Bush Administration Target in 9/11 Trial?

[Headless Thompson Gunner]

So which is it, SS?  Do you favor military courts or civilian courts for Khalid Sheikh Mohhamed and friends?

Are you willing to render an opinion on this issue and stick by it?  Or are you going to equivocate and obfuscate, as usual?

[De Selby]

So which is it, SS?  Do you favor military courts or civilian courts for Khalid Sheikh Mohhamed and friends?

Are you willing to render an opinion on this issue and stick by it?  Or are you going to equivocate and obfuscate, as usual?

I've said many times here I'm indifferent on this - either will give the same basic protections and assure that guilt is assessed on an individual basis.  The call should probably be made on an individualised basis, with people being captured alongside Taliban/Al Qaeda units on the battlefield going to military courts, and people being alleged to be members of Al Qaeda but captured outside the battlefield going to civilian courts.  How that works out isn't really important, though, as long as both have the opportunity to try the case.

I was pointing out to you that all of the things you say make civilian courts inappropriate would also apply to military courts.  There's no special feature about a military court that would make it, say, impossible for a defendant to challenge evidence obtained by torture, or to ask for witnesses to prove that a crime was committed.  Military courts are subject to basic constitutional standards too.

Guantanamo was not created to put people through military courts - it was done for the opposite reason, to keep them out of both military and civilian courts. 

[Monkeyleg]

The call should probably be made on an individualised basis, with people being captured alongside Taliban/Al Qaeda units on the battlefield going to military courts, and people being alleged to be members of Al Qaeda but captured outside the battlefield going to civilian courts.

The battlefield is wherever "they" decide it's going to be: in a market, on a highway, in the desert 100 miles from Baghdad, on the streets of Chicago, or anywhere else. Who determines what is or is not a battlefield?

Guantanamo was not created to put people through military courts - it was done for the opposite reason, to keep them out of both military and civilian courts.

No, it was created to keep them off US soil and away from our civilian population.

[Headless Thompson Gunner]

I was pointing out to you that all of the things you say make civilian courts inappropriate would also apply to military courts.  There's no special feature about a military court that would make it, say, impossible for a defendant to challenge evidence obtained by torture, or to ask for witnesses to prove that a crime was committed.  Military courts are subject to basic constitutional standards too.

Civilian courts are no different from military courts?  Either I'm very confused, or you are.  A number of key rights jump out when I hear that, rights that apply to criminals but not to warfighters.  Things such as Miranda rights, trial by impartial jury, and trial held in the jurisdiction where the crime took place.

I cannot imagine a military trial allowing some ACLU or CAIR hack to turn the trial into a vehicle for attacking the United States.  I can easily see it happening in a civilian trial, especially one as ill-conceived as this one must be.  In fact, I have a hard time imagining the civilian trial to turn out any other way.

Regardless, if there's no difference, I agai have to ask why they're bothering to yank KSM out of the military courts where he belongs and where he's been for many years, and shoe-horn him into the civilian system where his situation doesn't fit.  If there's no difference, they wouldn't bother.  The fact that they do bother tells me there is at least some substantive difference between the military courts and the civilian, enough of a difference to make this farce worthwhile to them in some way.

[De Selby]

The battlefield is wherever "they" decide it's going to be: in a market, on a highway, in the desert 100 miles from Baghdad, on the streets of Chicago, or anywhere else. Who determines what is or is not a battlefield?

No, it was created to keep them off US soil and away from our civilian population.

Monkeyleg, there were already prisons off US soil outside of Guantanamo.  The only reason for choosing that site was the legal fiction that the prisoners would have no rights under either international law or in the US system, military or civilian.  That was fairly explicit in the creation of the prison there.

As for where the battlefield is, I think a good rule is to call it the battlefield in Iraq and Afghanistan.  There is regular military combat in both of those places, which means the conditions are in place for having to distinguish between military/non-military activities.

