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November 21, 2009

Couldn't (and shouldn't) prosecutors keep going after KSM until the "right" outcome is achieved?

Ever since AG Holder announced the decision to try Khalid Sheikh Mohammed in civilian court in New York City, there has been much hand-wringing in the media (and on this blog) about the possibility that KSM could be acquitted or avoid the death sentence that would seem justified in this case.  But these professed fears fail to appreciate that various limits on double jeopardy would enable prosecutors many bites at the KSM apple, if needed.

First, the federal charges to be brought in New York may just focus on KSM's role in the bombing of the Twin Towers and the deaths that resulted in NYC.  If shrewd, the feds can (and perhaps should) decide not to charge KSM with the the bombing of the Pentagon and the deaths that resulted in Virginia or with the crash of United flight 93 and the deaths that resulted in Pennsylvania.  Then, if the NYC trial does not reach the "right" outcome, the feds can go after KSM again in federal court in Virginia for his role in the Pentagon deaths and again in federal court in Pennsylvania for his role in the flight 93 deaths.

Second, even if the feds decide to bring all of these charges for all of KSM's federal crimes in the planned NYC trials, state prosecutors in New York and Virginia and Pennsylvania can (and arguably should) bring state prosecutions against KSM.  Of course, New York does not have a functional death penalty and Pennsylvania capital system is stuck in arrested development.  But Virginia has a well-functioning death penalty system, and the citizens of that state have every reason to hope (and perhaps demand) that Virginia state prosecutors go after KSM if the results of the planned federal prosecutions do not seem satisfactory.

Usefully, another major modern terror attack on US soil provides recent precedent for potential dual prosecutions.  After the feds only secured a life sentence for Terry Nichols for his role in the Oklahoma City bombing, Oklahoma state officials brought a state capital prosecution in order to seek to vindicate the state interests implicated by this act of mass murder.  (Notably, state jurors were unable to decide to give Nichols a state death sentence, though the fact that Tim McVeigh was sentenced to death and executed for his role in the Oklahoma City bombing probably explains why even state jurors decided to go soft on Nichols.)

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Comments

"First, the federal charges to be brought in New York may just focus on KSM's role in the bombing of the Twin Towers and the deaths that resulted in NYC. If shrewd, the feds can (and perhaps should) decide not to charge KSM with the the bombing of the Pentagon and the deaths that resulted in Virginia or with the crash of United flight 93 and the deaths that resulted in Pennsylvania. Then, if the NYC trial does not reach the "right" outcome, the feds can go after KSM again in federal court in Virginia for his role in the Pentagon deaths and again in federal court in Pennsylvania for his role in the flight 93 deaths."

I think the first trial in that scenario would have to be limited to the 1993 bombing (I wasn't sure if that's what you meant). The 9/11 attacks in New York and on the Pentagon were clearly part of a single conspiracy. An acquittal in New York for the 9/11 attacks that occurred there would likely bar a prosecution for the attacks in Virginia based on collateral estoppel and/or pure double jeopardy application. I think all of the 9/11 attacks would have to be prosecuted in a single federal proceeding.

As you explained, though, successive state prosecutions would clearly be permissible.

Now here's an interesting question to consider:
If one of the hijacked airplanes crossed over a State's airspace, but no deaths occurred in that State, would that State have jurisdiction to prosecute KSM for conspiracy? I assume that the answer would depend upon the individual state laws defining their jurisdiction in criminal cases.

Posted by: JC | Nov 21, 2009 3:49:08 PM

Doug --

For the most part, I concur in your analysis. The odd thing is that Holder had a perfect reason to opt for a military tribunal on the basis of the 9-11 attack on the Pentagon. At the same time Holder announced that KSM would be tried in civilian court in New York, he said that other al Qaeda detainees -- the ones who engineered the fatal attack on the USS Cole -- would be put before a military tribunal. The reason for this difference, Holder said, was that the Cole was a military target.

Of course so was the Pentagon. Indeed it is impossible to think of a more purely military target than the seat of the military.

With Holder's having endorsed military tribunals for those who selected military targets, the path was clear to put KSM and his crew before a military tribunal as well. The decision not to, and to roll the dice with the more defendant-friendly rules in civilian court, still strikes me as very poorly thought out. An acquittal or hung jury in New York, followed by a conviction by a military tribunal for non-New York murders, will make us look simultaneously (1) like a laughingstock, for failure to convict an obviously guilty man for the biggest mass murder in the country's history, and (2) like the proverbial "barbarians," for using some legal loophole (so it will be said) to keep trying him until we get the result we want.

