The sub-head to this post: “Glenn Greenwald is right on this one.” If that doesn’t keep you reading, what will?
I recently posed a question that has been on many Americans’ minds since Barack Obama announced that KSM would be tried in federal court: “If Khalid Sheikh Mohammed Is Acquitted, President Obama, Will You Release Him?”
As I noted, Obama cannot and will not answer this question. Obama must either concede that he will release KSM if he is acquitted, which is political suicide — or concede that KSM’s trial will be a show trial, where the outcome is either predetermined, or does not matter.
Allahpundit has been arguing that the Grand Gesture of granting KSM a trial in federal court is undermined by the naked reality that Obama won’t release KSM regardless of the outcome. In support of his contention, Allahpundit unearthed this prepared statement Barack Obama made in May, which makes for interesting reading in light of the announcement that KSM will be tried in federal court:
Now, let me begin by disposing of one argument as plainly as I can: We are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people.
Perhaps even more interesting is his description of what he would do with people who can’t be tried, but are still dangerous:
[W]hen this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.
If they’re “prisoners of war” then why would we try them in civilian courts, Mr. Obama?
To be sure, Obama goes on to mouth generalized platitudes about how this must be done legally, in conjunction with the other branches of government, etc. etc. But what he does not confront, because politically he cannot, is the question posed at the head of this post: what if you can’t continue to hold KSM legally? Will you still hold him?
Back in May, when Obama made these remarks, Karl discussed some contemporaneous articles that provided some insight into how the Obama administration was handling this issue. A New York Times article said that Obama was musing about “a ‘preventive detention’ system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried.” A New Yorker article said the Obama administration was “weighing” the idea of a national security court that could “order certain suspects to be held without a trial.”
The latter article quoted Neal Katyal, who is now Obama’s Principal Deputy Solicitor General, favoring the “national security court” as an option even for defendants acquitted in federal court. As Katyal explained the idea in this article (written before Obama’s election):
Now, what is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.
That’s where a national security court could come in. A system staffed by federal judges, with experienced counsel on both sides, in which the government would have an ability to temporarily detain a dangerous individual. It might be limited to those situations when a criminal trial has failed.
Ah. So you try the terrorist, and if he’s acquitted, you go to a different court to keep him in custody. (“Temporarily,” of course. And what is meant by “temporarily”? Until the war on terror is over? Until the patently dangerous person no longer wishes to kill every American he sees? How long would Obama’s national security courts hold an acquitted person after the criminal trial has failed?) The rationale for the separate system of justice: we might not win in the existing system.
That’s a show trial. For all his faults (and they are many), Glenn Greenwald is exactly right about this. He notes that Obama and Holder are determining what sort of process detainees get, not based on what is legally required, but rather based on whether the government can win:
A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials.
Greenwald starts from this valid premise and reaches bad conclusions, in which he seems to want to grant a full criminal trial to every prisoner of war caught on the battlefield. But he and I agree that a fair proceeding requires basic rights, such as notice of the charges and evidence, a right to be present, a right to counsel, and a right to respond to evidence. I have many times expressed concerns about holding detainees based on secret evidence, or rigging the process to ensure convictions.
If the government is choosing the forum and mode of your trial based on where it thinks it can win, it is rigging the outcome. If the government is unwilling to accept a bad outcome to your trial, your trial is a show trial.
Under these criteria, Obama’s decision to try KSM in federal court is a clear example of a show trial.
In his press conference, Eric Holder went off script and inadvertently confirmed this, when asked how he could assure family members of 9/11 victims that the plotters would not be released on a technicality:
I am quite confident that we’re going to be successful in the prosecution efforts.
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.
A questioner picked up on Holder’s suggestion, asking how it could be fair or legal “if you’re picking different forums for different defendants based on where you can be sure that the outcome will be a conviction.” And then Holder readjusted the mask he had just let slip, and said that of course he wasn’t doing that.
This statement of Holder’s is completely consistent with Obama’s May remarks in which he stated that dangerous people “who cannot be prosecuted for past crimes” will not be released.
The American people need to understand: Obama is not giving KSM a trial because he believes it’s the right thing to do. He is giving a trial to KSM only because he believes that a conviction seems certain — and if for some reason the government turns out to be wrong about that, KSM is going to be held anyway.
There’s really only one way to read this: the trial of Khalid Sheikh Mohammed will be a show trial. For all his faults on other fronts, Glenn Greenwald is exactly right here.