[De Selby]

Civilian courts are no different from military courts?  Either I'm very confused, or you are.  A number of key rights jump out when I hear that, rights that apply to criminals but not to warfighters.  Things such as Miranda rights, trial by impartial jury, and trial held in the jurisdiction where the crime took place.

You do seem to have confused the differences between the military and civilian systems.  For example:

First off, "miranda rights" do not apply to all criminals in the civilian system.  You don't get mirandized if you are arrested in a foreign jurisdiction. 

Trial by an impartial jury is a requirement in the military system.

"Trial held in the jurisdiction where the crime took place" is not a requirement in either the military or civilian systems.

I cannot imagine a military trial allowing some ACLU or CAIR hack to turn the trial into a vehicle for attacking the United States.  I can easily see it happening in a civilian trial, especially one as ill-conceived as this one must be.  In fact, I have a hard time imagining the civilian trial to turn out any other way.

Okay, what is it that makes a civilian trial more amenable to this kind of monkeybusiness than a military court?  In either, the defendants will get to give evidence.  If it isn't relevant to the case, it won't be allowed in.  If it is relevant, it will be.  To be honest, attacks on the US in both will probably be allowed because they go directly to motive - where you see an unfair attack, I see a confession, which is fine by me.  If they want to help prove the prosection's case, no court, military or civilian, will stop them.

Regardless, if there's no difference, I agai have to ask why they're bothering to yank KSM out of the military courts where he belongs and where he's been for many years, and shoe-horn him into the civilian system where his situation doesn't fit.  If there's no difference, they wouldn't bother.  The fact that they do bother tells me there is at least some substantive difference between the military courts and the civilian, enough of a difference to make this farce worthwhile to them in some way.

This is where you have gone wrong: they didn't yank KSM out of the military courts.  He never was in that system.  There was an administrative review system that was specially created for Guantanamo.  That process was never used in any military proceeding in the history of the US, and was so constitutionally deficient by military standards it was never going to hold up to challenges.

If they had put KSM in the military courts, this would have been a done deal along time ago.  But then he would've been able to stand before the military jury and present a defense, which the Bush administration did not want to allow.

It looks to me like the real disagreement here comes from a misunderstanding of the differences between the military and civilian systems.  Looking at what a military court really provides, do you still support trials in the military system? If so, we're on the same page.

[roo_ster]

Okay, what is it that makes a civilian trial more amenable to this kind of monkeybusiness than a military court?  In either, the defendants will get to give evidence.  If it isn't relevant to the case, it won't be allowed in.  If it is relevant, it will be.  To be honest, attacks on the US in both will probably be allowed because they go directly to motive - where you see an unfair attack, I see a confession, which is fine by me.  If they want to help prove the prosection's case, no court, military or civilian, will stop them.

Classified Data & Methods
On the .mil side, KSM's defense atty would have a clearance and be able to see the evidence, as would the trial judge and the jury.  KSM would not be allowed to see the data and then pass it on later as occurred in the 1993 WTC & blind sheik trials & others I am sure.

In the civ courts, the trial judge has discretion as to what classified data is kept out of open court, but the accused still sees it and then passes it on to his fellow terrorists.

Traitorous ACLU / CAIR / Radical Lawyers
Those who are eager to defend jihadis have helped get classified trial data out as well as pass messages to jihadi organizations.

Lynne Stewart is the poster-lawyer for this.  She was convicted of passing along the blind shiek's approval for the Muslim Brotherhood in Egypt to resume terrorism & murder. 

Like I wrote above, any .mil trial would avoid the traitorous lawyer problem and the evidence would still be seen by defense atty, judge, & jury.

[roo_ster]

Linky about the traitorous battle axe:
http://www.nytimes.com/2009/11/20/nyregion/20stewart.html?_r=2

[Monkeyleg]

jfruser wins!

