N.Y. Governor: Sept. 11 Trial a Bad Idea

[bytor2112]

Bad idea? I think so.....

The government's plan to put Khalid Sheikh Mohammed and four others accused of masterminding the 9/11 attacks on trial in Manhattan is a bad idea, Gov. Paterson said today.

[beefche]

I don't understand how it is determined when to have a trial in military court or civilian court. It would seem to me that if an individual is accused of international terrorism and harm to the people of US, then the military would be the venue. But, I'm no lawyer or versed in any kind of law understanding.

Also, what is the difference between civilian court and military court? What are the ramifications of having it in civilian as opposed to military?

[pam]

I guess I'm missing something. Where does it say anything about a military court?

A military court takes jurisdiction over military members. Perhaps you are thinking of military tribunal when it tries people of enemy forces during wartime. We weren't at war then.

Edited November 17, 2009 by pam

[beefche]

Some of the stuff I'm hearing is that conservatives are up in arms that this isn't tried in a military something (court, tribunal, something) and instead is going to be in a civilian court. I don't understand what the difference and why this is causing some people to be upset.

[pam]

Perhaps one reason might be that decisions made in a military tribunal can't be appealed to the federal courts. From what I understand, the President as commander-in-chief would review any appeals. This takes out the years and years of appeals.

[Guest Godless]

Some of the stuff I'm hearing is that conservatives are up in arms that this isn't tried in a military something (court, tribunal, something) and instead is going to be in a civilian court. I don't understand what the difference and why this is causing some people to be upset.

He would have more constitutional rights in a civilian court than he would in a military tribunal, and it's possible that he'd get a lighter sentence. On this, I agree with those who are objecting to this move. He's a war criminal and should be tried as such.

Some are also claiming, however, that giving him a trial in the US would put American lives at risk, and that's a bunch of reactionist hogwash.

[pam]

I agree Godless. No matter where he is tried there is that possibility of reactions. They could hold it in another country and we could have our embassy bombed. It's a scare tactic in my opinion to have it elsewhere. If that is the case, we play into their hands.

Edited November 17, 2009 by pam

[pam]

Though I do have to agree. There are many other places that the trial could be held than right in the heart of where it happened. Perhaps prosecutors are hoping that emotions would be higher and more in their favor than somewhere else because of the location.

[beefche]

How is he going to get a jury of his peers? He's not an American citizen, right? Does that mean we have to import people to be his peers? I mean, seriously, I can't imagine a jury of New Yorkers who will actually treat this guy as innocent until proven guilty. No offense to NYers--it's simply hard for me to imagine him being innocent--too much news has cast him as the mastermind behind 9-11.

[pam]

Where's JAG to give us his legal perspective?

[Just_A_Guy]

I don't have much to add here, Pam. Civilian courts come under Article III of the Constitution, and theoretically you could appeal as high as the Supreme Court. Military tribunals come under Article II - the President of the United States is the highest authority there.

The thing is (and I may be completely off base here), as far as I know -- Just because his Justice department is seeking punishment through an Article III court, doesn't mean the President is waiving his Article II powers over these guys. If the civilian court convicts them, all well and good. But it would be political suicide for the President to let these guys walk if they were acquitted--look for the President to assert his Article II powers and continue holding them. (There will be a double-jeopardy legal war to end all legal wars, but the current administration will step up to fight it because the Dems simply cannot afford to be the party who let the 9/11 hijackers go free.)

My opinion is that Obama's primary aim isn't to get a civil conviction and put these guys away (though doing so would certainly be a PR victory for his administration). I think the primary consideration here is to provide an open forum to review the waterboarding accusations and keep the conservatives playing defense elsewhere as President Obama presses forward with his domestic policy agenda.

Edited November 17, 2009 by Just_A_Guy

[beefche]

JAG, to me that sounds like Bush admin on trial. Now I can understand why conservatives have their panties in a twist.

What a nightmare! Is this the best decision for the country? To open up that can worms for the world to see (and they will be spellbound) and allow our enemies to develop more ammo against us. I don't have the answer, but it just seems that there could be some way to try these men fairly without jeopardizing our country further.

