have is an administration that is choosing where to try the detainees, not based on some principle or neutral protocol (as they claim), but based on where they can win. They’re rigging the game.

And if they lose, they won’t let him go anyway.

This is just further evidence that the KSM trial will be a show trial.

P.S. I don’t want to make this argument. I want the world to consider the trial of KSM legitimate. And as I said before, I do like the concept of treating him like he’s nothing special.

But the way Obama & Co. are running this show isn’t about justice. I criticized the Bush administration when I thought they were stacking the deck and implementing unfair procedures, and I’m going to criticize Obama when I see him doing it.

UPDATE: Turns out Glenn Greenwald made this exact point yesterday, and has even more damning quotes from Holder, including this one:

Courts and commissions are both essential tools in our fight against terrorism . . . On the same day I sent these five defendants to federal court, I referred five others to be tried in military commissions. I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law. . . . At the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is a federal court.

I mean, he’s making no bones about it.

146 Comments

  1. What we will put on display is the Chicago version of justice with a cast of characters from the CIA, FBI, George Bush, Karl Rove, Dick Cheney, what the hell let’s throw in Rumsfeld for good measure…Oh and that guy, what’s his name? KLM, no that’s an airline..KSM that’s who should be there too for the diversity crowd. Hasan can testify for the defense as to the sanity of KSM and the insanity of the infidels, apostates, and non-believers prosecuting the case.

    The only question is who will end up in the river with a cadillac parked nearby? Barnum and Bailey couldn’t have scripted a better “Greatest Show On Earth.”

    Comment by vet66 (9d1bb3) — 11/19/2009 @ 6:52 am

  2. Of course it’s a show trial. In real trials, venue is not chosen to highlight the scene of a crime; and the president doesn’t make proclamations about the strength of the evidence, or prejudge the outcome and sentence.

    The most outrageous thing is there was no need of this.

    Comment by Brother Bradley J. Fikes, C.O.R. (0ea407) — 11/19/2009 @ 6:53 am

  3. Patterico, here is a quote from Obama taken from

    Politico:
    ‘During a round of network television interviews conducted during Obama’s visit to China, the president was asked about those who find it offensive that Mohammed will receive all the rights normally accorded to U.S. citizens when they are charged with a crime.

    “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him,” Obama told NBC’s Chuck Todd.
    When Todd asked Obama if he was interfering in the trial process by declaring that Mohammed will be executed, Obama, a former constitutional law professor, insisted that he wasn’t trying to dictate the result.

    “What I said was, people will not be offended if that’s the outcome. I’m not pre-judging, I’m not going to be in that courtroom, that’s the job of prosecutors, the judge and the jury,” Obama said. “What I’m absolutely clear about is that I have complete confidence in the American people and our legal traditions and the prosecutors, the tough prosecutors from New York who specialize in terrorism.” ‘

    IANAL; however, you are and so I seek your counsel. Isn’t our president poisoning the jury pool with such statements? I mean this is the most powerful guy on the planet and he is saying that KSM is doomed in our own US court system! And isn’t part of Obama’s calculation in trying KSM in open court to show the world and especially Muslims how fair and open the US is especially compared to how Bush would have handled this (in a military court)? Also in our system of justice, isn’t a man, even KSM, presumed to be innocent until proven guilty? And here BO is proclaiming KSM guilt and ready to be put to death? All this amounts to is a show trial it seems to me. I am interested in your take on this. Thanks in advance for your response. Oh and just for clarification, what I am trying to point out is how much of a fool Obama seems to be. Everyday there is more and more evidence of this.

    Comment by BT (74cbec) — 11/19/2009 @ 7:00 am

  4. ya know, HRH is always on about going to exotic distant lands and seeing the sights, an idea i am less than enthused about, even if we *could* afford it these days.

    now that we live in a third world country, i don’t even have to apply for a passport. %-)

    Comment by redc1c4 (fb8750) — 11/19/2009 @ 7:07 am

  5. If one of the most-watched trials in history has a pre-ordained outcome, ordered by the POTUS….exactly what are they getting away with in lower courts?

    Comment by J (2946f2) — 11/19/2009 @ 7:09 am

  6. They are celebrating in Iran and China.

    Announcing a verdict and sentence before a trial is okay now. Even the president and attorney general of that satan hell-hole do it.

    Show trials for all!

    Comment by MU789 (4e85ea) — 11/19/2009 @ 7:17 am

  7. This whole think is already !!!

    Eric Holder should have recused himself as his law firm has been the defense lawyers for many of the Gitmo detainees.

    Also, who is acting according to what legal rules? If this is standard case using established precedents, then all the cases have to be thrown out because the defendants were not Mirandized and were not questioned with a lawyer present.

    Comment by PCD (1d8b6d) — 11/19/2009 @ 7:20 am

  8. There should be a “choose your deleted expletive” before the triple exclamation points in the above post.

    Comment by PCD (1d8b6d) — 11/19/2009 @ 7:21 am

  9. I think it was Professor Althouse who made the point that Holder is either totally incompetent, or simply lying. Believe it was Andy McCarthy who indicated there is no evidence which would be admisable in a civil court which would be inadmissable in military tribunal.

    So in one case Holder knows for a fact what is not so, or in the other to willfully lying. In either case, Holder’s only honoralbe recourse is immediate resignation.

    Comment by DavidL (02e14f) — 11/19/2009 @ 7:22 am

  10. And this is how we build credibility across the world, to show we can have a dictatorship without calling it that, too? Fixed trials, fixed elections, making “the” people dependent on government, destroying the lives of political opponents?

    When do the store shortages and famines start? Will the electrical and water supplies for only part of the day come first?

    Comment by MD in Philly (227f9c) — 11/19/2009 @ 7:25 am

  11. Eric Holder should have recused accused himself …Comment by PCD

    Patterico, do you havy any idea, and can you say if you do, how in the world will the government get evidence admitted, not have a dismissal?

    Comment by MD in Philly (227f9c) — 11/19/2009 @ 7:32 am

  12. “the admissibility of certain evidence”
    Given Holder’s firm’s positions in defending terrorists, I’d opine that a more direct/accurate statement would have been – “the inadmissibility of certain evidence”.

    “a successful outcome.”
    Show trial with Bush etal pillored as many recognize, but also a precedent setting criminalization of terrorism as Holder, ACLU, etc have advanced for two decades. Definitely an outcome they’re looking for.

    Comment by MDr (fd1f4b) — 11/19/2009 @ 7:34 am

  13. Aye, this is bad news for all. Lindsay Graham’s questions about mirandizing Bin Laden is just one of the problems.

    In the end, though,the main issue is always going to be the advisability of extending constitutional protections to unlawful enemy combatants. At some point, the cost of providing court time versus the cost of a single bullet at time of capture (as permitted by Geneva) will become a determining factor in American treatment of enemies out of uniform.

    I wonder if Holder is in favor of more summary executions on the battlefield, because that’s the road he’s taking.

    Comment by Hadlowe (060b5d) — 11/19/2009 @ 7:40 am

  14. While the statements made by POTUS and AG are asinine from a PR point of view, there is nothing ethically wrong with a prosecutor, within the limits of the rules, arranging the case to give the prosecution the best chance of success.

    Prosecutors do this all the time. They decide whether to include the whole gang in one prosecution or go for separate prosecutions of individuals.

    They pick the venue that they think will be most sympathetic among multiple venues where they are available (i.e. the crime took place in several different places — often true in conspiracy cases.)

    They add or drop particular charges to make the whole case look more convincing. (E.g. a gang executioner was responsible for 10 deaths. We have really goods evidence on 5; the other 5 are shaky. A good prosecutor might drop the second 5 to have an overall stronger case.)

    Of course, one might question why he chose NY over Virginia. The Pentagon was also a target of the 9/11 attacks, so the case could be venued there. That jury pool is generally thought more likely to give the death penalty than NY.

    Comment by Bored Lawyer (44ef84) — 11/19/2009 @ 7:47 am

  15. The trial should not be held in a criminal court because of the dangers to civilians necessarily put in harms way.

    Forget the lovely political martyrdom parade – that’s bad enough.
    The denial of the jihadi war against the US could be fatal to a lot of innocent people.

    The courts will be subject to attack, the city, and if not the city, then other targets in the US all predicated on the show put on in NYC.

    Good luck getting a jury. Some people love their families and don’t want them murdered.

    And they will be, by hordes of jihadis out for blood.

    I don’t see a lot of attention to this point, vs the abuse of the criminal justice system that is so troubling – but KSM doesn’t belong in a civilian court because of the potential harm to civilian pecualiar to the nature of his “crimes” and the cause of his fellow travelers.

    Comment by SarahW (692fc6) — 11/19/2009 @ 7:50 am

  16. The trial should not be held in a criminal court because of the dangers to civilians necessarily put in harms way.

    Forget the lovely political martyrdom parade – that’s bad enough.
    The denial of the jihadi war against the US could be fatal to a lot of innocent people.

    The courts will be subject to attack, the city, and if not the city, then other targets in the US all predicated on the show put on in NYC.

    Good luck getting a jury. Some people love their families and don’t want them murdered.

    And they will be, by hordes of jihadis out for blood.