[longeyes]

Let's cut to the immediate cause of the slapstick: the fact that we have an Attorney General whose career resume is involved with the (profitable) defense of enemies of the United States spurring this show trial.  Why is such a man in this office?  Why is HE making this decision? And why is there no enormous Congressional, not to mention public, outrage? 

It's bad enough that we are turning everything in Creation into a legal profit center but much worse that so many in that profession are loyal to nothing beyond billable hours.  The strength of a society like ours rises or falls on the credibility of The Law.  By the time this trial ends there won't be much of that left.

[Ned Hamford]

Linky about the traitorous battle axe:
http://www.nytimes.com/2009/11/20/nyregion/20stewart.html?_r=2

As part of a terrorism and the law class taught by a federal judge I got to see the tapes of some of interviews with the blind shiek.  She literally laughed about killing children in terrorist acts and sayed it would really help get his message out.  Even after watching that several classmates, in an ethics class I had with them, publically defended what she did and cursed any who would dare call it wrong to so 'represent a client.' 

There is an odd but prevelent form of sociopathy that exists in the legal proffesion and its existance should be aknowledged and considered... sadly I don't think purging it would ever occur.  Far too many legal proffesionals have not the slightest thought twards the impact of their actions but see it all as a game and think the only real people in the world are their family and few like minded friends.

[Headless Thompson Gunner]

"Trial held in the jurisdiction where the crime took place" is not a requirement in either the military or civilian systems.

Funny, I seem to remember reading in the constitution that this was a requirement in all criminal prosecutions.

Okay, what is it that makes a civilian trial more amenable to this kind of monkeybusiness than a military court

See jfruser's remarks.  He nailed it.  These sorts of trials have been used as a vehicle for attacking the US in the past, and it's deliberately naive to think this time will be any different.

This is where you have gone wrong: they didn't yank KSM out of the military courts.  He never was in that system.  

Funny, I seem to remember that KSM has already appeared in military courts.  I even remember reading some transcripts from these court hearings.

Again, I think one of us is confused.

[longeyes]

Anyone who thinks the KSM trial is about legal idealism is either terminally naive or utterly disingenuous.  This trial is designed to embarrass America, eviscerate our intelligence establishment, and entangle our war-waging capability in bureaucratic snares.

[De Selby]

Funny, I seem to remember reading in the constitution that this was a requirement in all criminal prosecutions.
See jfruser's remarks.  He nailed it.  These sorts of trials have been used as a vehicle for attacking the US in the past, and it's deliberately naive to think this time will be any different.
Funny, I seem to remember that KSM has already appeared in military courts.  I even remember reading some transcripts from these court hearings.

Again, I think one of us is confused.

jfruser, the rules for classified material are the same - the Government can and does refuse to produce it in civilian trials, and without a clearance, even defense attorneys can be refused the information.  I'd like to see an example of classified government information going out in a civilian trial, if you have one, to compare that to the military system.

The case Ned cited was an example of a lawyer helping the terrorist get information out, not giving information to the terrorist.  She was convicted and sentenced to 20 some-odd years for it, just like she would have been in the military system.

Headless, let me ask you this: 

About the place of the crime:  How do you think Johnathan Walker Lindh was constitutionally sentenced, if a trial has to be in the place the crime was committed?  How do you think they've ever tried a case of crimes at sea in the US?  Again, I think you have some confusion as to what the constitution requires in criminal cases.

As for grandstanding, I don't see any explanation at all of how a military court prevents that but a civilian one does not. 

Also, KSM never appeared before a court martial.  Your memory is not correct on that point.

[Headless Thompson Gunner]

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Maritime crimes are legally defined as in the jurisdiction of the federal courts.  No?

Do the federal courts also claim jurisdiction over Afghanistan and Pakistan?  Anywhere else in the world?  Any reason we should take them seriously if they do?

And if my memory is incorrect on KSM and he's not appeared before any military judicial system, where'd the transcripts I read come from?  Are they fake?

[roo_ster]

jfruser, the rules for classified material are the same - the Government can and does refuse to produce it in civilian trials, and without a clearance, even defense attorneys can be refused the information.