[Just_A_Guy]

Well, my (partisan) opinion is that yes; Obama is trying to inflame the country against Bush in order to drum up support for his own domestic agenda.

But I can see both sides of it. Subjecting "terrorists" to our civilian criminal system--and getting them convicted thereunder--would be a win all around, at least in the short term (I wouldn't venture a guess on what kind of precedent it might set in the long run). A lot of this is just going to depend on who the federal judge is that winds up with the case, how tight of a courtroom he/she runs, and whether he/she is able to keep the whole thing from becoming a circus.

[Moksha]

Could these four men be drafted into the Army beforehand to circumvent a civilian trial? I think this is a wacky idea, but if folks want a military trial bad enough then this is a possibility. Of course it would need to break American and international, but that is the price for picking the right venue and jury. Right?

[Just_A_Guy]

I don't see how we could, Moksha. If they're non-citizens, that smacks of impressment--we fought a war a couple of centuries ago to specifically stop that from happening (to our guys, anyways). If they're citizens, I think you've got 13th Amendment concerns unless it's a general draft that applies to everybody. There's LOTS of case law on the right way vs. the wrong way to impose a draft, and I don't pretend to be remotely familiar with it.

[FunkyTown]

Well... As a dissenting voice, I should point out that everyone... Everyone... Deserves a fair trial.

The reason some might argue against a military tribunal is that a military tribunal might be hid away from the public and thus result in an unfair trial while a civilian trial might not.

The simple fact is that we don't know if he did it. That's what a trial is for. There's no purpose to a sham trial and, in fact, a sham trial is just as bad as having the government say 'That guy did it.' and shooting him without investigation.

Remember that whatever justice you allow those you disagree with will be the justice that you would want allowed to you.

[bytor2112]

The reason some might argue against a military tribunal is that a military tribunal might be hid away from the public and thus result in an unfair trial while a civilian trial might not.

So...your saying that if a military tribunal were held...he wouldn't get a fair shake? Why not? What if the media were allowed in for the trial? Is the military considered....corrupt?

Sen. Kyl said the following to Attorney General Holder:"How could you be more likely to get a conviction in a civilian court than in a military court when Khalid Sheik Mohammad has already pled guilty and asked for the death penalty before a military commission?"

If as Holder asserts that the death penalty is what he is after......then why not proceed with the military tribunal?

[Guest]

JAG, I've been meaning to research this, but I just haven't got the time to do so... what is the protocol for trying a prisoner of war? With Saddam, his crimes was against the people of Iraq, so he got sent back to Iraq to be tried by their Special Tribunal. He wasn't tried in civilian court. What is the precedent for this? Did we capture anybody for the incident in Pearl Harbor in WWII (since the US was officially not at war when Pearl Harbor got attacked, this would be analogous to 9-11)?

I see Funkytown's point on the matter (like McVeigh tried in civilian court or Imelda Marcos tried similarly). But, even if his crime was committed before the US declared war against terrorists, he was captured during the war. I believe he was designated a pow.

JAG, thoughts?

[Guest Godless]

JAG, I've been meaning to research this, but I just haven't got the time to do so... what is the protocol for trying a prisoner of war? With Saddam, his crimes was against the people of Iraq, so he got sent back to Iraq to be tried by their Special Tribunal. He wasn't tried in civilian court. What is the precedent for this? Did we capture anybody for the incident in Pearl Harbor in WWII (since the US was officially not at war when Pearl Harbor got attacked, this would be analogous to 9-11)?

Pearl Harbor wasn't a war crime, so there was no basis for legal action. The only precedent that I can think of is Nuremberg. KSM was involved in planning an act of war, and the nature of that act makes him a war criminal. Thus, I believe that there's plenty of justification for a military tribunal.

[Just_A_Guy]

Anatess, I just don't have the expertise to say much more than I already have. I think that with Saddam, his trial was governed by procedures set in place by whatever government was in place at the time in Iraq--technically, all we did was extradite the guy. (Except insofar as we may have basically selected the Iraqi government ourselves. I'm not even gonna go there. )

[bytor2112]

The exchange started with Graham stumping Holder with a question one would have thought the attorney general would have been prepared for:

GRAHAM: Can you give me a case in United States history where a (sic) enemy combatant caught on a battlefield was tried in civilian court?