    I don’t see a lot of attention to this point, vs the abuse of the criminal justice system that is so troubling – but KSM doesn’t belong in a civilian court because of the potential harm to civilian peculiar to the nature of his “crimes” and the cause of his fellow travelers.

    Comment by SarahW (692fc6) — 11/19/2009 @ 7:52 am

  17. Show trial? What are you talking about? KSM will, as they say, get American justice. The same kind of justice that we saw in Kelo, and countless other cases. The same kind of justice that your new government would like for YOU to get in coming years in which thought crimes, enhanced sentencing, and arranging things to make sure we get “the best outcome” will be commonplace.

    And who cares? We don’t pay attention to the judicial slots on the ballot, and we don’t hold legislators accountable for their judical approvals or presidents for the appointments, and we don’t (as a society) fret that much about what the Justice Department is up to.

    We have sown the wind, and we’ll reap the “enhanced” wind.

    Comment by Gesundheit (47b0b8) — 11/19/2009 @ 7:52 am

  18. I wonder if Holder’s law school practiced affirmative action, allowing an incompetent to both get in and then graduate, so that he could then benefit from affirmative action on the job to get to where he is now.

    He doesn’t seem to understand his own profession very well.

    It is frightening though, that we could have soldiers required to read people miranda rights while still under fire -”Where are your buddies, what kind of guns do they have?!?!”. It is also frightening that they are giving illegal combatants the right to discovery and to cross examine military personnel and CIA folks in open court. We have the right to shoot illegal combatants in the head right there in the field. So now we have this crap?? Barak and Holder should also have to pay the court and security costs personally.

    Comment by SMARTY (eed5d4) — 11/19/2009 @ 8:03 am

  19. Lindsay Graham’s questions about mirandizing Bin Laden is just one of the problems

    Slightly premature.

    Evidence against KSM and his co-conspirators could all be thrown out in a federal court because they weren’t Mirandized when they were seized. Taped declarations before capture may be admissable.

    Comment by steve (91a953) — 11/19/2009 @ 8:19 am

  20. A prosecutor seeking a venue where he has the best chance of conviction? Heavens! What is this world coming to?

    Comment by Myron (6a93dd) — 11/19/2009 @ 8:25 am

  21. Not sure what good it would do to call for Holder’s resignation, or Barcky’s for that matter. They are simply following the way they have always done things. We knew who Holder was from his time in the Clinton admin. He is remaining true to form.

    Comment by JD (584916) — 11/19/2009 @ 8:26 am

  22. “Evidence against KSM and his co-conspirators could all be thrown out in a federal court because they weren’t Mirandized when they were seized. Taped declarations before capture may be admissable”

    Miranda only covers the defendants’ own statements and admissions. It doesn’t cover independent evidence developed against the defendant — whether it was before or after the interrogation. (It has to be truly independent, though. If the un-Mirandized statement led the prosecution to other evidence, then that too would be excluded.)

    Comment by Bored Lawyer (44ef84) — 11/19/2009 @ 8:29 am

  23. Myron, once again, your act where you pretend not to get the point got old quite a few years ago.

    Comment by SPQR (26be8b) — 11/19/2009 @ 8:33 am

  24. SPQR: So, what’s the point?

    Comment by Myron (6a93dd) — 11/19/2009 @ 8:36 am

  25. Kabuki theater – this is a dangerous farce

    Comment by Horatio (55069c) — 11/19/2009 @ 8:41 am

  26. Kabuki theater – this is a dangerous farce

    I think critics of Holder, before they continue to pursue a “kitchen sink” approach to bashing his decision, should settle two things in their mind:

    1. Do they want to see KSM convicted?

    2. Do they want him to have more or less legal protection and rights?

    On the one hand, people were complaining that KSM was being tried here and not before a military commission, which, legally has fewer protections.

    On the other hand, people now seem to be saying that his near-certain conviction here is not fair to KSM, and this whole exercise is a “show trial.”

    Make up your mind.

    Comment by Myron (6a93dd) — 11/19/2009 @ 8:48 am

  27. But I should however, note that I always enjoy when people use the words “kabuki theater.” It’s a fun expression.

    Comment by Myron (6a93dd) — 11/19/2009 @ 8:51 am

  28. What legal authority does Eric Holder have to demand/take custody of Prisoners held by Department of Defense. He has none. Any attorneys want to weigh in on this? These cases have so many levels of appeals it will set precedence and that is what this case is all about. Changing the laws in this country.

    Comment by Sanmon (319c0c) — 11/19/2009 @ 8:53 am

  29. Sometimes one wonders if some people intentionally miss the clearly stated points.

    Comment by JD (3da421) — 11/19/2009 @ 8:53 am

  30. ACtually, I should amend my last statement. The Supreme Court has held that the “fruit of the poisonous tree” doctrine does NOT apply to failure to give a Miranda warning, so long as the statement was voluntary. U.S. v. Patane.

    That means that if they failed to give him a Miranda warning, you cannot use the statement itself against him. But if it lead to physical evidence (e.g. the location of the gun used to commit the crime, later tested by ballistics after retrieval) the gun can still be used as evidence.

    Comment by Bored Lawyer (44ef84) — 11/19/2009 @ 8:54 am

  31. Quite a few legal niceties have been dispensed with here.

    Things like the right to be informed of charges against oneself, protection from cruel and unusual punishment, equal protection under the law – even the right to accuse others of criminal behaviour…

    After having threatened wives and children as part of the torture process, we are now at a point that any confession given in court could well be under duress. The justice system has been so badly compromised in so many ways.

    I’m not sure how there will be a fair trial under any venue.

    Comment by edwin (d93ac9) — 11/19/2009 @ 8:59 am

  32. Make up your mind. Comment by Myron

    If you are tried in our court system then you should be afforded ALL rights under the our laws.

    This administration says this is about showing the world how great our legal system is. The world already knew this. Only this is not about this, it is about showing the world how we will adapt to Transnational law, Shari Law, and ICC laws.

    Comment by Sanmon (319c0c) — 11/19/2009 @ 9:02 am

  33. Myron: I will add a third choice: I want KSM and those who think like him dead. F**k his rights. He should be tried in a military court, pure and simple, just as we did the Nazi’s. By moving this to a civilian court, as others have pointed out, gives him all kinds of rights to discovery and the ability to reveal sources etc., which would never happen in a miltary setting.

    Comment by BT (74cbec) — 11/19/2009 @ 9:03 am

  34. I’m not so sure “forum shopping” is something that he should be damned for here. While I agree with everything written so far about these being “show trials”, prosecutors engage in “forum shopping” everyday in an effort to have the best opportunity to succeed and/or secure an appropriate sentence.

    This is a daily occurrence between federal and state prosecutors where each has legal jurisdiction to bring a particular case — who has the best evidence for the crime they can charge, and which will get the longer sentence.

    Comment by WLS Shipwrecked (3d3fb8) — 11/19/2009 @ 9:07 am

  35. Hadlowe said: I wonder if Holder is in favor of more summary executions on the battlefield, because that’s the road he’s taking.

    A compelling point. This is already happening.

    From NPR: “Many national security experts interviewed for this story agree that it has become so hard for the U.S. to detain people that in many instances, the U.S. government is killing them instead.

    “Last month, American forces staged a raid on a car in Somalia. The man inside the car was a suspected terrorist on the FBI’s most wanted list. American troops did not seize him. Instead, helicopters fired on the car, and commandos retrieved his body.”

    Comment by Myron (6a93dd) — 11/19/2009 @ 9:07 am

  36. I’m not sure how there will be a fair trial under any venue.

    I’m not sure, either. Which is only one reason why I think this whole hand-wringing over a NY trial is way overblown.

    Comment by Myron (6a93dd) — 11/19/2009 @ 9:10 am

  37. If we give enemy combatants the rights under our constitution. Then do they have the right to right to bear arms, free speech, unreasonable search and seizure?

    Comment by Sanmon (319c0c) — 11/19/2009 @ 9:11 am

  38. If you are tried in our court system then you should be afforded ALL rights under the our laws.

    Sanmon: I agree with that. But has anyone shown evidence that KSM will not be afforded all rights? I don’t mean public tough talk, like Obama saying that he’ll get the death penalty.

    I mean evidence. He will have lawyers, and probably good ones.

    Comment by Myron (6a93dd) — 11/19/2009 @ 9:12 am

  39. I want KSM and those who think like him dead. F**k his rights

    Then I would think you would be for the summary battlefield executions, mentioned by Hadlowe.

    Comment by Myron (6a93dd) — 11/19/2009 @ 9:17 am

  40. prosecutors engage in “forum shopping” everyday in an effort to have the best opportunity to succeed and/or secure an appropriate sentence.

    Exactly. This is basic, prosecutorial behavior. Just like it’s basic, defense attorney behavior to seek a change in venue if they believe their defendant can’t get a fair shake in the original venue. Maybe KSM’s lawyers will ask for a venue change. But basically, there’s nowhere he can go where he won’t be hated.

    Comment by Myron (6a93dd) — 11/19/2009 @ 9:19 am

  41. He will have lawyers, and probably good ones. Comment by Myron

    Then he will probably get off. That is why he should have stayed in the military court system. Rules are different for good reasons.