Posted by: Bill Otis | Nov 21, 2009 3:57:30 PM

JC: Though I am not an expert on DJ limits regarding conspiracy charges, I think a cleverly-drawn federal indictment in NYC dealing with NYC deaths would not categorically preclude a separate cleverly-drawn federal indictment in PA and/or VA dealing with PA and/or VA deaths (perhaps using aiding/abetting theories as opposed to conspiracy theories). That said, I could readily imagine that the feds will want to charge everything in NYC, and will feel confident that they can get convictions and death sentences in NYC.

That said, Bill might be on to what's really going on: Holder wants the NYC trial to be based on attacks on civilian targets (the WTC), and then the feds can/will reserve the ability to try KSM in a military tribunal for attacks on military targets (the Pentagon and also the White House).

Finally, Bill, no matter what happens in the NYC trial or in subsequent legal actions, I am not at all concerned about appearing to be either a laughingstock or proverbial "barbarians" in this context. Rather, the fact that we are all working so hard to respect the rule of law in this extraordinary setting (despite reasonable differences of opinion), shows why America is neither a laughingstock or barbarians. Indeed, unless we already have these labels in the wake of Abu Ghraib and/or our willingness to use LWOP for 13-year-old offenders and/or for other ugly aspects of our tendency to treat even our least serious criminals and sub-human, I do not think anything that happens with KSM will and should change perceptions much.

Posted by: Doug B. | Nov 21, 2009 4:38:20 PM

$100 million in legal costs. That is what it's about. The exploitation of this tragedy by the lawyer makes me sick.

He should be tortured for three weeks, not for information, but to make him suffer, then shot in the head, and have his body fed to the pigs, in Pakistan. Get in the face of Al Qaeda by dropping the well fed pigs from a Predator drone on Bin Laden's house, whose location is well known to the CIA and to Pakistani intelligence.

Posted by: Supremacy Claus | Nov 21, 2009 5:21:14 PM

Doug --

Whether we wind up being viewed as a laughingstock or as a country of barbarians depends, I think, on events yet to transpire.

That said, most people have already made up their minds on these questions. If KSM is convicted in NYC and executed, that will merely be fodder for those who already think we're barbarians. They'll be just as wrong then as they are now. If he's acquitted, or gets a hung jury, that will be fodder for those who think we're a laughingstock.

Given the nature of the terrorist enemy, if I had to choose, I would prefer to be thought of as barbaric. The more al Qaeda fears us, the better I like it; indeed, my preference would be that they fear us so much THAT THEY WOULD STOP, as even the maniacal militarists in the Japanese government stopped when they sufficienyly feared the consequences of continuing the war. But what others think of the United States does not, standing alone, concern me a whole lot. The country's ability and willingness to safeguard its legitimate interests is the first criterion on my list. "World opinion" per se is far behind. (In addition, and no matter what is said by the international chattering class, ACTUAL world opinion will line up on the side of nations with the confidence and strength to advance their interests, rather than those who would be cowed).

BTW, choosing a military commission for KSM would certainly have been in line with the rule of law. Congress passed the Military Commissions Act precisely for KSM and al Qaeda. To act in accordance with a statute is the paradigm of acting under the rule of law, as Holder implicitly recognized by authorizing military commissions for the USS Cole terrorists.

Posted by: Bill Otis | Nov 21, 2009 6:08:37 PM

Bill Otis,

I am still not at all convinced that the procedures to be used for a military commission, even after the relaxation of rules Obama announced early in his term will withstand court scrutiny. Given the way the habeas courts have been treating evidence just for the purpose of continuing to hold onto someone I do not expect any sort of deference to the MCA/DTA statutes.

Posted by: Soronel Haetir | Nov 21, 2009 7:48:52 PM

"I think a cleverly-drawn federal indictment in NYC dealing with NYC deaths would not categorically preclude a separate cleverly-drawn federal indictment in PA and/or VA dealing with PA and/or VA deaths (perhaps using aiding/abetting theories as opposed to conspiracy theories)."

United States v. Broce, 488 U.S. 563 (1989) would probably be the closest case on point. Say KSM is acquitted in New York on the New York 9/11 attacks, and then indicted in Virginia on the Virginia 9/11 attacks. Under Broce, he has the right to a pretrial hearing on whether or not the New York 9/11 attacks and the Virginia 9/11 attacks constituted the same conspiracy (thereby raising a double jeopardy/collateral estoppel bar to prosecution), irrespective of whether or not the two indictments, on their faces, alleged two distinct conspiracies.

Here's another interesting question. Let's say for the sake of argument (even though it would never happen) that KSM gets acquitted in every single federal and state court that tries him. Under Hamdi v. Rumsfeld, 542 U.S. 507 (2004), does the federal government have the authority to detain him indefinitely as an enemy combatant, notwithstanding the fact that he has already been acquitted in every available civilian court on civilian criminal charges? My gut instinct is that, yes, so long as the federal government can make the showing necessary to establish that KSM is an enemy combatant, his acquittal in civilian courts would not preclude his continued detention as an enemy combatant.

