Thursday, March 18, 2010

In which right-wing nutjobs offer a correct analysis of the plan to try KSM.

I've recently read (or read accounts of) three different attacks on the idea of a civilian trial for Khalid Sheikh Mohammed: here, here, and here. And, although it's clear that everyone involved in writing these pieces is an asshole, it's worth admitting that they're also right.

The argument goes like this: the US government is attempting to use a civilian trial of Khalid Sheikh Mohammed to give some legitimacy to his impending execution. But the reason why civilian trials grant legitimacy to punishments is largely because they presume innocence, and make you prove guilt with admissible (i.e., non-torture-derived) evidence before you can apply those punishments. In this case, the ability to do that is far from assured -- a lot of the evidence will be thrown out on the basis of waterboarding, and there's a reasonable chance that a good court would throw out the entire fucking case due to prosecutorial misconduct.

But the administration has made it clear they don't give a shit about any of that. Just look at the disgusting smirk on Press Secretary Robert Gibbs's face when he says KSM "is going to meet justice, and he's going to meet his maker." And Attorney General Eric Holder's claim that "failure is not an option" clearly doesn't fit well with the whole presumption-of-innocence thing, either.

And in general, the Obama administration has made clear they think they get to hold suspected terrorists without trial. So it seems clear that, pretty much no matter what happens in the courtroom, KSM's never going to see the outside again. I believe the correct phrase for a trial that fits this description is "show trial."

Furthermore, this puts some fucked-up strain on the judges involved in the trial and the appeal: the courts have to either find a way to a conviction, or be rendered irrelevant. Either way, there are potentially disastrous consequences: either we set a precedent of allowing inadmissible evidence in certain cases, or we end up in a situation where the executive branch can not only hold someone without trial, they can hold them after an acquittal.

If you're going to try him, you have to be committed to live with the results of that trial. And that might mean an acquittal. If you're not going to do that, the neocons are right. Don't bother with a trial.

1 comment:

  1. I think presumption of innocence is the judge rather than the prosecution. It doesn't really bug me for the prosecution to say "we're pretty sure we can get a conviction here."

    And judges are a wily bunch. I think in a couple terrorism trials recently they've asserted jurisdiction and rendered orders that have surprised and frustrated the executive branch. Maybe they should have more, and certainly they should have sooner, but they haven't been entirely spineless.

    It's an interesting thought experiment about what would happen if the trial judge acquitted him on grounds of prosecutorial misconduct and ordered him released, and the DoJ lost all their appeals. Presumably it would mean in future trials you have to choose between waterboarding a guy and putting him on trial in a civilian court (in some sense, the Obama administration got dealt a bum hand on that one). And presumably the administration would assert an executive branch right to hold him as an enemy combatant despite the court's order, presumably the Supreme Court would accept jurisdiction, and presumably they would answer that issues of wartime executive power are a political question to be answered in the interplay between Congress and the president, and presumably Congress would not exercise its option to make it clear that the president can't indefinitely hold an assumed-guilty terrorist despite a court order.

    If you wanted to change Congress' attitudes on that, my two best ideas are (a) get the tea partiers fired up about the issue, or (b) get veterans' groups to say that their oath is to defend the constitution and that giving up liberty is disrespectful to our troops' sacrifice. I think if someone introduced a bill like that you could get farther trying to recruit Republicans than Democrats.

    In summary, I think the veterans' groups faux-libertarian Republican leaders are at fault here, not Eric Holder.



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