    Comment by Sanmon (319c0c) — 11/19/2009 @ 9:20 am

  42. 1. Do they want to see KSM convicted?
    No! I want to see him Dead!

    2. Do they want him to have more or less legal protection and rights?
    I want him to have the same rights he advanced to the people on those four airliners,
    the Twin-Towers, and at the Pentagon, which is:
    The Right to DIE!

    Comment by AD - RtR/OS! (e03258) — 11/19/2009 @ 9:20 am

  43. Then he will probably get off.

    Sanmon:

    The going opinion in some quarters — and it’s only an opinion — is that Holder would not have brought the case to NY unless it was rock-solid.

    Then again, how many prosecutors have had rock-solid cases only to see them fall apart?

    I don’t think KSM will get off. But it would be naive to not at least recognize the possibility.

    Comment by Myron (6a93dd) — 11/19/2009 @ 9:25 am

  44. want him to have the same rights he advanced to the people on those four airliners,
    the Twin-Towers, and at the Pentagon, which is:
    The Right to DIE!

    AD: I think he’ll get his.

    Comment by Myron (6a93dd) — 11/19/2009 @ 9:31 am

  45. Yes, and given the opportunity, I would personally deliver him to Allah.

    Comment by AD - RtR/OS! (e03258) — 11/19/2009 @ 9:33 am

  46. Myron – Should KSM Hairshirt go free if the charges are dismissed, tossed, or he is acquitted?

    Comment by JD (2cb0f9) — 11/19/2009 @ 9:42 am

  47. Just a thought on venue…
    Since this was an attack on the United States, this trial could be held anywhere withing the 50-States and be a proper venue.
    I nominate Sturgis SD, during Biker Week…
    the comedic possibilities would be endless.

    Comment by AD - RtR/OS! (e03258) — 11/19/2009 @ 9:47 am

  48. Ohh, need more coffee….
    where did that extra “g” come from (withing?)?

    Comment by AD - RtR/OS! (e03258) — 11/19/2009 @ 9:49 am

  49. SarahW- your point about the safety of surrounding citizens has been mentioned in earlier discussions and is a foundational reason not to hold it in NYC even if a civilian trial has to be held.

    Other reasons why not NYC include it will enhance the terrorists venue for their own propaganda, and an impartial jury will be impossible (you may get jurors who want them freed as well as convicted, but hard to be impartial concerning something as dramatic as what happened on 911). I think you will find that the emotional impact on the citizinry of the US was considerably less outside of the range where the events were able to be directly seen, if nothing more that the cloud of smoke in the distance).

    Myron, thank you for the opportunity to lay out some of the reasons why holding the trial in NYC is a foolish idea. (By the way, most of us don’t really believe what Holder said about choosing the location for the sake of justice and all of that, we think he was just giving a story that would seem plausible to those not paying attention).

    As far as the civilian vs military tribunals, I would think it clear to all but the most ardent idealogues that civilian criminal procedure is appropriate for “typical” civilian crimes on individuals or on groups of individuals for the sake of monetary gain, seeking personal revenge, etc.. etc., and I imagine we afford those rights to non-US citizens (even though we may not have to) when arrested for such crimes. However, when the “crime” is against the existence of the US by a non-US citizen, it seems a priori nonsensical to afford the basic rights guaranteed under that system.

    That is not to say we agree to the indescriminant killing of non-US citizens. We Assume that our military should be run largely by honorable people who seek to limit the amount of injustice in the world.

    We do not expect to start hearing, “Halt, US Special Forces, put down your RPG’s and come out with your hands up!”

    Comment by MD in Philly (227f9c) — 11/19/2009 @ 9:51 am

  50. I would guess the Myron and Bored Lawyer are in favor of summary battlefield executions, since that is where their favored policies inevitably lead.

    What is the purpose of distinguishing between lawful and unlawful combatants, after all? If, as Holder’s policy seems to say, we will try those who attack the military in military courts and try those who attack civilians in civilian courts, then the bottom line is that those who commit war crimes, who fight without uniform, who target women and children, etc. will have the MOST legal rights and protections. And those who fight in uniform, attack military targets, etc. will have the LEAST legal protections.

    If a soldier on the battlefield takes a prisoner and that prisoner cannot be interrogated beyond asking questions politely, the prisoner must have an attorney, the “chain of evidence” against the prisoner must be preserved, etc. and ultimately that prisoner will be released to re-enter the battlefield, then what is the inevitable result? Soldiers will be more likely to adopt a take-no-prisoners stance.

    Why “arrest” non-uniformed combatants who are killing innocent civilians if their arrest can only lead to frustration, expense, release, and very possibly trouble for the “arresting” soldier?

    The Geneva Conventions were adopted so that reasonable warlike actions would have a reasonable response, imprisonment as a POW for the duration – and unreasonable warlike acts (terrorism) could be discouraged and more severely punished. Instead, by allowing terrorists the protections, not only of the Geneva Convention but even of our own citizens, then we are incentivizing terrorism.

    Comment by Gesundheit (47b0b8) — 11/19/2009 @ 9:55 am

  51. Since this was an attack on the United States, this trial could be held anywhere withing the 50-States and be a proper venue.
    I nominate Sturgis SD, during Biker Week…
    Comment by AD – RtR/OS

    I think that’s a great idea, in principle. I bet some communities would love to have the chance to hold the trial, even to help provide the outer security perimeter, say on an abandoned military base.

    Comment by MD in Philly (227f9c) — 11/19/2009 @ 9:59 am

  52. Holder only considered Politics in this decision not legal points. Every part of this case is to set precedence, every part, and that is what Obama and Holder want.

    What is the first things a Lawyer considers before starting a case. Precedence. How does a Lawyer lay out his case, based on Precedence. What precedence is the rule of law that defines this case? None.

    Comment by Sanmon (319c0c) — 11/19/2009 @ 10:14 am

  53. That’s the whole point, Sanmon, because none of Holder’s justifications are truthful or coherent.

    Comment by SPQR (26be8b) — 11/19/2009 @ 10:24 am

  54. Greenwald and Patterico are linking favorably to each other. Has hell frozen over?

    Comment by Crust (cb454b) — 11/19/2009 @ 10:28 am

  55. Holder’s approach makes no sense, IF his goal is to highlight how wonderful the American legal system is. Isn’t part of that legal system its front end? Where a determination is made how/where/with what charges will be brought and prosecuted? The DOJ “protocols” seem more than a little arbitrary, hence unjust. Why? Among others, there’s 75 detainees in limbo, not easily fitting into the “protocols”. There’s also the seemingly unjust approach, that tried, but unconvicted terrorists will still be detained.

    Is Holder trying, through his own machinations, to highlight how unjust or arbitrary the American legal system is? Is he taking a kamikazi approach, like I believe his fellow world travelers are, ramming an unpopular Health Care bill down America’s collective throats, just to advance their cause?

    Comment by MDr (fd1f4b) — 11/19/2009 @ 10:32 am

  56. Myron and Bored Lawyer,

    I want KSM and these other terrorists face a firing squad of citizens with their hunting rifles.

    You could try to protect KSM by standing in front of him.

    Comment by PCD (1d8b6d) — 11/19/2009 @ 10:37 am

  57. Perhaps each state should get a chance to try at least one of the detainees. The Federal money expended would certainly create or save hundreds of jobs in each state. That stimulus alone could have the chain reaction of dropping unemployment by at least 3 points.

    Fire up the printing presses; let’s go green!

    Comment by Corwin (ea9428) — 11/19/2009 @ 10:40 am

  58. because none of Holder’s justifications are truthful or coherent. Comment by SPQR — 11/19/2009 @ 10:24 am

    And thats why I say this is about setting the precedents of Transnational laws, Sharia laws, and Laws of the ICC. There is no precedent under US law for this case. As our President said, he wants to Transform this country. He is only enlightening us to his vision for those who chose to see.

    Comment by Sanmon (319c0c) — 11/19/2009 @ 10:41 am

  59. Just saw this:http://tiny.cc/5PKSq

    Comment by SarahW (692fc6) — 11/19/2009 @ 10:48 am

  60. Just saw this:http://tiny.cc/5PKSq Comment by SarahW

    The Entire Jury Will Have to Be in Witness Protection(for life):

    Not true if you vote for acquittal and move to Saudi Arabia with a large sum of cash for your vote.

    Comment by Sanmon (319c0c) — 11/19/2009 @ 11:03 am

  61. Re: #37 – don’t forget the right to reasonable bail. So we’ll need a Federal Judge available to set the bail amount for each case. You suppose any of the new appointees will likely volunteer?

    Gotta’ just love this. Picture Fallujah, house to house fire fight, a Marine captures an armed ‘suspected insurgent’ who was shooting at him moments ago. The Marine calls his Sergeant.

    “Hey Sarge, gotta’ captive here.”
    “Aw crap. You advise him?”
    “No – lost my card.”
    “Hey Corporal – take this card over there and get this guy advised. Careful of that sniper in the Mosque don’t wanna’ hafta’ send someone after you.
    Ahhh, Lieutenant, sir, we need a Judge down here like right now.”

