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The United States v. Khalid Shaikh Mohammed, et al
There were so many other things that seemed to be good subjects for a post this week. Then this jumped out of today's New York Times :
and everything else that seemed worth writing about was washed away by the answer to that question. The answer to the question is not a difficult one, but bears repetition and, sadly, needs explication. The answer is that we are the United States of America.
In the United States of America (and most common law countries which enjoy the legal system developed after Magna Carta was forced upon King John in the 13th century) the victims of and witnesses to the most horrible crimes are forced to relive those moments every day in courts all over this country and the rest of the common law countries. Not once, not twice, but often many times they are required to tell strangers about the horrible traumatic things they saw or that happened to them and, at some point, to say those things with the person they believe is responsible for that crime staring right at them, with a lawyer who is entitled to ask them questions to try to show that they were wrong---that's not what happened, or this is not the person who did that to you.
The hero of so many conservatives, Justice Antonin Scalia has, indeed, been extraordinarily protective of this constitutional right of a criminal defendant to confront his or her accusers. To Justice Scalia, and a majority of the Supreme Court, many modern devices to ameliorate the effects of this rule on the victims of crimes, or to prevent a defendant from benefiting from conduct which prevents the witness from testifying, violate the Constitution:
He says that while
Crawford v. Washington, 541 U.S. 36 (2004).
The victims and witnesses to the horrible events of September 11, 2001 will never stop reliving them, but to force them to do so in public, in a court of law is not an easy thing to contemplate. But our law does not have a special rule for cases that seem particularly horrible to allow that the person charged with its commission can be hanged for that reason alone. The crime of which you or a loved one is the victim is the worst one ever, yet the defendants in those cases get to force those witnesses to testify every day.
Neither, contrary to what even experienced lawyers who know better have tried to blather all over tv for a day or so, do we have different rules applicable to citizens than the ones which applies to non-citizens. Peter King once ran for Attorney General of New York, and Joseph Lieberman was once the Attorney General of Connecticut. Somehow, though, this Lieberman (similar to a comment I heard from King) can
say with a straight face that:
War criminals? These are people fighting a "war"? No. These people are conspirators, not warriors. Wars, for better or worse, are fought by people wearing the uniform of a nation which feels aggrieved. Other times, people fight against the police and military of a government which they believe to be responsible for oppressing them. Flying airplanes into an office building where people are going to work, for an import-export company, a law firm, a stock broker, a government agency watching over stockbrokers, an insurance company, a newsstand, the guy who shines shoes, or sells flowers or tickets to a Broadway show or plays the piano in a lobby of the bank on the southeast corner of the Trade Center, is not an act of war. It is murder. The people who did it, who planned it, who paid for it and who assisted those who did all of that, are not anyone's war hero or martyr to any political cause as an enemy of our country. They are cowards, and they are criminals.
Can they get a fair trial? I cannot see why not. We all know what happened that day. That is not the issue. The question will be whether it can be established beyond a reasonable doubt that these defendants committed acts in furtherance of this crime. That somebody bragged that he was the mastermind, while claiming to being a prisoner of war, does not establish that he was responsible and I am sure that a good judge can find twelve jurors and a few alternates who will listen to the evidence and draw reasonable conclusions from it. As has often been noted, if you were convinced on November 23, 1963 as to who killed President Kennedy, by the same date a year later you could easily have found a jury that needed evidence to prove it was Lee Oswald.
Will some of the evidence be suppressed because of how it was obtained? Sure. That's what makes us the country we are. Politicians who utter the word "Miranda" with a sneer either do not know what they are talking about
or are simply trying to curry favor with people who do not value what this country is all about. It was a Republican former Governor of California, after all, who wrote these words on behalf of the Supreme Court:
Miranda v. Arizona, 384 U.S. 436, 458 (1966).
Many people, including the guy posting as Barth, believe that courts have misconstrued the requirements of Miranda and the like and suppressed statements which ought to be admissible evidence for a jury to accept or reject as the evidence directs, but we can be reasonably confident that only those statements which were unquestionably obtained by means which offend our Constitution will be excluded in this trial and, frankly, the case law that develops from this litigation will probably move the courts to a more appropriate place for use in other cases to come.