ATTY GEN. HOLDER: I don't know. I'd have to look at that. I think that, you know, the determination I've made --

SEN. GRAHAM: We're making history here, Mr. Attorney General. I'll answer it for you. The answer is no.

ATTY GEN. HOLDER: Well, I think --

SEN. GRAHAM: The Ghailani case -- he was indicted for the Cole bombing before 9/11. And I didn't object to it going into federal court. But I'm telling you right now. We're making history and we're making bad history. And let me tell you why.

If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?

ATTY GEN. HOLDER: He would certainly be brought to justice, absolutely.

SEN. GRAHAM: Where would you try him?

ATTY GEN. HOLDER: Well, we'd go through our protocol. And we'd make the determination about where he should appropriately be tried.

SEN. GRAHAM: Would you try him -- why would you take him someplace different than KSM?

ATTY GEN. HOLDER: Well, that might be the case. I don't know. I'm not --

SEN. GRAHAM: Well, let --

ATTY GEN. HOLDER: I'd have to look at all of the evidence, all of the --

SEN. GRAHAM: Well --

ATTY GEN. HOLDER: He's been indicted. He's been indicted already. (Off mike.)

SEN. GRAHAM: Does it matter if you -- if you use the law enforcement theory or the enemy combatant theory, in terms of how the case would be handled?

ATTY GEN. HOLDER: Well, I mean, bin Laden is an interesting case in that he's already been indicted in federal court.

SEN. GRAHAM: Right.

ATTY GEN. HOLDER: We have cases against him. (Off mike.)

SEN. GRAHAM: Right, well, where would -- where would you put him?

ATTY GEN. HOLDER: It would depend on how -- a variety of factors.

SEN. GRAHAM: Well, let me ask you this. Okay, let me ask you this. Let's say we capture him tomorrow. When does custodial interrogation begin in his case?

If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?

ATTY GEN. HOLDER: Again I'm not -- that all depends. I mean, the notion that we --

SEN. GRAHAM: Well, it does not depend. If you're going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you're criminalizing the war, that if we caught bin Laden tomorrow, we'd have mixed theories and we couldn't turn him over -- to the CIA, the FBI or military intelligence -- for an interrogation on the battlefield, because now we're saying that he is subject to criminal court in the United States. And you're confusing the people fighting this war.

What would you tell the military commander who captured him? Would you tell him, "You must read him his rights and give him a lawyer"? And if you didn't tell him that, would you jeopardize the prosecution in a federal court?

ATTY GEN. HOLDER: We have captured thousands of people on the battlefield, only a few of which have actually been given their Miranda warnings.

With regard to bin Laden and the desire or the need for statements from him, the case against him at this point is so overwhelming that we do not need to --

SEN. GRAHAM: Mr. Attorney General, my only point -- the only point I'm making, that if we're going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court. And what comes with being in federal court is that

the rules in this country, unlike military law -- you can have military operations, you can interrogate somebody for military intelligence purposes, and the law-enforcement rights do not attach.

But under domestic criminal law, the moment the person is in the hands of the United States government, they're entitled to be told they have a right to a lawyer and can remain silent. And if we go down that road, we're going to make this country less safe. That is my problem with what you have done.

You're a fine man. I know you want to do everything to help this country be safe, but I think you've made a fundamental mistake here. You have taken a wartime model that will allow us flexibility when it comes to intelligence gathering, and you have compromised this country's ability to deal with people who are at war with us, by interjecting into this system the possibility that they may be given the same constitutional rights as any American citizen.

And the main reason that KSM is going to court apparently is because the people he decided to kill were here in America and mostly civilian, and the person going into military court decided to kill some military members overseas. I think that is a perversion of the justice system.

ATTY GEN. HOLDER: What I said repeatedly is that we should use all the tools available to us: military courts, Article III courts. The conviction of Osama bin Laden, were he to come into our custody, would not depend on any custodial statements that he would make. The case against him, both for those cases that have already been indicted --- the case that we could make against him for the -- his involvement in the 9/11 case --

SEN. GRAHAM: Right --

ATTY GEN. HOLDER: -- would not be dependent on Miranda warnings --

SEN. GRAHAM: Mr. Attorney --

ATTY GEN. HOLDER: -- would not be dependent on custodial interrogations. And so I think in some ways you've thrown up something that is -- with all due respect, I think is a red herring.

