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November 13, 2009

Obama Administration making key decisions on how to prosecute key terror suspects

As detailed in this new New York Times piece, Attorney General Eric Holder is expected this morning to announce formally a set of important decisions about how federal officials plan to prosecute key terror suspects.  Here are the specifics:

Khalid Shaikh Mohammed, the self-described mastermind of the terrorist attacks of Sept. 11, 2001, and four other men accused in the plot will be prosecuted in federal court in New York City, a federal law enforcement official said early on Friday.

But the administration will prosecute another set of high-profile detainees — Abd al-Rahim al-Nashiri, who is accused of planning the 2000 bombing of the U.S.S. Cole in Yemen, and four other detainees — at the military prison at Guantanamo Bay, Cuba before a military commission, the official said....

No detainee is being moved right away. Under a law Congress enacted earlier this year, lawmakers must be given 45 days notice before the executive branch moves any Guantanamo Bay detainee onto United States soil.

The decision marks a milestone in the administration’s efforts to close the Guantanamo prison, something that President Obama announced shortly after taking office he would do within a year, but which has proven difficult to achieve because of uncertainty about what to do with the detainees housed there.

I hope and suspect that the death penalty is a punishment in the mix for all of these folks.  Indeed, assuming these suspects are guilty of planning and helping to execute the 9/11 terror attacks, these individuals present a challenge for those who are avowed death penalty abolitionists to explain why capital punishment should not at least be an option for perpetrators of these kinds of horrific mass-killing crimes.

November 13, 2009 at 09:47 AM | Permalink

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Comments

"these individuals present a challenge for those who are avowed death penalty abolitionists to explain why capital punishment should not at least be an option"

I'm sure it'll be just as challenging as pro-lifers explaining why a woman should not be allowed to abort the child of her rapist.

Posted by: . | Nov 13, 2009 10:52:18 AM

Will the defense move for a change of venue?

Posted by: George | Nov 13, 2009 11:14:34 AM

Change of venue to where? Osama bin Laden's cave?

At any rate, in some ways, New Yorkers, who experienced the toll of destruction, death, and mourning in the most personal way, might be most susceptible to an argument that another killing would only perpetuate the cycle of violence and/or that we should not stoop to the level of our enemies and give al qaeda/the defendant the satisfaction of becoming a martyr. (Which seems like about the most likely defense approach to attempt to avoid a death sentence in this case.)

Posted by: anon | Nov 13, 2009 11:56:42 AM

Given that KSM was willing to plead guilty until he learned that the tribunal wasn't allowed to issue a death sentence upon a guilty plea without trial I'm not sure he'll allow his counsel (even if he accepts them) to do much.

Posted by: Soronel Haetir | Nov 13, 2009 12:36:35 PM

...and give al queda/defendant the satisfaction of becoming a martyr.

By moving this to federal court in New York, Holder is providing our enemies the largest stage in the world to proclaim their message of hate.

Another bad move by the AG.

Posted by: mjs | Nov 13, 2009 12:57:52 PM

The man is an enemy soldier who committed a war crime by intentionally targeting civilians. He should therefore be tried before a military commission, as were Nazi sabateurs in WWII. He should also be given their fate.

Posted by: Bill Otis | Nov 13, 2009 1:15:43 PM

"By moving this to federal court in New York, Holder is providing our enemies the largest stage in the world to proclaim their message of hate."

Cameras and video aren't allowed in federal court.

Posted by: . | Nov 13, 2009 1:24:23 PM

Oh Bill Otis, you'll have to do better. RedState just out teabagged your ass.

Erick^2 posted

"In that trial, the terrorist will get all the rights afforded an American citizen in a criminal trial, including the right to a fair trial, the right to a taxpayer funded attorney, the right to review all the evidence against him, potentially including classified intelligence matters, the right to exclude evidence against him including, potentially, any confession obtained through enhanced interrogation techniques, etc."

All nice and good, but then followed by

"At best, this will be a show trial fit not for the American Republic"

Ah yes. There it is.

Posted by: . | Nov 13, 2009 1:26:44 PM

anon --

"New Yorkers, who experienced the toll of destruction, death, and mourning in the most personal way, might be most susceptible to an argument that another killing would only perpetuate the cycle of violence and/or that we should not stoop to the level of our enemies and give al qaeda/the defendant the satisfaction of becoming a martyr."

I would not presume that New Yorkers are fools.

Posted by: Bill Otis | Nov 13, 2009 1:29:44 PM

What makes him an "enemy soldier"? Planning the killing of someone in a foreign country? Foreigners kill Americans and Americans kill foreigners in their countries regularly, but it doesn't make them soldiers. Is it the number of people killed? How many do you have to kill to be a soldier? What's the distinction between murderer and soldier?