But nobody can keep practicing law in our courts, or prosecuting criminal cases if there are crimes which our courts are incapable of resolving. The jury system does not always work as well as it might: jurors, as with the rest of the public, are increasingly stupid and unable to understand some of the simplest concepts which is why, it seems, we often see acquittals in financial fraud cases, where some degree of complexity exists.
That, no doubt, will not happen here. The Attorney General of the United States happens to be a career prosecutor. He knows how to evaluate a case as do the many prosecutors more directly responsible for this trial. Hours after the Trade Center, my own workplace for many years, fell, I heard jurors from the trial for the 1993 bombing explain on the radio why, based on what they learned from that experience, there was no question that Al Qaeda was responsible, at a time when the rest of us seemed confused. That is what good prosecutors do, and what is likely to happen in this trial. New York City can handle it. Of that there should be no question. If it cannot, we are in bigger trouble than can be resolved by determining where to try this case.
One does not have to be a supporter of the death penalty to shed not a tear or lose a moment of sleep, if, after such a trial, these people are unanimously found to be guilty beyond a reasonable doubt and are thereafter executed. And if and when that occurs, we can hold our heads up quite high and tell the rest of the world that that is who we are.
-----
Since other obligations generally require that one full post appear under this name, a few other thoughts, which might have been more carefully made had not this KSM thing happened, should at least be listed here with the hope that someone else can fill in the blanks or might still be worth writing about a week hence.
For instance, there is this foolish debate about the supposed failures of the Obama administration or the more important one, about how a president goes about deciding what to do at a critical moment in a war far from our shores, which Rachel Maddow (naturally) explained well with the help of Gordon Goldstein.
There really is an even more significant and truly overarching issue which strikes me every day particularly when I hear Regina Spektor sing, as she did in a movie over the summer which I still have not seen
The issues which were important last year, still are today. You cannot expect to wake up every four years, wear a button, even go to a rally, and push a lever, then walk away and think that if your guy wins all will be well. That's NOT how it works, as Regina might say. Let's talk about that next week.
Margit Arias-Kastell lost her husband, Adam Arias, in Tower 2. She, too, could not countenance the prospect of the suspects being defended by lawyers in a court in her city. She was among scores of relatives who had signed a letter opposing regular criminal trials for them.
"It's totally unfair," she said. "Why do we have to constantly relive this? When do we get to be at peace? They should be hung."
and everything else that seemed worth writing about was washed away by the answer to that question. The answer to the question is not a difficult one, but bears repetition and, sadly, needs explication. The answer is that we are the United States of America.
In the United States of America (and most common law countries which enjoy the legal system developed after Magna Carta was forced upon King John in the 13th century) the victims of and witnesses to the most horrible crimes are forced to relive those moments every day in courts all over this country and the rest of the common law countries. Not once, not twice, but often many times they are required to tell strangers about the horrible traumatic things they saw or that happened to them and, at some point, to say those things with the person they believe is responsible for that crime staring right at them, with a lawyer who is entitled to ask them questions to try to show that they were wrong---that's not what happened, or this is not the person who did that to you.
The hero of so many conservatives, Justice Antonin Scalia has, indeed, been extraordinarily protective of this constitutional right of a criminal defendant to confront his or her accusers. To Justice Scalia, and a majority of the Supreme Court, many modern devices to ameliorate the effects of this rule on the victims of crimes, or to prevent a defendant from benefiting from conduct which prevents the witness from testifying, violate the Constitution:
He says that while
the [Confrontation]Clause's ultimate goal is to ensure reliability of evidence ... [i]t commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.
Crawford v. Washington, 541 U.S. 36 (2004).
The victims and witnesses to the horrible events of September 11, 2001 will never stop reliving them, but to force them to do so in public, in a court of law is not an easy thing to contemplate. But our law does not have a special rule for cases that seem particularly horrible to allow that the person charged with its commission can be hanged for that reason alone. The crime of which you or a loved one is the victim is the worst one ever, yet the defendants in those cases get to force those witnesses to testify every day.