    I’ll let your imaginations run on their own from here – mine’s in overdrive right now.

    Comment by Robert N. (070cb0) — 11/19/2009 @ 11:11 am

  62. Could they send the Judge out w/o body-armor & helmet?

    Comment by AD - RtR/OS! (e03258) — 11/19/2009 @ 11:27 am

  63. There is absolutely no danger to the judge or the jury. No terrorist is going to lift a finger to stop KSM’s trial. Osama bin Ladin (SoA) himself would chop off the head of any idiot Muslim who screws up the best soap box any jihadi ever had. Come on, free publicity in NY City in the shadow of the Twin Towers. Who’s gonna mess that up?

    The longer the trial goes on the more publicity for Islamic terrorism. Duh! It would take half the oil in the Middle East to buy newspaper and TV coverage like that and right in the heart of the biggest city in America, and to get it free, a gift from Barack Obama (SoA) is a dream come true. Who could have ever imagined such a gift to Islamic terrorism? It boggles the mind. The whole world will be watching as Islam makes a monkey out of Uncle Sam.

    The residents of NY City are a different story, of course they get slaughtered wholesale to keep the horror fresh, front and center on the nightly news. Is this a great country, or what?

    Comment by ropelight (d4e3b8) — 11/19/2009 @ 1:09 pm

  64. Miranda only covers the defendants’ own statements and admissions. It doesn’t cover independent evidence developed against the defendant — whether it was before or after the interrogation. (It has to be truly independent, though. If the un-Mirandized statement led the prosecution to other evidence, then that too would be excluded.)

    Does Miranda apply to statements made by foreigners on foreign soil?

    Comment by Michael Ejercito (6a1582) — 11/19/2009 @ 1:24 pm

  65. Re: Danger to New Yorkers

    Gotta’ wonder if all those Obama supporters in Hollywood who emote ecstatically about ‘The City’ will be renting out their townhouses and penthouses during the trial. Want to bet how many will actually live or even visit while it’s in progress? Also wonder if Holder himself will visit the New York Federal Courthouse to oversee the proceedings or will decide to supervise from a distance? Will the Secret Service limit the visits the President makes to the potential Ground Zero .2?

    Comment by Robert N. (54210b) — 11/19/2009 @ 1:29 pm

  66. #64 … according to Mr. Holder is does now.

    Comment by Robert N. (54210b) — 11/19/2009 @ 1:30 pm

  67. “Does Miranda apply to statements made by foreigners on foreign soil?”

    Once this is all said and done, our soldiers will have the Miranda warning printed on a card, probably on the reverse of their S.O.F.A.. They will not be able to interrogate anyone, and Geneva conventions will be further diluted. We are rewarding people for being war criminals, and punishing forces that obey the conventions.

    It just takes one bad Supreme Court decision to ruin normal war fighting.

    And covert operations will be the only way to handle 99% of these problems, which is much worse from a human rights perspective.

    Comment by Dustin (bb61e3) — 11/19/2009 @ 1:44 pm

  68. Under Article I, Section 8[11] of the Constitution, only Congress is authorized: “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

    If the Miranda rights were ordered by the administration without congressional authorization, are they unconstitutional?

    http://www.americanthinker.com/blog/2009/11/miranda_rights_on_the_battlefi.html

    Comment by Sanmon (319c0c) — 11/19/2009 @ 1:54 pm

  69. “If the Miranda rights were ordered by the administration without congressional authorization, are they unconstitutional?”

    Unconstitutional? You mean like Wickard and Marbury and Roe? Yes.

    Obama has a democrat senate and house right now, anyway, but that’s arguably beside the point if it’s somehow decided, in court, that the constitution always held miranda warnings to be necessary for anyone being tried in federal court, whether they are Osama bin Laden or some ACORN prostitute vote thief.

    Comment by Dustin (bb61e3) — 11/19/2009 @ 1:58 pm

  70. Just got off the phone with an old friend who called me after talking with his son who is deployed in Iraq. The son told him they were in fact ordered to begin giving Miranda Rights to detainees ‘a couple of months ago’ – and have been doing so since then.

    I like, trust and respect my friend. I have issues with his son. Does anyone here have any friends, relatives, or acquaintances who can confirm this?

    Comment by Robert N. (54210b) — 11/19/2009 @ 2:00 pm

  71. Want to bet how many will actually live or even visit while it’s in progress?

    Not too many I suspect, at least if you use the prior example of 9/11 as a template. Many of the NY – based high – profile actors, producers and writers fled to their LA bungalows as soon as the flight restrictions were lifted. Courageous, that.

    Comment by Dmac (a964d5) — 11/19/2009 @ 2:02 pm

  72. I just reviewed the Graham/Holder exchange. At one point Holder says Miranda warnings are now being given detainees on a case-by-case basis (I’m paraphrasing not quoting). Graham failed to follow this up.

    Comment by Robert N. (54210b) — 11/19/2009 @ 2:08 pm

  73. “Myron: I will add a third choice: I want KSM and those who think like him dead. F**k his rights. He should be tried in a military court, pure and simple”

    Yeah, I agree. And here’s how the trial should go.

    Judge: When captured were these guys wearing uniforms?

    Attorney: No, they weren’t. These guys don’t wear uniforms.

    Judge: Then, they’re spies and saboteurs under the laws and customs of war. Execute them.

    Trial over.

    Comment by Dave Surls (ac98c1) — 11/19/2009 @ 2:11 pm

  74. See now this wouldn’t be such a bad thing if we could run it nice and smooth with KSM looking all glum and slightly bored like some Nazi at Nuremberg with everyone knowing what’s going to happen and accepting it but still doing their best for whatever side they’re on.

    But no we have an incompetent for president so Hermann Goering will make a sideshow appearance in beard and turban as if he didn’t kill himself sixty years ago and instead decided to put on a dress to face his charges and started ripping out rebel yells at random intervals during the proceedings. And the New York Times will love it.

    So will Osama bin Laden, Vladimir Putin, and Hugo Chavez, and Hu Jintao, and Ayatollah Khameini, and probably Charles Manson. Glenn Greenwald might even have to set up eight different blogs under pseudonyms to cover it properly. Andy Sully may have to stay up all night to “really dig into it.”

    Comment by chaos (9c54c6) — 11/19/2009 @ 2:20 pm

  75. how could they be mirandizing in the field right now, unless they have lawyers available for those being interrogated?

    Comment by Dustin (bb61e3) — 11/19/2009 @ 2:23 pm

  76. The reason Greenwald and Patterico are linking approvingly to each other is because whatever their other many disagreements, they are both smart lawyers and both can see the games Obama and Holder are playing. KSM will be convicted, and likely sentenced to death.

    Holder is not a stoopid “affirmative action” case, and if he were not certain of overwhelming, admissible evidence to convict those accused terrorists who are being given civilian trials, those accused would not be getting them. Where there is doubt about admissibility, the accused are receiving either military commission trials, or none — just indefinite detention.

    KSM is about as likely to be not guilty as a daycare center is to be named for Michael Jackson. But we already know that some held at Gitmo were not guilty, because even the Bush Administration eventually let many of them go. Some of these men may be innocent.

    Comment by Mona (e1e854) — 11/19/2009 @ 2:26 pm

  77. how could they be mirandizing in the field right now, unless they have lawyers available for those being interrogated?
    Comment by Dustin — 11/19/2009 @ 2:23 pm

    Dustin, you are Brilliant!!!
    Can you imagine how many ACLU and civil rights lawyers are needed in Iraq and Afghanistan RIGHT NOW!!

    I mean, sinmce they are so firmly committed to their principles, and they think these folks need legal representation, time to “put up or shut up”.

    Oh, golly, this is great…except logical consistency was never a high mark of the left.

    Comment by MD in Philly (227f9c) — 11/19/2009 @ 2:34 pm

  78. But we already know that some held at Gitmo were not guilty, because even the Bush Administration eventually let many of them go.
    Comment by Mona — 11/19/2009 @ 2:26 pm

    “Not guilty” and “No longer considered a threat” are not the same. Also, some were released from Guantanamo to the custody of other governments and are still confined. Even the “No longer considered a threat” standard is inadequate as jihadis returning to the fight has shown.

    This venue was chosen for political reasons, not the prosecutor’s discretion to seek favorable circumstances for trial. There is no way KSM and the others are more likely to be convicted in NY than Guantanamo. It is total political theater which makes a mockery of our justice system and our efforts against terrorism.

    Comment by Stashiu3 (44da70) — 11/19/2009 @ 2:42 pm

  79. You know, I kind of hope he gets off scott free in such a way that it manages to even enfuriate the morons who actually voted for Obama not realizing what an America-hating radical he is.

    Wouldn’t that be a great way to cause an end to this “prosecution of terror” and turn it back into the “war on terror”, or better yet, with an aquittal of Major Hasan, or even life in prison for him, we could actually see such an uprising against liberal stupidity that we could actually see an end to PC and an actual admission that the real enemy is Islamic fundimentalism and socialistic thought.

    Small price to pay for the lives saved, although of course I would rather see both of them die on faulty electric chairs and see Obama humiliated and thrown out of office, but such a dream can never come true.

