Bush Administration Target in 9/11 Trial?

[Ben]

I don't know enough about legal issues to know if this is possible. What do the lawyers among you think? Could the Bush Administration potentially be called in to testify at a civilian trial? If so, are there any differences in how National Security issues are handled (i.e., could normally classified documents and events be de-classified for the trial)?

I wasn't thinking about this possibility when I first heard about the civilian court trials. It seems to me that if the Obama Administration lets the courts and defense attorneys have free reign with officials from the previous administration, especially in a trial that's supposed to be focusing on the terrorists, things are gonna get ugly for them PR-wise. I think all but the most left-leaning liberals are gonna get disgusted really fast.

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http://www.foxnews.com/politics/2009/11/14/view-pending-trial-attempt-prosecute-bush-administration/

Some Fear Bush Administration Could Become Target in 9/11 Trial

by 

FOXNews.com

Some critics say a civilian trial -- instead of a military tribunal --  for self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and his accomplices could end up targeting the Bush administration and its anti-terror policies.

   
AP2008

The Obama administration, in deciding to try alleged Sept. 11 conspirators in a New York courtroom, has said it is setting its sights on convictions, but some critics say a civilian trial -- instead of a military tribunal -- could end up targeting the Bush administration and its anti-terror policies.

One of those five defendants, Khalid Sheikh Mohammed, has been at the center of the debate over those Bush-era polices, in particular the harsh interrogation techniques used on Mohammed and others in an effort to obtain information on Al Qaeda and any additional attacks.

"The government is going to try to put Khalid Sheik Mohammed on trial. Defense lawyers will try and put the government on trial," former New York City Mayor Rudy Giuliani told Fox News.

The Justice Department says in a 2005 memo that CIA interrogators subjected Mohammed 183 times to waterboarding, a near-drowning technique described by Obama officials as illegal torture. But others disagree with Obama, most notably former Vice President Dick Cheney, who argues that the techniques used have kept the country safe from another attack.

Obama's attorney general, Eric Holder, announced in the summer that he would investigate whether CIA officers should be prosecuted for their interrogations, setting off intense debate over the prospect of prosecuting officials from the previous administration.

But on Friday, in announcing a civilian trial for Mohammed and four other detainees, Holder dismissed questions about whether politics was a factor in the decision.

"My job as attorney general is to look at the law, apply the facts to the law and ultimately do what I think is in the best interests of this country and our system of justice. Those are my guides," he said. "To the extent that there are political consequences, well, you know, I'll just have to take my lumps, to the extent that those are set in my way."

"But I think if people will, in a neutral and detached way, look at the decision that I have made today, understand the reasons why I made those decisions, and try to do something that's rare in Washington -- leave the politics out of it and focus on what's in the best interest of this country -- I think the criticism will be relatively mild."

But Holder already has faced strong criticism from conservatives and some families of 9/11 victims.

Karl Rove, a former top Bush adviser and now a Fox News contributor, said some attorneys in the Justice Department have tried for years to undermine the military tribunals system and "gain for these war criminals the rights that we would accord American citizens who might be accused of knocking over the local 7-Eleven."

"I think we make a mistake by focusing on the politics of it," Rove said. "What we ought to do is focus on the real danger this represents to the American interest and to the American security in the years ahead."

Supporters of trying the detainees in military tribunals note that the tribunals have relaxed standards for presenting evidence and offer minimized risk of disclosing government anti-terror secrets.

Tom Ridge, head of the Homeland Security Department in the Bush administration, warned against using the trials as a means of going after Bush administration officials.

"You'd like to think that ... it is simply their interpretation that these individuals are entitled to these kinds of criminal justice protections -- rather than using it as a fishing expedition to revisit decisions made during the past six years," he told FoxNews.com, adding that "time will tell."

"If we discover later that it's really just a facade to delve into a fishing expedition, I would find that just unacceptable, outrageous and a further distortion of the system," he said. "If it's subterfuge for the fishing expedition, that's just wrong and unconscionable."