Neither, contrary to what even experienced lawyers who know better have tried to blather all over tv for a day or so, do we have different rules applicable to citizens than the ones which applies to non-citizens. Peter King once ran for Attorney General of New York, and Joseph Lieberman was once the Attorney General of Connecticut. Somehow, though, this Lieberman (similar to a comment I heard from King) can
say with a straight face that:
"The terrorists who planned, participated in and aided the September 11, 2001, attacks are war criminals, not common criminals. Not only are these individuals not common criminals but war criminals, they are also not American citizens entitled to all the constitutional rights American citizens have in our federal courts"
War criminals? These are people fighting a "war"? No. These people are conspirators, not warriors. Wars, for better or worse, are fought by people wearing the uniform of a nation which feels aggrieved. Other times, people fight against the police and military of a government which they believe to be responsible for oppressing them. Flying airplanes into an office building where people are going to work, for an import-export company, a law firm, a stock broker, a government agency watching over stockbrokers, an insurance company, a newsstand, the guy who shines shoes, or sells flowers or tickets to a Broadway show or plays the piano in a lobby of the bank on the southeast corner of the Trade Center, is not an act of war. It is murder. The people who did it, who planned it, who paid for it and who assisted those who did all of that, are not anyone's war hero or martyr to any political cause as an enemy of our country. They are cowards, and they are criminals.
Can they get a fair trial? I cannot see why not. We all know what happened that day. That is not the issue. The question will be whether it can be established beyond a reasonable doubt that these defendants committed acts in furtherance of this crime. That somebody bragged that he was the mastermind, while claiming to being a prisoner of war, does not establish that he was responsible and I am sure that a good judge can find twelve jurors and a few alternates who will listen to the evidence and draw reasonable conclusions from it. As has often been noted, if you were convinced on November 23, 1963 as to who killed President Kennedy, by the same date a year later you could easily have found a jury that needed evidence to prove it was Lee Oswald.
Will some of the evidence be suppressed because of how it was obtained? Sure. That's what makes us the country we are. Politicians who utter the word "Miranda" with a sneer either do not know what they are talking about
or are simply trying to curry favor with people who do not value what this country is all about. It was a Republican former Governor of California, after all, who wrote these words on behalf of the Supreme Court:
The ... practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles - that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.
Miranda v. Arizona, 384 U.S. 436, 458 (1966).
Many people, including the guy posting as Barth, believe that courts have misconstrued the requirements of Miranda and the like and suppressed statements which ought to be admissible evidence for a jury to accept or reject as the evidence directs, but we can be reasonably confident that only those statements which were unquestionably obtained by means which offend our Constitution will be excluded in this trial and, frankly, the case law that develops from this litigation will probably move the courts to a more appropriate place for use in other cases to come.
But nobody can keep practicing law in our courts, or prosecuting criminal cases if there are crimes which our courts are incapable of resolving. The jury system does not always work as well as it might: jurors, as with the rest of the public, are increasingly stupid and unable to understand some of the simplest concepts which is why, it seems, we often see acquittals in financial fraud cases, where some degree of complexity exists.
That, no doubt, will not happen here. The Attorney General of the United States happens to be a career prosecutor. He knows how to evaluate a case as do the many prosecutors more directly responsible for this trial. Hours after the Trade Center, my own workplace for many years, fell, I heard jurors from the trial for the 1993 bombing explain on the radio why, based on what they learned from that experience, there was no question that Al Qaeda was responsible, at a time when the rest of us seemed confused. That is what good prosecutors do, and what is likely to happen in this trial. New York City can handle it. Of that there should be no question. If it cannot, we are in bigger trouble than can be resolved by determining where to try this case.
One does not have to be a supporter of the death penalty to shed not a tear or lose a moment of sleep, if, after such a trial, these people are unanimously found to be guilty beyond a reasonable doubt and are thereafter executed. And if and when that occurs, we can hold our heads up quite high and tell the rest of the world that that is who we are.
-----
Since other obligations generally require that one full post appear under this name, a few other thoughts, which might have been more carefully made had not this KSM thing happened, should at least be listed here with the hope that someone else can fill in the blanks or might still be worth writing about a week hence.
For instance, there is this foolish debate about the supposed failures of the Obama administration or the more important one, about how a president goes about deciding what to do at a critical moment in a war far from our shores, which Rachel Maddow (naturally) explained well with the help of Gordon Goldstein.