    Comment by SMARTY (eed5d4) — 11/19/2009 @ 2:56 pm

  80. Mirandize – interrogate those that waive; don’t interrogate those that ask for lawyers.

    Comment by Robert N. (54210b) — 11/19/2009 @ 3:16 pm

  81. I love it when Mona goes around rah-rah cheerleading for the Gleeeeeens.

    Comment by JD (efa573) — 11/19/2009 @ 3:29 pm

  82. “There are reasons why bringing this case in an Article III court when it comes to the admissibility of certain evidence is really the right way to go and really maximizes our chances of getting a successful outcome.”–Holder

    Actually what it maximizes is the chance that years after the fact, when the dead are forgotten, some scumbag left winger will come along and pardon the terrorists in order to appease their terrorist-loving political base, and show what swell and merciful guys lefties are.

    “On August 11, 1999, Clinton commuted the sentences of 16 members of FALN, a violent Puerto Rican nationalist group that set off 120 bombs in the United States, mostly in New York City and Chicago. There were convictions for conspiracy to commit robbery, bomb-making, and sedition, as well as firearms and explosives violations.[4] None of the 16 were convicted of bombings or any crime which injured another person, though they were sentenced with terms ranging from 35 to 105 years in prison for the conviction of conspiracy and sedition. Congress, however, recognizes that the FALN is responsible for “6 deaths and the permanent maiming of dozens of others, including law enforcement officials.” All of the 16 had served 19 years or longer in prison, which was a longer sentence than such crimes typically received, according to the White House.[5] Clinton offered clemency, on condition that the prisoners renounce violence, at the appeal of 10 Nobel Peace Prize laureates, former President Jimmy Carter, the cardinal of New York, and the archbishop of Puerto Rico. The commutation was opposed by U.S. Attorney’s Office, the FBI, and the Federal Bureau of Prisons and criticized by many including former victims of FALN terrorist activities, the Fraternal Order of Police”–wiki

    But, of course, the fact that convicted terrorists ended up walking doesn’t bother Eric Holder any…

    “Attorney general nominee Eric H. Holder Jr. repeatedly pushed some of his subordinates at the Clinton Justice Department to drop their opposition to a controversial 1999 grant of clemency to 16 members of two violent Puerto Rican nationalist organizations, according to interviews and documents…”

    “…President Clinton’s decision to commute prison terms caused an uproar at the time. Holder was called before Congress to explain his role but declined to answer numerous questions from angry lawmakers demanding to know why the Justice Department had not sided with the FBI, federal prosecutors and other law enforcement officials, who were vehemently opposed to the grants.”–Los Angeles Times

    Of course, there is a way to prevent that…don’t elect Democrats to office, because if you do, they WILL spring terrorists the second they can secure political advantage from freeing them. Let the military try, convict and execute terrorists the minute they’re captured, and keep the liberals TOTALLY out of the loop. That’s the way to do it, IF you want a “successful outcome”.

    If you want these Al Qaida terrorists to eventually go free, then by all means, keep voting the Democrats into power…they’ll arrange it. Might take them 20 years, but they’ll do it.

    Comment by Dave Surls (ac98c1) — 11/19/2009 @ 3:34 pm

  83. “Mirandize – interrogate those that waive; don’t interrogate shoot those that ask for lawyers.”

    There, fixed that for you.

    Comment by AD - RtR/OS! (e03258) — 11/19/2009 @ 3:37 pm

  84. [...] UPDATE: The blogger Patterico — who, notably, is a prosectuor himself and thus inclined to be empathetic with prosecutorial goals — nonetheless compiles additional evidence to criticize Holder’s decision as follows: [...]

    Pingback by The administration guts its own argument for 9/11 trials « roger hollander (45e6e8) — 11/19/2009 @ 3:41 pm

  85. I love it when Mona goes around rah-rah cheerleading for the Gleeeeeens.

    Are you beset by a reading comprehension problem? At least in this instance, I’m also “rah-rahing” Patterico, who is spot on.

    Greenwald has been increasing, and harshly, critical of Obama and Holder. (And he never endorsed Obama.) However any of you may wish to criticize him, Greenwald is consistent: he cares not a whit whether due process and perceived American legitimacy are undermined by Bush, or by Obama. (And not a few Obamabots are majorly p*ssed at him.)

    Comment by Mona (e1e854) — 11/19/2009 @ 3:47 pm

  86. Just think about how long prisoners sentenced to death in criminal courts typically sit on death row before the sentence is carried out.

    Visualize appeal after endless appeal for KSM for our truly fine legal system.

    This is really shaping up to be one heckuva good plan by Baracky!

    Comment by daleyrocks (718861) — 11/19/2009 @ 3:49 pm

  87. There seems to be some confusion as to the impact of Miranda on the criminal justice process. Miranda applies only to ‘custodial interrogations’ and excludes whatever evidence was discovered or learned through an improper one.
    It does not result in an automatic dismissal of charges unless the evidence necessary to convict the defendant was the result of the Miranda violation.

    Example: Bin Laden is discovered hiding in a cave holding his hand-written instructions to KSM for the 9/11 atrocities. His Marine captor does not Mirandize him (remember he is now ‘in custody’) and asks OBL “Where did you hide the rest of your papers?” Bin Laden points and says “I put them under the cot when KSM gave them back to me after the mission.”

    Assuming the trial court finds the Marine’s question to be a custodial interrogation then OBL’s statement and the papers under the cot (and possibly any evidence those papers lead to) are excluded from the trial. The hand-written documents he was holding are admitted and the trial goes forward. (As an interesting aside – those excluded documents and the statement might be admitted in a trial against KSM because it was OBL’s Miranda rights that were violated, not KSM’s and he has no ‘standing’ to object).

    So, in a field scenario the same Marine captures two armed ‘suspected insurgents’ running from the scene just moments after an IED attack. Before the Marine can say anything Suspect A says “It was his idea, I just pushed the button.” The Marine now Mirandizes both suspects. Suspect B says “Allah is my lawyer.” Suspect A says “I want an American lawyer.” Miranda says the Marine may not ask A any questions and whether or not B invoked his rights is a question for the judge. The volunteered statement prior to questioning and prior to Miranda is admissible. There’s no lawyer closer than an airplane ride back to Gitmo (or its Holder-inspired alternative)? No matter – no questions, no answers, no problem. If the Marine asks B questions and gets answers they may or may not be admitted depending on the court’s ruling on the meaning of “Allah is my lawyer.”

    OK? Class dismissed. What’s that? You have questions? Kindly direct them to the practicing lawyers on the panel.

    Comment by Robert N. (54210b) — 11/19/2009 @ 3:59 pm

  88. KSM will be convicted, and likely sentenced to death.

    Excuse the language, but how in the f-ck do you know that? If that’s the case, then why in hell do this inane and incredibly irresponsible action? This is the real world, and Holder’s not some modern – day Mad Hatter, screeching and stomping his gavel down to declare anyone summarily guilty according to his whims.

    But we already know that some held at Gitmo were not guilty, because even the Bush Administration eventually let many of them go. Some of these men may be innocent.

    While you can use the qualifier of “some,” the reality is that many of the freed terrorists not only went back to their prior activities, but have been found to have actively engaged in wanton acts of murder via their terrorism.

    http://www.cnn.com/2009/US/05/26/gitmo.recidivism/index.html

    Perhaps you’re willing to take the risk of further fiascoes like this happening, but I’m not.

    Comment by Dmac (a964d5) — 11/19/2009 @ 4:04 pm

  89. A prosecutor seeking a venue where he has the best chance of conviction? Heavens! What is this world coming to? Comment by Myron — 11/19/2009 @ 8:25 am

    You have to be really stupid to fall for that b.S.
    Obviously there’s a better chance of a conviction before a military commission. This is about embarrassing Bush and Cheney. Nothing more and nothing less.

    And the concerns expressed by Sarah W. at 15 are right on the money. Anyone expecting the Jihadists to sit out the the trial of their mastermind is delusional. Every juror will be marked for life.

    Comment by Terry Gain (1664b9) — 11/19/2009 @ 4:09 pm

  90. And covert operations will be the only way to handle 99% of these problems, which is much worse from a human rights perspective.

    How so?

    Assuming the trial court finds the Marine’s question to be a custodial interrogation then OBL’s statement and the papers under the cot (and possibly any evidence those papers lead to) are excluded from the trial. The hand-written documents he was holding are admitted and the trial goes forward. (As an interesting aside – those excluded documents and the statement might be admitted in a trial against KSM because it was OBL’s Miranda rights that were violated, not KSM’s and he has no ’standing’ to object).

    Which United States Supreme Court decision has held that Miranda applies to foreigners on foreign soil?

    Comment by Michael Ejercito (6a1582) — 11/19/2009 @ 4:35 pm

  91. Assuming the trial court finds the Marine’s question to be a custodial interrogation then OBL’s statement and the papers under the cot (and possibly any evidence those papers lead to) are excluded from the trial. The hand-written documents he was holding are admitted and the trial goes forward.