Also, since we didn't prosecute and execute every German or Japanese soldier who killed an American servicemember, isn't it better to classify him as a murderer than a soldier?

Posted by: Standifer | Nov 13, 2009 1:44:54 PM

I like this move a lot. It has Rahm's fingerprints all over it. It tosses red meat to the wolves in a key electoral battle ground around mid-term election time. Since it is a huge media market it will be difficult for the Republicans to paint him soft on terror. And finally since he's being tried as a civilian it's a direct thumb in the eye to Bush's war on terror.

A tea bagger? No, a three bagger. And all the Republicans can do is complain about a "show trial". Well that's exactly the point don't you see.

Posted by: Daniel | Nov 13, 2009 2:43:40 PM

This move has pluses and minuses. I don't like the prospect of trying people in military tribunals, so bringing this into civilian court is a good thing (in my opinion).

But, this case is going to go on FOREVER. The issues that will be present in this case about torture, conditions of confinement, secret evidence, imprisonment without charge, rendition, etc., are going to make this one of the most complicated prosecutions in our lifetime.

The cost is going to be astronomical and finding a civilian jury who can sit for the length of this trial will be tricky (in NYC or anywhere else). Finally, rightly or wrongly, this case will end up being as much about the Bush/Cheney policies as about an act of terrorism.

Posted by: NYC Lawyer | Nov 13, 2009 3:05:30 PM

Is there a speedy trial issue?

Posted by: federalist | Nov 13, 2009 4:04:26 PM

Nov 13, 2009 1:26:44 PM --

"Oh Bill Otis, you'll have to do better. RedState just out teabagged your ass."

No wonder you don't sign your name.

Posted by: Bill Otis | Nov 13, 2009 4:47:42 PM

federalist --

You bet there is. Indeed, there are numerous issues that, in civilian court, could result in a dismissal or an aqcuittal. Many of them are so obvious that one must wonder whether this decision was made precisely to increase that chance, or in willful disregard of the prospect that it will.

Posted by: Bill Otis | Nov 13, 2009 5:01:20 PM

Thanks, bill. I'm not up on that area of the law. I wonder why the news coverage, generally speaking, isn't asking the question.

Posted by: federalist | Nov 13, 2009 5:44:45 PM

Bill, if you're "one," you seem to be wondering whether the AG decided to try KSM in New York to increase the chance of a dismissal or acquittal. (For the record, I think that's preposterous.) Or am I reading that wrong?

If not, what possible benefit would Holder or the Obama administration gain from a dismissal or acquittal? Implying that it was done for that purpose implies that those who made the decision would benefit in some way, right?

Posted by: Standifer | Nov 13, 2009 5:57:29 PM

Stadifer --

There is a standard jury instruction that says the jury may infer that a person intends the natural and probable consequences of his acts.

The decision to put the trial in civilian court, as opposed to a military commission, means that the government will have significant problems with the Speedy Trial Act, Miranda, discovery of classified information and other things that otherwise would not have existed or that would have been easier for the government to deal with before a military commission. These additional obstacles to a conviction in civilian court mean that a conviction there is less likely than it would be before a military tribunal.

In other words, an acquittal or a dismissal is more likely given the route DOJ has chosen. Increasing the likelihood of those outcomes is the natural and probable consequence of the Administration's decision, as the Administration surely knows.

I think you can figure it out from there.

Posted by: Bill Otis | Nov 14, 2009 11:29:45 AM

Bill -

No, actually I can't figure it out, and you didn't answer the question. I'll say it again, very clearly:

Why would Holder and/or the Obama administration want an acquittal or dismissal in KSM's case?

It would only hurt them politically. Maybe be disastrous. Are you in with the Obama-as-crypto-Muslim crowd? That would be helpful to know, so I know how much credence to give your posts.

Posted by: Standifer | Nov 14, 2009 11:35:16 AM

Bill. I don't think it matter's to Rahm if there is an acquittal or not. If there is an acquittal by the jury then that is on the head of the NEW YORK jury. What are the odds of that anyway. Slim to none. On the other hand if there is a dismissal by the judge then that is on the judiciary, not the Obama administration. This is super slick move because it lets Obama look tough on terror while tossing the whole mess onto the people of NY and the judicial system. Whatever happens now the executive is done with it. You can argue about natural and logical consequences till your blue in the face but that will get no significant traction in the media. Face it, the Republicans have been out maneuvered once again.

Posted by: Daniel | Nov 14, 2009 12:03:56 PM

The NYT today discussed how local juries might be the way to go for defense attorneys as to punishment:

"For example, a Manhattan federal jury twice deadlocked in 2001, resulting in life sentences for two Qaeda operatives who confessed to helping bomb the American Embassies in Kenya and Tanzania in 1998, attacks that killed more than 200 people."