No, they are most definitely NOT the same.  The UCMJ is similar to, but not identical to Fed civilian courts.  The UCMJ and the Guantanimo .mil comissions process have much higher protections for classified data & methods.  The differences are as I wrote.

I'd like to see an example of classified government information going out in a civilian trial, if you have one, to compare that to the military system.

Too easy.  During one of the 1990s trials (WTC #1 or blind shiek) the trial judge required the Feds to disclose how & what they discovered when tracking & tapping AQ-used sat phones.  As soon as it was revealed in court, AQ dumped all its sat phones and the intel developed using this method dried up.

The case Ned cited was an example of a lawyer helping the terrorist get information out, not giving information to the terrorist.  She was convicted and sentenced to 20 some-odd years for it, just like she would have been in the military system.

Yeah, I wrote what she did and even had a linky to the sympathetic NYT article.  She gave information to terrorists elsewhere, not locked up.

One of her partners in crime was sentenced for something that long.  She was sentenced for maybe that many MONTHS.  The appeals court sent it back down to the trial judge, as they thought the punishment much too mild for such a severe crime.

As for grandstanding, I don't see any explanation at all of how a military court prevents that but a civilian one does not.

Maybe because they wouldn't stand for such Judge Ito-like asininity. 

Also, KSM never appeared before a court martial.  Your memory is not correct on that point.

He was to go before the .mil commissions system in Guantanimo, the same one that has set a whole passel of reformed/mistaken jihadis back home. He and a bunch of jihadis were planning on admitting to their atrocities and sought the death penalty.

I figure if it is good enough and fair enough to send so many home, including a bunch who went back to their jihadi-ways, it is good enough to take a guilty plea and set KSM in line for the Big Shot.

[roo_ster]

HTG:

No fair bringing in the COTUS.

[De Selby]

Headless, the sixth amendment has never prevented extra-territorial jurisdiction.  Maritime crimes are the jurisdiction of the federal courts the same way that extra-territorial terrorism is in the jurisdiction of the federal courts.  That is a non-issue with these cases.  Both military and civilian courts have undisputed jurisdiction to hear these matters.

Also, your memory is mistaken, as KSM has never appeared before a military court.  There isn't a transcript of such because it never happened.

jfruser,

The protections are not that much higher - certainly not so much that nation endangering information cannot leak in a military court but can leak in a civilian court.

Your second example is not what happened in the blind sheik case - what happened was that the Government listed its un-indicted co-conspirators (which it does not have to do), and included names on the list that the terrorists knew could only have appeared from certain tapping/tracking activities.  That kind of mistake can and has been made by the military, and a list of alleged conspirators would not be presumptively secret in military court anymore than in civilian court.  It was an executive department screw up, not a trial requirement, that led to the mistake.

The fact that one court tried to play nice with Lynne Stewart doesn't mean much, as there are rules for these kinds of sentences, and they will be applied in almost every case.  So yeah, she did get 20 years for what she did, and it mainly consisted of passing on communications between the terrorist and his followers, not passing state secrets to them.

The military commissions system was never a military court.  It is administrative review - light.  The fact that it sent so many people home proves nothing, absent a full review of the facts that distinguish their cases from others.  A reliable and tested evaluation of the facts simply cannot be ensured outside of a trial.

[Headless Thompson Gunner]

Headless, the sixth amendment has never prevented extra-territorial jurisdiction.  Maritime crimes are the jurisdiction of the federal courts the same way that extra-territorial terrorism is in the jurisdiction of the federal courts.  That is a non-issue with these cases.  Both military and civilian courts have undisputed jurisdiction to hear these matters.

So the fede3ral courts claim jurisdiction over Pakistan and Afghanistan?  They want to enforce American laws against foreigners in foreign countries?  This is justice?

What happens when Pakistan or Iran or someone decides to return the favor and arrest some of us here in the US for breaking their own local laws?