    And moreover, under the doctrine of inevitable discovery, the KSM papers would be admitted against Obama as well. His cave would certainly have been searched (with no warrant necessary outside the U.S.), and so the exclusionary rule would not prevent the admissibility of such papers. I imagine Patterico could also affirm that this is so.

    Comment by Mona (e1e854) — 11/19/2009 @ 4:43 pm

  92. Holder’s not some modern – day Mad Hatter, screeching and stomping his gavel down to declare anyone summarily guilty according to his whims.

    Happy that’s sorted out.

    How long should these cases be pending, then? Is the ‘soapbox effect’ your primary concern? Or dragging Bush and Cheney through the mud?

    I don’t suppose that KSM and Ramzi Bin al-Shibh will be permitted to say things and enter evidence the judge doesn’t permit based on the prior motions. Then, again, perhaps our legal system doesn’t work and has to be administratively overturned to get the right result.

    Comment by steve (1f1db6) — 11/19/2009 @ 4:51 pm

  93. While you can use the qualifier of “some,” the reality is that many of the freed terrorists not only went back to their prior activities, but have been found to have actively engaged in wanton acts of murder via their terrorism.

    But not the great majority of those freed. Some were not guilty. And of course, five years spent being tortured at Gitmo might have radicalized those who had not previously been so.

    I despise actual terrorists, and Greenwald has no hard on for them, either. So many of you believe in this fiction of civil libertarians or liberals “loving” terrorists it is beyond your ken that for some, like me, the issue is about who and what the United States is. Not sympathy for terrorists.

    Greenwald was living and working in NYC on 9/11. I know how he felt then and in the immediate aftermath. Let’s just say he was not ready to invite Osama over for a nice dinner.

    Comment by Mona (e1e854) — 11/19/2009 @ 4:53 pm

  94. So many of you believe in this fiction of civil libertarians or liberals “loving” terrorists it is beyond your ken that for some, like me, the issue is about who and what the United States is.

    This may come as a shock to you, but foreigners on foreign soil are not entitled to the protections of the United States Constitution.

    Why weren’t German and Japanese war criminals tried in federal courts?

    Comment by Michael Ejercito (6a1582) — 11/19/2009 @ 5:00 pm

  95. Michael … I was trying to clear up the apparent confusion re: Miranda’s general impact on the criminal justice system while using immediately applicable hypotheses.

    Mr. Holder seems to feel these miscreants are entitled to the full panoply of U.S. Constitutional and Federal Law. His office is the one which will decide what to put before a judge and which rulings to appeal long before the Supremes get to rule on the matter (barring some third party intervention allowed by the Court).

    Therefore it really doesn’t matter that the Supremes haven’t granted these rights to non-citizen combatants because Holder will apparently instruct the U.S. Attorneys to act as though The Court has so ruled.

    Mona … Against Obama? YESSSSSSSSS!

    Alright, I’ll be good. I wasn’t addressing inevitable discovery or any of the other exceptions, extensions, and obfuscations of the snake pit that is Miranda. Several here were making comments and asking questions that suggested they thought that in the absence of the warning and strict obedience to its applicability no prosecution could go forward. That’s all I was trying to clear up. Note: I clearly labeled the standing issue as an aside.

    Comment by Robert N. (54210b) — 11/19/2009 @ 5:06 pm

  96. Some were not guilty. And of course, five years spent being tortured at Gitmo might have radicalized those who had not previously been so.
    Comment by Mona — 11/19/2009 @ 4:53 pm

    Mona, who was not guilty and who was tortured at Guantanamo? You literally have no idea what you’re talking about. Claiming someone was radicalized by their detention at Guantanamo is beyond ignorant. Clearly you have your talking points and nothing is going to change your mind, so I won’t try. I will just say this: Every single detainee at Guantanamo that I came into contact with supported and/or engaged in what most of us would consider terrorism. Every.single.one.

    Comment by Stashiu3 (44da70) — 11/19/2009 @ 5:07 pm

  97. This may come as a shock to you, but foreigners on foreign soil are not entitled to the protections of the United States Constitution.

    Why weren’t German and Japanese war criminals tried in federal courts?

    Because they were uniformed soldiers of nation-states. Not folks our soldiers were offering bounties to Afghanis for. If Achmed hated Omar, the former would be most happy to turn in the latter for the money, even if the latter was nothing but a goat-herder.

    And some of these detainees were picked up off the street by the CIA, sometimes outside of Afghanistan or Iraq.

    Finally, crim law was not my field of expertise, but I agree with the commenter above that Miranda does not likely apply to foreigners picked up outside U.S. borders by soldiers or even the CIA. But the Declaration says all men have inalienable rights. I’m a patriotic American, and I hold to that principle very strongly, and that due process is thus absolutely essential for the detainees. Because we are America.

    Comment by Mona (e1e854) — 11/19/2009 @ 5:27 pm

  98. Our little country is not safe with the Barack Obama one as our president. He is a very foolish and cowardly man is why, and not at all fond of our little country.

    We’re in big big trouble.

    Comment by happyfeet (b919e7) — 11/19/2009 @ 5:30 pm

  99. I keep seeing liberals like Mona squawking about torture at Gitmo but they never seem to be able present any credible evidence of it.

    Why is that? Even Holder gave it a clean bill of health earlier this year.

    Comment by daleyrocks (718861) — 11/19/2009 @ 5:31 pm

  100. “I’m a patriotic American, and I hold to that principle very strongly, and that due process is thus absolutely essential for the detainees. Because we are America.”

    Mona – Don’t be ridiculous. Your position implies we should permit the laws of other nations to prevail inside our borders, Because they are……

    Comment by daleyrocks (718861) — 11/19/2009 @ 5:34 pm

  101. Because we are America you could have cancer in your tits and not catch it in time and die die die cause of your dirty socialist Chicago street trash president turned your little country’s health care system into a third world nightmare.

    Comment by happyfeet (b919e7) — 11/19/2009 @ 5:39 pm

  102. feets – Alec Baldwin might have the Big C in his Scwetty Balls for all I know.

    Comment by daleyrocks (718861) — 11/19/2009 @ 5:42 pm

  103. Schwetty

    Comment by daleyrocks (718861) — 11/19/2009 @ 5:43 pm

  104. I’m a patriotic American, and I hold to that principle very strongly, and that due process is thus absolutely essential for the detainees. Because we are America.

    But an unborn baby can be ripped from her mother’s womb without any process at all. What is her crime that she deserves less protection than a mass murderer? Because that too is America?

    Save me the self righteous sanctimony, Mona. Perhaps if there was less reason for liberals to feel guilty about what they hold dear there would be less need to be dopey about rights for terrorists.

    Liberals should find less dangerous ways to feel righteous.

    Comment by Terry Gain (1664b9) — 11/19/2009 @ 5:43 pm

  105. Mr. Baldwin is all kinds of defective. I’ve never seen that little show he’s in. I think it’s on NBC?

    Comment by happyfeet (b919e7) — 11/19/2009 @ 5:45 pm

  106. Mona, who was not guilty and who was tortured at Guantanamo?

    Perhaps you will wish to call Lt. Col. and Associate Professor of Law David Frakt an Islamofascist-commie lover, but this is only one of many, many sources I could cite, my emphasis:

    The Judge in the case [of a detainee Frakt defended], Colonel Stephen Henley, had made a couple of rulings in the Jawad case (my case) which made the government very nervous. First, he ruled in response to a motion to dismiss that I filed on the basis of torture that he “beyond peradventure” had the power to dismiss all charges on the basis of pretrial abuse of the detainee. Although he declined to dismiss the charges against Jawad, the fact that he would even entertain such a thought was very frightening for the prosecution, since they knew that other detainees had been tortured and abused far worse that Jawad, especially the high value detainees. Judge Henley also indicated that he was declining to dismiss because there were other remedies available, such as giving extra sentencing credit against any ultimately adjudged sentence. . . . He held that the burden was on the prosecution to prove that subsequently obtained statements were no longer tainted by the earlier torture or coercion. Judge Henley applied the law correctly in each of these rulings, applying well-settled principles of due process from U.S. Supreme Court cases. These rulings provide an opportunity for the defense to put the U.S.’ treatment of these detainees on trial, potentially for months, before ever getting to the merits of the case. And in order for the defense to make comprehensive motions, they would have to be made privy to the full scope of the abuses that had been meted out by the U.S. on their clients and should be given the opportunity to develop such evidence in pre-trial evidentiary hearings, as I did in Mohammed Jawad’s case, including allowing the defendants to testify about the abuses they experienced. Those who claim that this type of sideshow can be avoided in federal court simply don’t understand criminal procedure.

    Comment by Mona (e1e854) — 11/19/2009 @ 5:47 pm

  107. Mona —- ‘criminal law was not my field of expertise’ and ‘the Declaration says’.

    Criminal law is not my area of expertise either, but I am arrogant enough to believe that I can tell the difference between scotch and scotch tape.

    The Declaration of Independence is not and never was ‘law’ of any nature. It was a call to arms, a propoganda document, intended to muster support for the revolution. I suggest you actually read the document before you choose to cite it as some sort of legal authority. As you read it reflect upon the situation and the immediate history of the time. Recognize the overblown language, the overstated complaints, along with the litany of real and assumed transgressions of the English Crown against the colonists and ask yourself how much of this document you want to apply to our lives today.