The "another killing will do little good" argument probably will be attractive to some people around here. A few jurors, maybe even one, is all you need.

The trial has a bunch of troubles involved in it but so would making KSM et. al. enemy combatants worthy of a military trial. That has a certain dignity that would stick in my craw.

Certain cases might be different. For instance, the case of the teenager who allegedly attacked our troops has a different flavor to it than a domestic attack no more war-like in my mind than Timothy McVeigh being treasonous.

But, my sympathies for all those involved in carrying this out. Of course, lots of stuff done already is part of why this is so. The Obama Administration in effect is like a maid cleaning up a mess.

Posted by: Joe | Nov 14, 2009 12:29:17 PM

Daniel: I hardly think this move makes Obama look tough on terror. Leaving this to the vagaries of the criminal court is foolhardy. Anything short of the death penalty will be viewed by the public as an injustice. With the historical backdrop of this case and the liberal jury pool of New Yorkers, how difficult will it be to find a single juror to vote no on the death penalty? A likelihood in my view.

Posted by: mjs | Nov 14, 2009 1:28:19 PM

If I were the defendants, I would move for a trial in the Bronx. The Bronx jury will set them free and suggest indicting the victims for colonialist crimes.

Posted by: Supremacy Claus | Nov 14, 2009 3:48:42 PM

This is the ultimate in prosecutorial grand standing and generation of lawyer costs. I would like to see these criminal lover prosecutors face treason charges for their collaboration with the terrorist, giving them a great platform for to air their views. The terrorists and the prosecutors should all be summarily shot at Guantanamo, away from the public and from the press. Bury their corpses in a secret locations or feed them to pigs.

Posted by: Supremacy Claus | Nov 14, 2009 3:52:02 PM

If were a terror defendant, I would be demanding total discovery of all intelligence methods, assets, human and technical, or for a mistrial if refused.

Posted by: Supremacy Claus | Nov 14, 2009 4:12:05 PM

Standifer --

"No, actually I can't figure it out..."

Sure you can. You just don't want to.

"...and you didn't answer the question. I'll say it again, very clearly: Why would Holder and/or the Obama administration want an acquittal or dismissal in KSM's case?"

Unlike many on this site, who claim to be able to speak for their opponents (principally to erect straw men), I don't make any such claim as respects Obama or Holder. You might more profitably ask Obama's long-time spiritual advisor, Rev. Jeremiah Wright, if you can slip in a word between his "God damn America" rantings. Do you think Rev. Wright might be rooting for an acquittal?

"It would only hurt [Obama] politically. Maybe be disastrous."

Exactly the same was true of Jimmy Carter's refusal to use force to compel Iran to release the hostages. Obama is not the coward Carter was, but he shares Carter's view of America as a morally stained country. Carter, you will recall, persisted in his genuflection toward the mullahs even though it became obvious that his doing so would (and did) elect Ronald Reagan.

"Are you in with the Obama-as-crypto-Muslim crowd?"

I actually don't know, or care, what religion Obama follows, if any.

"That would be helpful to know, so I know how much credence to give your posts."

You can figure out how much "credence" to give my or anyone else's posts by evaluating the analysis they present. In that regard, I note that you do not dispute either of my principal points, to wit (1) that an adult generally intends the natural and probable consequences of his acts, and (2) that the natural and probable consequence of having a civilian trial, as opposed to a military commission, is to increase the likelihood of an outcome favorable to KSM.

Posted by: Bill Otis | Nov 15, 2009 2:51:30 AM

Bill, In the military system there is an equivalent of a Speedy Trial Act, and Miranda also binds the military courts.

You seem to think that a military court will convict people regardless of the law or evidence. This is a little disturbing. You also seem to think that Americans are incapable of rationally judging evidence unless they are in the military.

Why don’t you just come out and say it: you don’t want a fair trial for these people.

Posted by: S.cotus | Nov 15, 2009 8:22:07 PM

S.cotus --

In my post, I said, "Unlike many on this site, who claim to be able to speak for their opponents (principally to erect straw men), I don't make any such claim..."

Your response, which claims that I think this and I think that, provides a wonderful and timely example of exactly what I was talking about.

Thanks!

Posted by: Bill Otis | Nov 15, 2009 9:23:22 PM

The problem, Bill, is that you do no actually respond to any arguments that I made. This would appear to indicate that you are conceding them.

So, let's start with some basics:
1. Should ANY court be able to rely upon illegally-obtained evidence?
2. If the answer to #1 is NO, can you explain why a military commission should be able to rely upon illegally-obtained evidence?
3. Are you comfortable with the possibility that military commissions may simply release detainees?
4. Why would civilians be any more or less likely to convict an accused terrorist and why does this matter?