[Monkeyleg]

...Holder dismissed questions about whether politics was a factor in the decision.

Give me a break. Everything is political with this administration.

If any guilty terrorist gets anything less than the death penalty, the voters in this country are going to be steaming mad next November and in 2012.

[De Selby]

The sense in which this would "target the Bush administration" is that defendants will argue that their confessions are bogus.  They will do that by claiming that they confessed because of abuse and torture.  Normally, that sort of information would go to the jury. 

There's also the issue of the constitutional right to face an accuser.  The courts won't be able to force classified information into the public, but they have been willing to throw out entire cases where witnesses/information aren't made available.

[RoadKingLarry]

Give me a break. Everything is political with this administration.

If any guilty terrorist gets anything less than the death penalty, the voters in this country are going to be steaming mad next November and in 2012.

Any "failure to convict" will be blamed on the Bush administration and republican interference.

This dog and pony show is nothing more than a way for Obama and his cronies to funnel large sums of federal money to his ACLU buddies. The fact that it could damage US interests and national security is just a bonus.

[Standing Wolf]

Everything is political with this administration.

I'm surprised the current occupant of the White House hasn't had his mug put on the money yet.

[Monkeyleg]

I'm surprised the current occupant of the White House hasn't had his mug put on the money yet.

Give it time. He's waiting until it takes 100,000 Obamabucks to buy a cup of coffee.

[Viking]

Give me a break. Everything is political with this administration.

If any guilty terrorist gets anything less than the death penalty, the voters in this country are going to be steaming mad next November and in 2012.

I think that you might be thinking too highly of a majority of your fellow citizens regarding remembering any of that. After all, there'll be plenty of new episodes of American Idol between the day the sentence falls and the next election, not to mention how many episodes there'll be before Nov. 2012. Also, the administration will probably ensure that the offical version shows who is to blame for them not being stood up against a wall and shot, and I'm thinking it will be the former administration. Somehow, they'll see to that. 
/Cynic

[grampster]

In a civilian federal court, the judge should release all of the defendents on the basis of failure of the government to comply with the Federal Rules of Criminal Procedure.

[Headless Thompson Gunner]

Criminal Defense 101:  When you have no defense, you put the prosecution on trial.

The United States of America is going to be on trial here, not the terrorists.  This is going to be a case against the CIA, against the military, against Bush/Cheney/Rumsfeld/Rove/Rice, and against national sovereignty.  

This is exactly what Obama wants.  He gets to stomp all over America and his political adversaries, and he gets to present himself as if he's doing something noble and just in the process.  

Ya gotta admit, it's a brilliant move on Obama's part.  It's evil in its intentions, but brilliant in execution.

[Standing Wolf]

Ya gotta admit, it's a brilliant move on Obama's part.  It's evil in its intentions, but brilliant in execution.

Unfortunately, you're right, Headless Thompson Gunner.

[freakazoid]

If any guilty terrorist gets anything less than the death penalty, the voters in this country are going to be steaming mad next November and in 2012.

If it wasn't for the threat of future attacks to get them free I don't think they should get the death penelty, I think they should rot in some cell the rest of there life. They want death.

[Headless Thompson Gunner]

They want death.

All the more reason to give it them.

If they really do need to have a criminal prosecution, why not do it like any other criminal prosecution where the accused is willing to cop to the crime?  Why not just offer them a plea agreement and let 'em sign if they wish?  My understanding is that they've not only confessed, but they've boasted about their exploits and have asked to be put to death for them.  

So why go through the charade of a criminal trial?

(That's a rhetorical question.  We already know why we're going through this farce of a "trial".)

[Boomhauer]

All the more reason to give it them.

Slow, excruciatingly painful death, too.

[Headless Thompson Gunner]

Nah.  We're not a nation of sadists.  If we need to put someone to death, we ought to do it quickly, unflinchingly, and honorably.

[Perd Hapley]

You should be more pain-positive.