    I also suggest you take the opportunity to read John Locke’s ‘Two Treatises on Government’ and realize how much of the Declaration was a Jeffersonian steal from Locke – not merely the ideas, but some of the identical language.

    Once you have done these things I am willing to wager that you will return to this forum with more questions than the answers your teachers expected you to memorize and regurgitate.

    Comment by Robert N. (54210b) — 11/19/2009 @ 5:56 pm

  108. Mona, who was not guilty and who was tortured at Guantanamo?

    Perhaps you will wish to call Lt. Col. and Associate Professor of Law David Frakt an Islamofascist-commie lover, but he is is only one of many, many sources I could cite, my emphasis:

    The Judge in the case [of a detainee Frakt defended], Colonel Stephen Henley, had made a couple of rulings in the Jawad case (my case) which made the government very nervous. First, he ruled in response to a motion to dismiss that I filed on the basis of torture that he “beyond peradventure” had the power to dismiss all charges on the basis of pretrial abuse of the detainee. Although he declined to dismiss the charges against Jawad, the fact that he would even entertain such a thought was very frightening for the prosecution, since they knew that other detainees had been tortured and abused far worse that Jawad, especially the high value detainees. Judge Henley also indicated that he was declining to dismiss because there were other remedies available, such as giving extra sentencing credit against any ultimately adjudged sentence. . . . He held that the burden was on the prosecution to prove that subsequently obtained statements were no longer tainted by the earlier torture or coercion. Judge Henley applied the law correctly in each of these rulings, applying well-settled principles of due process from U.S. Supreme Court cases. These rulings provide an opportunity for the defense to put the U.S.’ treatment of these detainees on trial, potentially for months, before ever getting to the merits of the case. And in order for the defense to make comprehensive motions, they would have to be made privy to the full scope of the abuses that had been meted out by the U.S. on their clients and should be given the opportunity to develop such evidence in pre-trial evidentiary hearings, as I did in Mohammed Jawad’s case, including allowing the defendants to testify about the abuses they experienced. Those who claim that this type of sideshow can be avoided in federal court simply don’t understand criminal procedure.

    Comment by Mona (e1e854) — 11/19/2009 @ 5:58 pm

  109. I don’t need to call Lieutenant Colonel Frakt anything. Where did the alleged torture occur? You again claim it happened at Guantanamo, but your wall-o-text doesn’t make that claim at all. Also, almost any defense attorney is certain to make the claim his client was tortured because that’s what the detainee is trained to claim. Again:

    Every.single.one.

    Comment by Stashiu3 (44da70) — 11/19/2009 @ 6:04 pm

  110. Are real Monas more or less of a problem than PsuedoMonas ?

    Comment by Alasdair (3fb884) — 11/19/2009 @ 6:20 pm

  111. Are real Monas more or less of a problem than PseudoMonas ?

    (We *hatessss* typosssss, we doesssss !)

    Comment by Alasdair (3fb884) — 11/19/2009 @ 6:22 pm

  112. And of course, five years spent being tortured at Gitmo might have radicalized those who had not previously been so.

    You offer no substance for this claim, other than your insistence that it is so – EPIC FAIL on your part. You do realize that this is a blog by a prosecutor, yes?

    Greenwald was living and working in NYC on 9/11. I know how he felt then and in the immediate aftermath.

    I could less “how he felt” and that he was living in NYC at the time of the attacks. If you’re going to use this oft – cited fatuous example of someone’s “patriotism,” then why did your paramour move to Brazil shortly thereafter? Lower gas costs?

    Comment by Dmac (a964d5) — 11/19/2009 @ 6:23 pm

  113. Ooopppss, almost forgot – AD thanx for the correction back there in #83.

    Comment by Robert N. (54210b) — 11/19/2009 @ 6:53 pm

  114. If you’re going to use this oft – cited fatuous example of someone’s “patriotism,” then why did your paramour move to Brazil shortly thereafter? Lower gas costs?

    My “paramour” is gay, and his domestic partner is a Brazilian national. Because of the Defense of Marriage Act, Greenwald’s partner cannot get a visa to stay here on the basis of their relationship. The very Catholic and in some ways conservative Brazil, however, will give Greenwald a visa based on the very same relationship.

    BTW, I do not reply to Dalyrocks any longer, a habit I picked up elsewhere. Certain other posts here are also too juvenile to merit reply.

    Comment by Mona (e1e854) — 11/19/2009 @ 7:04 pm

  115. Certain other posts here are also too juvenile to merit reply.

    If putting innocent citizens at risk in order to grant foreign war criminals one of the rights of citizenship, in order to embarrass political adversaries, isn’t juvenile, what is?

    Apply the Geneva Convention.

    Comment by Terry Gain (1664b9) — 11/19/2009 @ 7:13 pm

  116. iknowyouarebutwhatami

    Comment by happyfeet (b919e7) — 11/19/2009 @ 7:17 pm

  117. From that well known Communist organization, the International Committee of the Red Cross”:

    In mid-January, Susan J. Crawford, who had been appointed by the Bush administration to decide which Guantánamo detainees should be tried before military commissions, declined to refer to trial Mohammed al-Qahtani, who was to have been among the September 11 hijackers but who had been turned back by immigration officials at Orlando International Airport. After he was captured in Afghanistan in late 2002, Qahtani was imprisoned in Guantánamo and interrogated by Department of Defense intelligence officers. Crawford, a retired judge and former general counsel of the army, told TheWashington Post that she had concluded that Qahtani’s “treatment met the legal definition of torture.”

    Read the whole thing. And now, I am done here.

    Comment by Mona (e1e854) — 11/19/2009 @ 7:58 pm

  118. “We tortured Qahtani. His treatment met the legal definition of torture. And that’s why I did not refer the case [for prosecution]… The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent… You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge [to call it torture].”*

    They must have wanted to know really like super bad what the twentieth hijacker knew in his twentieth hijacker little head. You know, about those buildings they blewed up with the airplanes and such. That was just how people were back then. Barack Obama would never have made such a big deal out of something like that to where he would have let people be all persistent and aggressive. For lots of reasons but also cause of of the Declaration.

    America is shamed.

    Comment by happyfeet (b919e7) — 11/19/2009 @ 8:07 pm

  119. Conclusions based on what she was told by a detainee who was supposed to be on Flight 93. Also, the ICRC (as an organization) is not Communist, but they are not friendly to the United States or its interests. I’m very glad you’re done here. I hate dishonest comments.

    Every.single.one.

    Comment by Stashiu3 (44da70) — 11/19/2009 @ 8:09 pm

  120. Mona – I guess I should feel honored.

    Did we cross paths at Unqualified Offerings?

    Comment by daleyrocks (718861) — 11/19/2009 @ 8:47 pm

  121. That Crawford conclusion is a hoot – This was not any particular act – I remember reading it at the time it first was publicized. What a maroon.

    Comment by daleyrocks (718861) — 11/19/2009 @ 8:51 pm

  122. Mona, what a load of crap. You post a vague description of what happened, with promises that it’s torture. Why?

    Why not have the honesty to tell us what you’re calling torture? Sleep deprivation, long interrogations, music? Does that meet the Red Cross definition? Yes it does. So when they say ‘torture’, I don’t interpret that as ‘torture’.

    Persistent? If that’s the worst thing you can say about it, it is not torture. Was his skin broken? Bruised? Was his life in danger? This man was trying to kill lots of people, and there’s no valid ethical view that doesn’t say the right thing to do is to stop him, even if it is unpleasant to him.

    Utilitarian, Kantian, Dworkin’s contract… it always is the right thing to do. Torture… real torture, the kind Qahtani would do to me, that’s not moral. But what we did to him? Imperative. You flee because you know it. This is just an attempt to knock the USA down a peg or two.

    Comment by Dustin (bb61e3) — 11/19/2009 @ 9:16 pm

  123. “Why not have the honesty to tell us what you’re calling torture? Sleep deprivation, long interrogations, music? Does that meet the Red Cross definition? Yes it does. So when they say ‘torture’, I don’t interpret that as ‘torture’”

    Yeah, but they also made him take his clothes off.

    Poor widdle terrorist. I feel so sowwy for him.

    Not.

    Comment by Dave Surls (daf467) — 11/20/2009 @ 12:37 am

  124. “And now, I am done here.”

    Gee, that’s a shame, because I just haven’t heard enough bleeding heart, terrorist-loving lefties crying over the sad fate of captured Al Qaida terrorists over the last eight years.

    Comment by Dave Surls (daf467) — 11/20/2009 @ 1:16 am

  125. Holder is acting stupidly by being inconsistent. He should either try them all before military commissions or none. Most Republicans are delighted with the prospect of a system which consists entirely of show trials for people kidnapped off the street far from any battlefield, or just keep them in prison forever because we don’t have any evidence against them. Politically it would be very popular, although an atrocity against our Constitution.

    “This man was trying to kill lots of people,…” Oh, yeah? Who says so? Ramzi Binh al Shibh? Who was tortured until he named KSM? KSM, because he confessed? You believe HIM??? I think he’s just a f*cking psychopath who wants to be a martyr because he’s too dumb and inept to win anybocy’s approval or respect any other way.