Posted by: JC | Nov 21, 2009 10:07:57 PM

I would think Ashe v. Swenson would be very much on point for successive federal prosecutions. I have an extremely difficult time seeing 9-11 as being much different than failing to prove a robbery against one victim then trying again with a different victim to the same attack.

Ashe seems far more on point than Broce.

This would have absolutely no effect on successive state prosecutions however.

It will also be interesting to see if KSM attempts to get a death sentence the way he was with the military tribunal he had been before earlier.

Posted by: Soronel Haetir | Nov 21, 2009 11:37:19 PM

"I would think Ashe v. Swenson would be very much on point for successive federal prosecutions."

That would depend upon how artfully the indictments are crafted. If a successive indictment is drawn up in a manner that alleges a completely different conspiracy, it would cast the factual predicate for the collateral estoppel claim into doubt.

Posted by: JC | Nov 22, 2009 12:15:14 AM

"Ashe seems far more on point than Broce."

The distinction between Ashe and Broce is primarily a distinction between procedural requirements and substantive requirements. Broce makes clear that a federal criminal defendant with a viable double jeopardy claim is entitled to a hearing if the factual predicates for the double jeopardy claim are not evident upon the face of the indictment(s) in question.

In other words, Broce establishes that the procedural requirements for vindicating a double jeopardy claim are (at least in federal court) constitutionally mandated. In contrast, Ashe merely sets out the substantive requirements for achieving a meritorious claim of collateral estoppel.

Posted by: JC | Nov 22, 2009 1:53:07 AM

Could someone with experience in trying cases in federal court, military court and New York criminal court comment on the statement in today's Associated Press article that "Federal courts bar evidence obtained by coercion." And, "A new law regarding military commissions forbids evidence derived from torture and other harsh interrogation techniques"

Maybe what is going on is that there is less opportunity for KSM in state court to turn the trial into an indictment of American torture of prisoners.

bruce cunningham

Posted by: bruce cunningham | Nov 22, 2009 8:26:37 AM

This whole thing seems half-baked. Perhaps, Holder isn't as smart as everyone thinks.

Posted by: comment | Nov 22, 2009 10:23:22 AM

Maybe I'm the only one in the country that hasn't followed this and doesn't know why everyone is so certain KSM is guilty. The only "fact" I'm aware of is a vague recollection that he confessed under torture. But what is interesting is if this case makes bad law, did the terrorists win? What if a similar crime occurred about 1800 or shortly thereafter? (Perhaps it did?) What do all these potential do-overs mean in the context of originalism?

Posted by: George | Nov 22, 2009 11:27:11 AM

I suspect a factor, if not a very weighty factor is the perception of legitimacy & I suspect we'll see all capital cases tried in federal civilian court. The Article III court option beats the Article I court option in terms of perceived legitimacy by our allies and friends. The "commissions" are generally, rightly or wrongly(and I suggest wrongly), viewed by them as Kangaroo Courts.

Another factor may be both the AG & Pres. concerns about the use of the death penalty. Both the Pres. and AG have stated previously either opposition outright, the latter, or strong reservations, the former, to capital punishment. They both may feel more comfortable with the time tested notion of sticking twelve citizens in the box and letting them make the call.

Doug, many state constitutions, statutes, & rules do not permit state courts from trying a criminal trial AFTER the feds have attempted to do it.

Bill, assuaging our allies whose assistance we need in the GWOT (read troops in Afghanistan) should weigh heavily on the C-I-C.

Posted by: karl | Nov 22, 2009 2:04:48 PM

karl --

A few points:

1. The trial should be conducted in the forum most likely to yield the deserved conviction, and most appropriate for the act of war the 9-11 attack was -- i.e., in a military tribunal.

2. The contribution of our allies to Afghanistan will be no more than token no matter what.

3. I am not aware of any specific evidence that the British or any other alled government has expressed a preference for one venue over another. Do you know of any?

4. What will really give comfort to allies is having reason to believe that we have the power and determination to kill our (and their) mortal enemies, and will not be disuaded by an editorial in Le Monde.

5. Our enemies and skeptics will view a conviction of KSM as the work of a "kangaroo court" regardless of whether it is secured in a civilian or military setting. Just as they are not that particular about whom to kill (they didn't go office-by-office on 9-11), they are even less particular about what kind of procedure the "imperialist" United States employs for its trials.

Posted by: Bill Otis | Nov 22, 2009 4:45:35 PM

I thought I would find this much earlier considering how good the information is.

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