[De Selby]

No matter how this goes, there will always be the option of a plea that results in no trial for the detainees.  Most probably will not take that option, however, as the government is unlikely to offer any deals that would make saving the public's time worthwhile.

Something funny about this thread is that I see strong distrust of Obama, and at the same time lambasting the idea that terror suspects should be given trials.

Think about this for a second: this policy of criminal trials, where the accused have the opportunity to mount a defense and challenge the prosecution's case, is a limit on Obama's authority.  If he were to continue to adopt the Bush policy of denying any need for a trial, that would mean Obama would have the power to arrest and detain anyone for life simply by asserting that person is a terrorist.

The purpose of a trial is to force the government to prove its claims. 

Who here wants Obama to be able to imprison, waterboard, and perhaps even execute individuals without having to prove that the person is a terrorist to a jury? 

[Jamisjockey]

Who here wants Obama to be able to imprison, waterboard, and perhaps even execute individuals without having to prove that the person is a terrorist to a jury?

Its rare that I agree in whole or in part with SS....
 

In order to placate the far left, Obama can't be seen as adopting Bush policies, which we all know he's done dozens of times this year already.  He failed in getting gitmo closed.  So, even though a Military Tribunal would be legal, his only option is to do something the Bush administration wouldn't have.
Also, once we hear evidence of how much these guys were waterboarded, etc, there will be a loud screaming cry from the left for Bush's head on a spike.  Prosecuting Bush administration officials will be a much needed distraction for this administration, while they continue to ram their agenda down our throats.  Also, it'll be a great "reminder" about how "evil" Republicans and the right are, just in time for the next election cycle.

[MicroBalrog]

Do we really think that a confession obtained through waterboarding should be upheld as valid by any court? [Assuming, that is, these people's confession was so obtained]

[makattak]

Criminal Defense 101:  When you have no defense, you put the prosecution on trial.

The United States of America is going to be on trial here, not the terrorists.  This is going to be a case against the CIA, against the military, against Bush/Cheney/Rumsfeld/Rove/Rice, and against national sovereignty.  

This is exactly what Obama wants.  He gets to stomp all over America and his political adversaries, and he gets to present himself as if he's doing something noble and just in the process.  

Ya gotta admit, it's a brilliant move on Obama's part.  It's evil in its intentions, but brilliant in execution.

Actually, it's yet another foolish move by an inept administration.

Obama gets the backing of his supporters and attacks his political adversaries.

However, the great "undecideds" and "independents" will hate this farce and see it for what it is (despite Obama claiming it is a "prosecutorial decision").

Obama cannot gain from this. Even as a crass political move, this is stupid. He can only lose from this decision. The question is only how badly, i.e. does he only look petty in attacking his predecessor or does it become clear his policies endanger the United States (through another attack)?

[De Selby]

How does forcing the government to prove guilt when it accuses someone of terrorism endanger the United States?

It's telling that this is considered an attack on Bush.  It won't be Obama raising the issues with the administration in these trials - in fact he'll have the US attorneys struggling to do the opposite, so that they can get convictions. 

The real reason people think this is an attack on Bush is that the accused terrorists are going to talk about their treatment, which, if accounts to date are true, clearly amounted to torture in at least some cases.

There is also the big embarrassing possibility (probability, even) that some of the people who talk about being tortured will be acquitted when their exculpatory claims check out. 

Both of those events will result in harsh criticism of Bush, but that's hardly unfair or unreasonable.

[makattak]

How does forcing the government to prove guilt when it accuses someone of terrorism endanger the United States?

It's telling that this is considered an attack on Bush.  It won't be Obama raising the issues with the administration in these trials - in fact he'll have the US attorneys struggling to do the opposite, so that they can get convictions. 

The real reason people think this is an attack on Bush is that the accused terrorists are going to talk about their treatment, which, if accounts to date are true, clearly amounted to torture in at least some cases.

There is also the big embarrassing possibility (probability, even) that some of the people who talk about being tortured will be acquitted when their exculpatory claims check out. 