    I realize a lot of people believe that anyone Bush/Cheney called the “worst of the worst” must be guilty. Lots of judges have the same belief about regular defendants; if they hadn’t done anything wrong the police wouldn’t be charging them, would they? Well, cops and prosecutors DO bring charges against innocent people.

    Anyway, Holder and Obama have taken the worst possible path by abandoning any shred of principle or reason. Bush/Cheney/Rumsfeld/Wolfowitz/Addington/Yoo/Bybee just grabbed everal hundred people at random, finally letting most of them go, and then diddled around trying to set up a system of show trials in kangaroo courts that even the military can’t stomach. Now Holder comes right out and says his proposed course of action lets him pick and choose the “court” where he is most certain of getting a conviction. The words he used, “getting justice”, were a pitiful sham. He meant “getting a conviction” no matter how pitiful the evidence.

    Do you realize that in seven years the “military commissions” have only tried three cases? And one of those was just processing a guilty plea? And that in all three cases the sentence was less than the time the accused had been kept in prison already? You really want THAT for KSM? Sheesh, gimme a break!

    Comment by Jingjok (bec45a) — 11/20/2009 @ 4:02 am

  126. As KSM was going to plead guilty to the Military Tribunal how could Holder or anyone else feel they had a better chance of conviction in any other forum?

    Comment by liamascorcaigh (4848ce) — 11/20/2009 @ 4:29 am

  127. I think they are trying to make a point that they are being more fair than Bush by taking this case to a forum with justice that more closely follows ACLU ideals. Something silly like that. Almost like liberal macho. Bush never had the balls to try a terrorist in a civilian court! Of course, Obama’s people are hedging their bets and also have no intention of actually letting anyone go, so it’s not like their display is really for fairness, but the only reason I can see why they would do this is that Bush wouldn’t have.

    It’s completely blown up in their faces, but it seems so obvious that it would have. Obama could have kept them in tribunals, and the democrats would not have complained and the worst the right would have said was ‘Obama finally gets it… he should have known when he complained about this’. At the end of the day, Obama will still have many people he holds without trial.

    Comment by Dustin (bb61e3) — 11/20/2009 @ 5:28 am

  128. What’s interesting is that Bush’s horrible tribunals that Obama canceled (though he voted for them) had a reputation for fairness. Innocent people were freed. Sure, there were typical problems and back and forth, but those who were tried were given a fair chance.

    I don’t think the same can be said for detainees under Obama. He will give you a show trial if he knows you’re guilty. If the evidence against you is weak, he will simply hold you forever, and let everyone pay attention to the show trial.

    So Bush’s Gitmo will probably turn out to have been much closer to justice than the federal court in ground zero.

    Comment by Dustin (bb61e3) — 11/20/2009 @ 5:33 am

  129. Is Eric Holder Obama’s Roland Freisler?

    Hitler’s Blood Judge

    Is this where we are going?

    Comment by arch (0cb096) — 11/20/2009 @ 5:56 am

  130. Link didn’t work

    http://www.youtube.com/watch?v=UQaP5aLVig

    Comment by arch (0cb096) — 11/20/2009 @ 5:56 am

  131. neither did that

    Comment by arch (0cb096) — 11/20/2009 @ 5:57 am

  132. I’m but a poor simple soldier, but there are several things about these trials that I do not understand.

    1. These guys were caught in a foreign country, by foreign authorities whose legal systems do not require what our does, especially with regard protection of the accused and rules of evidence. When we took custody, we did some things to obtain information about future attacks which under our system are violations of a defendant’s rights. How can Erik Holder, the nation’s chief law enforcement officer, guarantee a conviction in federal court?

    2. A POW can be tried by a military tribunal, convicted and punished or he can be acquitted and kept as a prisoner of war until hostilities end. Either military tribunals are acceptable or they are not. If they are, use them uniformly. Other terrorists are being tried by military judges. Would not military tribunals be the most appropriate court under these circumstances?

    3. The location, identification and capture of these high value targets required highly classified methods and sources. Letting this information leak will weaken our ability to stop future attacks and may get some of our covert sources killed. When these federal court proceedings begin, how are we going to protect our methods & sources?

    Comment by arch (0cb096) — 11/20/2009 @ 6:21 am

  133. He can’t he has no intention to, either, his Department is stocked with people who either defended Gitmo detainees, or wanted them free.The commissions were stalled, over the last eight years, by procedural challenges that ended up in three flawed Supreme Court decisions that ignored the law. It is the 9/10 view of the world ‘preserved in aspic’

    Comment by narciso (11cb90) — 11/20/2009 @ 6:36 am

  134. If an actual trial were to be held, I wouldn’t mind being a juror IF I were granted a CCW permit valid in all 57 states, all US territories, US Possessions, and valid in Iraq, Saudi Arabia, and Israel.

    If the pay is enough to leave my current job, I’d take a job as armed security for ships off the coast of Somalia.

    Comment by PCD (1d8b6d) — 11/20/2009 @ 6:59 am

  135. his Department is stocked with people who either defended Gitmo detainees, or wanted them free.

    This is the proverbial 800 lb. Gorilla in the room that the MSM is resolutely failing to bring up in their reporting on this action. Big surprise.

    Comment by Dmac (a964d5) — 11/20/2009 @ 7:53 am

  136. I think jingjok needs help. Sad.

    Myron never bothered to respond to a fairly simple question.

    Comment by JD (431886) — 11/20/2009 @ 8:24 am

  137. Along with KSM and the others, Bush and Cheney, the CIA, the military, and procedures from beginning to end will be on trial.

    The opportunity to discredit all of the above, and force procedural changes that this Admin will design, trumps whatever happens to KSM.

    They think they can totally remake the way the US does combat operations. Maybe once they do so, everybody will like us.

    I doubt they much care about KSM.

    Comment by jodetoad (059c35) — 11/20/2009 @ 8:49 am

  138. [...] to closure. It’s important to add that Holder’s decision has been controversial, see Patterico and Greenwald, as was his appearance recently before the Senate. However, I agree it’s the [...]

    Pingback by Justice American Style | Taylor Marsh – TaylorMarsh.com – News, Opinion and Weblog on Progressive Politics (29abd1) — 11/20/2009 @ 9:13 am

  139. I will just say this: Every single detainee at Guantanamo that I came into contact with supported and/or engaged in what most of us would consider terrorism. Every.single.one.
    Comment by Stashiu3 — 11/19/2009

    I don’t know if Mona noticed, or other casual readers of this blog, but Stashiu3 knows first hand of what he speaks, and I would trust his word over any quoted document from a pro-detainee source.

    With all of the wonderful coverage, why don’t we know these simple facts, MSM:
    1. How amny were ever detained at Gitmo?
    2. How many were released to freedom, and what do we know about each of them since let go?
    3. How many were released to other countries? What was their fate in other countries?

    Dave Surls- thanks for the FALN reminder, and especially Holder’s role. What a precedent to set.

    Comment by MD in Philly (227f9c) — 11/20/2009 @ 9:35 am

  140. Comment by Mona — 11/19/2009 @ 5:27 pm

    I think Mona needs to refresh her memory re the Germans landed on Long Island via submarine during WW-2.
    They came ashore wearing “civvies”, henceforth they were tried before a Military Tribunal as Spies,
    and were not entitled to the protections of “Geneva”.

    And, to Robert N. @ #113: You’re Welcome!

    Comment by AD - RtR/OS! (83330d) — 11/20/2009 @ 10:12 am

  141. Why not have the honesty to tell us what you’re calling torture? Sleep deprivation, long interrogations, music? Does that meet the Red Cross definition? Yes it does. So when they say ‘torture’, I don’t interpret that as ‘torture’.

    It might be torture if it was Yoko Ono music. In general, the above acts are not torture.

    Comment by Michael Ejercito (6a1582) — 11/20/2009 @ 11:32 am

  142. When we took custody, we did some things to obtain information about future attacks which under our system are violations of a defendant’s rights. How can Erik Holder, the nation’s chief law enforcement officer, guarantee a conviction in federal court?

    At the time that the evidence was gathered, the defendants were not entitled to the protections of the United States Constitution.

    Comment by Michael Ejercito (6a1582) — 11/20/2009 @ 11:34 am

  143. “It might be torture if it was Yoko Ono music.”

    Might be??????

    Comment by Dave Surls (5b7bb6) — 11/20/2009 @ 1:41 pm

  144. Yoko Ono music = oxymoron

    Comment by Robert N. (54210b) — 11/20/2009 @ 1:49 pm

  145. “Yoko Ono music” – is Michael Ejercito being myronic ?

    Comment by Alasdair (e7cb73) — 11/20/2009 @ 2:30 pm

  146. [...] prosectuor himself and thus inclined to be empathetic with prosecutorial goals — nonetheless compiles additional evidence to criticize Holder’s decision as follows: You can see that what we have is an administration that is choosing where to try the detainees, [...]

    Pingback by The administration guts its own argument for 9/11 trials | War On You: Breaking Alternative News (dabf36) — 11/20/2009 @ 8:32 pm

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