There really is an even more significant and truly overarching issue which strikes me every day particularly when I hear Regina Spektor sing, as she did in a movie over the summer which I still have not seen
Power to the people
We don't want it
We want pleasure
And the TVs try to rape us
And I guess that they're succeeding
The issues which were important last year, still are today. You cannot expect to wake up every four years, wear a button, even go to a rally, and push a lever, then walk away and think that if your guy wins all will be well. That's NOT how it works, as Regina might say. Let's talk about that next week.
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This is such a FINE ESSAY. I focus on this paragraph because it brings to the fore something that just pisses me off.
The attorneys for rush limbaugh certainly claimed Miranda rights, rights against self-incrimination, rights against search and seizure.
So did the attorneys for the two stock brokers who just won their criminal cases and countless other wall street magnates charged with crimes, at least so far.
When the totalitarianists are caught, hell they run for the constitution like a desert dog runs to the water fountain.
Just my own little rant. Do not mean to spoil your fine blog.
November 14, 2009 1:47 PM | Reply | Permalink
You spoil nothing, just flatter me. And you add to the point. It is sad that in our system guilty people sometimes go free. Is there anyone who does not think Ted Stevens broke the law? Oliver North escaped prison because of the way the Fifth Amendment has been interpreted.
Fortunately, these are the exceptions and not the rule. I have little doubt that KSM and his cronies will be convicted.
November 14, 2009 1:58 PM | Reply | Permalink
You spoil nothing, just flatter me. And you add to the point. It is sad that in our system guilty people sometimes go free. Is there anyone who does not think Ted Stevens broke the law? Oliver North escaped prison because of the way the Fifth Amendment has been interpreted.
Fortunately, these are the exceptions and not the rule. I have little doubt that KSM and his cronies will be convicted.
November 14, 2009 2:18 PM | Reply | Permalink
Of course the Bush Republicans would just as soon keep it out of the Courts.
I remember reading a report around the time of the 911 attacks.
The CIA had declared war on the Taliban.
What part of declaring war, on a Nation and then not to expect an attack by the aggrieved party?
So the CIA might have to face up to the reality, that it provoked retaliation and did nothing, to avert an attack; despite the briefing memos Bin laden determined to attack America.
http://www.thesmokinggun.com/archive/0409041pdb1.html
Let the truth come out. Shine the light on everyone’s complicity.
Don’t rush to condemn anyone to hanging, like they did Saddam Hussein, who wasn’t allowed to bring forth an adequate defense. A defense the United States would have found embarrassing.
http://www.thirdworldtraveler.com/Afghanistan/Afghanistan_CIA_Taliban.html
www.counterpunch.org/tomenron.html
Yes! there are bad people in the world, doesn't mean I have to be one too, does it?
Evidently the US is good on the offense, lobbing cruise missles and bombs, but when it came to defending it's citizens; we're weak on defense?
The whole Nation suffers as a result.
Republicans being strong on defense, rings hollow.
How uncomfortable to Republicans to let the attacked, who became attackers, to have a day in court.
The truth might come out? Unless of course; to be a strong Nation we must defend liars.
November 14, 2009 3:53 PM | Reply | Permalink
I reject most of what you have written here. The CIA, nor any other agency of the government, "provoked" any attack. That is a canard, and a disgrace and is the "tea party of the left" type of thing used to discredit progressives.
Moreover, given what the Taliban was doing in Afghanistan, even beyond harboring Al Qaeda, an international force to remove them from Afghanistan would have had the same moral force as the similar effort in Bosnia, but the international community (including the United States) did not care much about the Afghans, so it did not happen.
But whatever should have been done, posting drivel---and incendiary drivel at that---disgusts me and makes me reconsider whether I should have posted anything on the subject at all given the numbskulls who can try to twist it to support their own tin foil crap.
(If I sound angry; it is because I am. The idea that there was even the remotest justification for what happened on 9/11 is an abomination).
November 14, 2009 4:49 PM | Reply | Permalink
There was never any justification for what these assholes did. It was planned, premeditated murder. It took money and a lot of time and it took as its aim, mostly innocent people who were simply doing their jobs.
I know. I get so mad at what happened after this mad act of terror, that I forget how inhumane the act itself was.
I am not defending these people at all. I mean the pentagon attack might have made some sense but the people in the plane, the weapon used, had nothing to do with nothing.