Both of those events will result in harsh criticism of Bush, but that's hardly unfair or unreasonable.

How does forcing the government to prove guilt when it accuses someone of terrorism endanger the United States?

It does not. Forcing the government to do it in the American justice system, under the laws created for dealing with criminals caught in the United States does.

Worse, if the government is allowed to keep certain information out of the trial because it is vital to national security, it will set VERY bad precedent:

http://chicagoboyz.net/archives/10193.html

The greatest danger posed in the trial of Khalid Sheikh Mohammed (KSM) isn’t that he will go free. The greatest danger is that he will be convicted and that during his appeals the courts will ratify all of the extraordinary measures used to capture and convict him. The great danger is that the courts will ratify the rough, inaccurate and ambiguous norms of martial law as applying to all civil criminal trials.

Read the whole post.

These people Obama is bringing to the United States need a military tribunal as they are not citizens and were not caught in the United States. Confounding martial law with civil is VERY bad.

[Headless Thompson Gunner]

How does forcing the government to prove guilt when it accuses someone of terrorism endanger the United States?

Why is it you lefties always assume that civilian criminal courts are the proper way to judge evidence on acts of war?  Are you guys not aware that we have military courts for judging military matters?

It's telling that this is considered an attack on Bush.  It won't be Obama raising the issues with the administration in these trials - in fact he'll have the US attorneys struggling to do the opposite, so that they can get convictions.  

What makes you think the goal is to obtain a conviction?  The goal of guys like Obama and Holder has all along been to get these guys out, and to do damage to the US in the process, if possible.

The real reason people think this is an attack on Bush is that the accused terrorists are going to talk about their treatment, which, if accounts to date are true, clearly amounted to torture in at least some cases.

There is also the big embarrassing possibility (probability, even) that some of the people who talk about being tortured will be acquitted when their exculpatory claims check out.  

Both of those events will result in harsh criticism of Bush, but that's hardly unfair or unreasonable.

Trying to judge military actions in a civil courtroom is deliberately idiotic.  We know that the military has to do unfriendly things to people.  This is why we have a military in the first place, to do unfriendly things to people as necessary for our own security.  This is why we don't let the military perform law enforcement against suspected criminals.

The root problem is believing KSM and friends are suspected criminals.  They are not.  The fact that we had to send the military into a foreign country to nab these guys ought to be a giant flaming clue that they aren't routine civil criminals.  They are military men engaging in unconventional warfare against the United States.  The appropriate response is to treat them as irregular warfighters, not as purse snatchers.

[Monkeyleg]

If it's proper to try these terrorists in civilian courts, why haven't we done that over the past 200 years to our other enemies? Did we try the Nazi spies caught in the NY harbor during WWII in civilian court?

Moreover, if terrorist acts (excuse me, "man-caused disasters") are criminal, then aren't our soldiers obliged to obey civilian laws regarding use of force? Wouldn't shooting terrorists or bombing their camps be excessive use of force? If a terrorist is found with bomb-making materials, but nobody saw him plant the bombs, can he be held?

For that matter, if this is all a criminal matter, why do we need the armed forces at all? We can just send hundreds of thousands of lawyers to Iraq and Afghanistan. It will drive the terrorists insane, and be a huge relief for the American people.

[coppertales]

The only reason these terrorists are being brought to this country for trial is to give obama's lawyer buddies a nice paycheck, and a name for themselves.  And, a chance to drag the Bush admin through the mud.  Watch the dims time these trials right before the elections to distract the public....chris3

[roo_ster]

mak linked to an astute analysis and I will post it in full.  Well worth your time reading.




http://chicagoboyz.net/archives/10193.html

How Obama is Bringing Martial Law to America

Posted by Shannon Love on November 15th, 2009 (All posts by Shannon Love)

In my previous post, I listed some (but far from all) of the practical problems presented by trying in a civil criminal court an individual (1) who was captured overseas, (2) had evidence against him collected using covert means, with (3) no chain of evidence or custody, and (4) was harshly and physically interrogated with (5) all witnesses and methods being secret.