But, I stand by my position: you seem to WANT the detainees to be convicted? Why is that? Why can't you keep an open mind?

Posted by: S.cotus | Nov 15, 2009 9:43:45 PM

S.cotus --

"The problem, Bill, is that you do no actually respond to any arguments that I made."

Only you didn't make any. Your post consisted, not of arguments, but of attempts to put words in my mouth. Just to be clear about this, I'll quote you verbatim (Nov 15, 2009 8:22:07 PM): "You seem to think that a military court will convict people regardless of the law or evidence. This is a little disturbing. You also seem to think that Americans are incapable of rationally judging evidence unless they are in the military. Why don’t you just come out and say it: you don’t want a fair trial for these people."

After telling me what I must be thinking, you cap it off (Nov 15, 2009 9:43:45 PM) by telling me -- what else -- what I must be "conceding." It turns out that what I am "conceding" are the arguments you never made!

Quite a trick there. In only a few short sentences, you go from strawman assertions to strawman concessions!

It is impossible to have a serious discussion with someone who employs tactics of this sort, and I'm not going to try. It wouldn't make a particle of difference what I say; you're simply going to recast it as you please, or just make it up.

Still, just to be Mr. Nicey, I'll answer some of your concluding points.

"[Y]ou seem to WANT the detainees to be convicted?"

Yup, and executed.

"Why is that?"

Because they're guilty. Not to mention evil.

"Why can't you keep an open mind?"

Because facts count.


Posted by: Bill Otis | Nov 15, 2009 11:41:53 PM

Bill, the 6th Amendment applies to "any criminal prosecution." The speedy trial issue is the same regardless of who tries them.

Of course, what you seem to want is a Soviet style show trial followed by immediate public execution likely in a sport's stadium before a cheering crowd and broadcast live over television ("Tonight on Fox, it is America's Deadliest Executions")

Posted by: virginia | Nov 16, 2009 10:09:14 AM

I give up. Trying to get a straight answer from you, Bill, is impossible.

Posted by: Standifer | Nov 16, 2009 11:41:12 AM

Standifer --

"I give up."

A prudent decision, given your argument.

Of course, your complaint comes hard on the heels of my following dialogue with S.cotus:

S.cotus: "[Y]ou seem to WANT the detainees to be convicted?"

Me: Yup, and executed.

S.cotus: "Why is that?"

Me: Because they're guilty. Not to mention evil.

S.cotus: "Why can't you keep an open mind?"

Me: Because facts count. ###

Those are three straighter answers than I have ever seen from you.

Posted by: Bill Otis | Nov 16, 2009 11:56:50 AM

virginia --

"The speedy trial issue is the same regardless of who tries them."

Nonsense. Do you not understand the difference between a claim brought under the Speedy Trial Act, which applies in civilian court, and one brought under the Sixth Amendment, which applies across the board?

"Of course, what you seem to want is a Soviet style show trial followed by immediate public execution likely in a sport's stadium before a cheering crowd and broadcast live over television ('Tonight on Fox, it is America's Deadliest Executions')"

Congratulations on joining the growing list of KSM fans who like to tell me what I think.

Can I play the game too? How 'bout this: "What you seem to want, virginia, is a circus trial in which KSM will have the chance to showboat his hatred for America, followed by an acquittal that will release him to do it again, only this time with an anthrax bomb."

Now is that a fun game or what?

Actually, it's idiotic and perverse, so can it.

Posted by: Bill Otis | Nov 16, 2009 12:21:37 PM

Bill, you seem to be ignoring that the defendants were not obtainable by the civilian authorities for trial in New York due to being held by the military outside of their jurisdiction as "enemy combatants." They are only now available for trial in New York to face their charges so there shouldn't be a speedy trial issue. Even if the federal charges fall apart, they can still be charged by the three states where 9/11 took place with no speedy trial issues at all under either the Constitution or the state Speedy Trial acts because the defendants were definitely outside of the jurisdiction of the state.

Sorry, sweetie, but you'll have to do better that that next time to put me in my place - I went to public schools in the South, so how hard can it be :P

Ginny :)

Posted by: virginia | Nov 16, 2009 5:50:34 PM

Ginny --

Always good to hear from you. It's been a while since someone called me "sweetie."

"[The defendants] are only now available for trial in New York to face their charges so there shouldn't be a speedy trial issue."

It may be that they won't PREVAIL on a speedy trial claim, and of course I never said they would. But I'll bet you dollars to doughnut holes that a speedy trial challenge is raised under both the Speedy Trial Act, and under the Sixth Amendment, and that each is argued ferociously by defense counsel.

Deal?

Sincerely,
Bill from Neanderthal Land


Posted by: Bill Otis | Nov 16, 2009 7:41:30 PM

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