SEN. GRAHAM: Well --

ATTY GEN. HOLDER: It would not be something -- (inaudible) --

SEN. GRAHAM: With all due respect, every military lawyer that I've talked to is deeply concerned about the fact that, if we go down this road, we're criminalizing the war and we're putting our intelligence-gathering at risk. And I will have some statements from them to back up what I'm saying.

SEN. LEAHY: Senator Graham, I --

SEN. GRAHAM: My time is up. I look forward to talking to you.

ATTY GEN. HOLDER: Sure.

SEN. LEAHY: And I --

SEN. GRAHAM: We can -- there are some issues we can agree on.

ATTY GEN. HOLDER: One thing I would say: that, with regard to those people who are captured on the battlefield, we make the determinations every day as to who should be Mirandized, who should not. Most are not Mirandized. And the people who are involved in that decision involve not only lawyers and agents but also military personnel who make the determination as to who should be Mirandized.

But again, the notion that a conviction of Khalid Sheikh Mohammed would depend on his getting Miranda rights is simply not accurate.

[FunkyTown]

So...your saying that if a military tribunal were held...he wouldn't get a fair shake? Why not? What if the media were allowed in for the trial? Is the military considered....corrupt?

Sen. Kyl said the following to Attorney General Holder:"How could you be more likely to get a conviction in a civilian court than in a military court when Khalid Sheik Mohammad has already pled guilty and asked for the death penalty before a military commission?"

If as Holder asserts that the death penalty is what he is after......then why not proceed with the military tribunal?

All right. Let's take out the name 'Khalid Sheik Mohammad' and put in 'Bytor' instead. I'm not saying the military is corrupt, that the government is corrupt or anything of the sort. Instead, I'm saying when there is no transparency, these things could be corrupt.

In a military court, there are different rules of evidence. For instance, Hearsay and illegally obtained statements are thrown out in a civilian court of law. In a military court of law, the presiding officer has broad discretion to close the proceedings.

Until this man is declared guilty in a fair and reasonable trial, we have to assume he's innocent.

The military tribunal simply allows for too much personal discretion in convicting someone.

[Hemidakota]

Some of the stuff I'm hearing is that conservatives are up in arms that this isn't tried in a military something (court, tribunal, something) and instead is going to be in a civilian court. I don't understand what the difference and why this is causing some people to be upset.

Being flustered here at this lack of a real 'spinal cord' with our poor excuse of a justice system. He should be tried by a military court and not some pansy civilian court. Think mistrials and the man is back to his old ways.

[bytor2112]

All right. Let's take out the name 'Khalid Sheik Mohammad' and put in 'Bytor' instead. I'm not saying the military is corrupt, that the government is corrupt or anything of the sort. Instead, I'm saying when there is no transparency, these things could be corrupt.

In a military court, there are different rules of evidence. For instance, Hearsay and illegally obtained statements are thrown out in a civilian court of law. In a military court of law, the presiding officer has broad discretion to close the proceedings.

Until this man is declared guilty in a fair and reasonable trial, we have to assume he's innocent.

The military tribunal simply allows for too much personal discretion in convicting someone.

Check out post #21 with the exchange between Holder and Graham. Graham spells it out pretty well.

[FunkyTown]

Check out post #21 with the exchange between Holder and Graham. Graham spells it out pretty well.

That doesn't really answer my questions, Bytor. I was saying to replace his name with yours.

And when was war declared? Who signed the declaration of war? Against what country? If not against country, who is the war against?

If you say 'Terrorism', then define what a terrorist is. I can promise you that when the UN asked the US to define terrorism, they were given the simple answer 'No'.

The senator refers to 'Bad history'. This whole war on terrorism is unprecedented history, since it doesn't involve declaring war on an actual country. Beating Iraq wouldn't stop terrorism any more than invading Switzerland would stop cheese production.

In fact, the closest 'war' that the War on Terrorism has to something that has happened in the past is the US War on Drugs. In that, Americans invaded Panama and arrested Manuel Noriega.

And Noriega was read his Miranda rights.