The greatest danger posed in the trial of Khalid Sheikh Mohammed (KSM) isn’t that he will go free. The greatest danger is that he will be convicted and that during his appeals the courts will ratify all of the extraordinary measures used to capture and convict him. The great danger is that the courts will ratify the rough, inaccurate and ambiguous norms of martial law as applying to all civil criminal trials.

After a couple of decades of these court decisions reverberating throughout the legal system, we could end up living under de facto martial law.

The Constitution recognizes only two types of trials, the civil and the military. The Fifth Amendment states:

    No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Until the Obama administration overturned two centuries of precedence, America had two systems of justice, the civil and the military. The military system played a very small and focused role. It served rough justice in the chaos of war and in places like the open sea in which no nation’s law governed.

For over two hundred years, those captured by the military outside the civil boundaries or caught carrying out military action on US soil, were tried by military tribunals. Up until the 1950s the military used drum head trials to convict and execute those found fighting in violation of custom and international law. Pirates were often hung at sea within hours of their capture. In WWII, anyone fighting disguised as a civilian faced summary execution with the approval of just three officers.

For over two hundred years we were careful to keep a firewall between civil and martial law. We did so because civil and martial law are polar opposites. Civil law is focused on protecting the rights of the accused against the overwhelming power of the state. When there is doubt, the accused walks free. Martial law is focused on imposing a minimal order on bloody chaos. It was focused on allowing the military to complete its mission and win wars. When there is doubt, the accused is presumed guilty.

Now, Obama wants to bring martial law into a civil court room in Manhattan. In order to let a civil conviction of KSM stand, the higher courts will have to overturn almost all the current constitutional protections of the accused.

They will have to overturn the requirement for Miranda warnings. They will have to overturn the Fifth Amendment protection against self incrimination. They will have to overturn the right to face one’s accusers and to examine all evidence and evidence gathering methods.

Even if the courts throw out his conviction, the government will never allow him to go free, so we will toss out protection against double jeopardy if they try to convict with a military tribunal, and toss out the right of no imprisonment without trial if they don’t.

Our system of justice relies on precedent and equality of procedure. The same rules apply to every civil trail. We can’t say that it’s okay to deny the right against self-incrimination in one person’s trial while saying it’s okay in another. If the courts overturn the rights of one individual accused, it must overturn the rights of all of them.

Nothing good will come of this trial.

If it is conducted outside the bounds of normal civil law, it will be nothing but a corrupt show trial whose outcome was preordained by politicians. Instead of showing the world that America is a land of laws in which even our enemies receive fair treatment, it will show the world the opposite.

If it is conducted within the bounds of normal civil law, then it will force the courts to choose between letting a mass murdering terrorist walk free and setting dangerous legal precedents that will undermine the basic civil rights of all Americans.

Obama has unleashed something in America far, far more dangerous than any excesses Bush might have committed. He has taken all the horrible compromises we must make in war and driven them into the heart of the civil legal system. If the courts do not set Khalid Sheikh Mohammed free, the cancer of martial law will metastasize into the entire justice system.

We may eventually wish we had never caught the bastard at all.


The above post answers most of SS's questions.

Here are a few others:

Who here wants Obama to be able to imprison, waterboard, and perhaps even execute individuals without having to prove that the person is a terrorist to a jury? 

I do, if he is fighting a war or gathering intel overseas from folks hostile to America.  He already is doing most of this, in his duty as CIC.

Do we really think that a confession obtained through waterboarding should be upheld as valid by any court? [Assuming, that is, these people's confession was so obtained]

Yes, in a military court/tribunal.  Unlawful combatants have no business being tried in civil courts.

How does forcing the government to prove guilt when it accuses someone of terrorism endanger the United States?

Addressed in the post above.


Frankly, these folks ought never have seen the light of day since their capture.  They ought to have been interrogated and then taken out back and shot after a quick discussion.