Also, your memory is mistaken, as KSM has never appeared before a military court.  There isn't a transcript of such because it never happened.

In defiance of physics and lefties everywhere, I, Headless Thompson Houdini The Magnificent, hereby perform a feat of magic so amazing, so startling, so stunning, that you'll be left in wonderment.

Silence please, this is very dangerous, I need all of my concentration here...

<Poof>
Voila!   A magical transcript of a military tribunal for KSM that clearly never happened:
http://www.defenselink.mil/news/transcript_ISN10024.pdf

Don't try this at home kiddies.  Only experts who have studied the mystical arts from ancient masters can perform a trick as physics-defying as linking to a document ShootinStudent swears cannot possibly exist.
 

Thank you, thank you.  No applause necessary.  And reme3mber, the 7:00 show is NOT the same as the 5:00 show.

 

[De Selby]

Headless, yes, other countries can and do routinely exercise extra-territorial jurisdiction.  I'm not sure why you find it so unfair, since it's exactly what you were proposing to occur in military courts.  There's no reason why it would be a huge injustice in one court but suddenly transformed into a work of fairness because the courtroom is full of uniforms.

You linked to a transcript of KSM's appearance before a "combat status review tribunal", which is not a court martial or in any way similar to a court martial.  The CSRT was specially created administrative system, designed specifically to exclude all the normal procedures that would be involved in a tribunal determination of a person's civilian versus combatant status.   What the CSRT is not, and never purported to be, is a military court or tribunal of the sort that has ever been used to try crimes.

[MicroBalrog]

So the fede3ral courts claim jurisdiction over Pakistan and Afghanistan?

The Constitution follows the flag.

[Headless Thompson Gunner]

Headless, yes, other countries can and do routinely exercise extra-territorial jurisdiction.  I'm not sure why you find it so unfair, since it's exactly what you were proposing to occur in military courts.  There's no reason why it would be a huge injustice in one court but suddenly transformed into a work of fairness because the courtroom is full of uniforms.

What I'm proposing is that we not confuse military matters with criminal matters.  It is no great oddity for one nation to exercise military force in its own defense, and in so doing capture foreigners out of their own country.

What strikes me as odd is using military a raid to capture a warfighter engaged in a war against us, and then applying our criminal laws against him rather than the conventional rules of warfare.

I think it's a very dangerous precedent to blur the lines between military operations and criminal prosecutions.  There are things a military must routinely do, and rightfully, that are absolutely unacceptable for a law enforcement authority to do.  Confusing military with criminal leads to either an ineffective national defense or an unjust criminal system.  Both outcomes are unacceptable in a free society, and both can be avoided by simply respecting the differences between war and crime.

You linked to a transcript of KSM's appearance before a "combat status review tribunal", which is not a court martial or in any way similar to a court martial.  The CSRT was specially created administrative system, designed specifically to exclude all the normal procedures that would be involved in a tribunal determination of a person's civilian versus combatant status.   What the CSRT is not, and never purported to be, is a military court or tribunal of the sort that has ever been used to try crimes.

The CSRT is a military tribunal.  It may not be a UCMJ type court martial, but I never said it was.  What I said was that KSM has been in a military court system, and that he is being removed from that system to be brought up to New York.  This is true, and it's disingenuous to say otherwise.

Now, you may not like the makeup or operation of the military tribunal systems that are being used for these terrorists, but that's a different thing entirely from claiming there is no military court/tribunal system in use.

I asked you earlier if you had a preference between moving these guys into the civilian criminal courts vs keeping in the military system.  At the time you refused to render an opinion.  You said you didn't care.  Cleary that's not true, it now seems that you have a big problem with the military system.  Wish you'd given a straight answer and acknowledged your preference at the outset, rather than playing this juvenile "I don't like those courts therefore I'll pretend they don't exist" game.  Maybe we could have had a meaningful conversation on the military courts being used for KSM and friends and spared ourselves the hassle.