And those poor brave people on the fourth plane, what heroes and heroines they were.
See, I am going off again. The left, for the most part, never justified or condoned this horrible act.
November 15, 2009 12:07 AM | Reply | Permalink
These terrorists could get a fair trial without having a criminal trial. The military tribunal process has been around for a very long time and seems to work just fine. And even Mr. Holder thinks that military tribunals are the appropriate place for the people behind the USS Cole. But somehow he treats the 9/11 terrorists differently. Why the difference?
My guess is that one or more of these detainees will be released on procedural grounds, perhaps because they were not read their Miranda rights. And that will be a travesty.
Is that what you want?
And I bet you don't live or work in New York. Because this trial that Mr. Holder has convened will invite grave and unnecessary security risks with terrorists all over the world salivating at the opportunity to strike in NYC in front of a huge stage.
Foreign terrorists who wage war against the United States have no place sitting in a court that upholds the values that they so greatly detest. I think Mr. Holder has honored the mass murder of 9/11 just like it was any other crime.
November 14, 2009 11:43 PM | Reply | Permalink
A criminal trial worked just fine for the "blind sheikh" (Omar Abdel-Rahman). How come no one complained then? How is the 2001 attack different than the 1993 attack? They were only different in size - not in nature or purpose or general result (i.e. terror, death, destruction). The criminal system held up just fine, thank you. (I could list many similar cases).
...also... do you really think that it's an honor to Al Qaeda for us to treat 9/11 as a crime? I'm confident that they (Al Qaeda) would much rather us treat it as an act of war... that gives them standing as the equivalent of a national power... pursuing national aims (jihad and all of that). A criminal, on the other hand, has no status. A criminal is a lowly thing no matter how you look at it. No legitimate power can simply have criminal aims... Whereas plenty of legitimate powers pursue war to protect their interests. What exactly separates Al Qaeda from numerous other terrorist organizations in the past and present? I submit that there is no important difference... they are simply a band of detestable criminals, nothing more.
November 15, 2009 3:09 AM | Reply | Permalink
I would also argue that the blind sheikh's trial also should not have been aired publicly in the criminal court system. I agree that 9/11 isn't much different than the 1993 bombinb. There is a lot of classified government information that will inevitably get leaked through a criminal court system. I think it's more appropriate to do that in a military court.
November 15, 2009 10:01 AM | Reply | Permalink
1. I live and work in New York. I used to work, as a matter of fact, in 2 World Trade Center and I commuted to work and occasionally still do, through the Trade Center. I knew a fair number of people who were killed there and a number of people who lost spouses or siblings there.
2. The Cole was a military target on foreign soil.
3. When a statement is taken in violation of, say, Miranda, it is "suppressed" meaning, it generally cannot be used at the trial. It does not mean that the defendant goes free "on a technicality." That happens on tv only. Believe me. I know.
4. There will be no travesty. If there is, we are in more trouble than a trial will establish.
November 15, 2009 10:30 AM | Reply | Permalink
#1 applies to me as well and I still work downtown. Which is why I am so surprised that a fellow New Yorker like you would want KSM and his colleagues put through the media circus of a criminal trial just a few blocks from Ground Zero.
I'm really not sure why US versus foreign soil matters. But do you think that if FDR had captured the Japanese military that bombed Pearl Harbor, we would have brought them back to Hawaii and tried them in federal court? No, instead FDR ordered his execution. That should tell you something.
As far as procedural technicalities only happening on TV, I hope you're right. (and I hope that you're a lawyer who knows better than me, because I'm not a lawyer but have spoken to others who are). While a procedural dismissal or acquittal is unlikely, just the fact that it's a remote possibility disturbs me.
And KSM's lawyers will have at their disposal all the rules available to any American defendant, including exclusion of evidence because torture was used or defendants were questioned too harshly. And how does KSM get a fair trial unless he and his lawyers have access to all of the classified and top secret documents which the government has put together over the last 8 years?
It already is a travesty because it will be such a media circus that could have been avoided if we kept it in a military court.
November 15, 2009 11:53 AM | Reply | Permalink
About the Japanese at Pearl Harbor: they were, as my original post explained, military officers of the Empire of Japan, serving an military objective. Had the planners or those who carried out those orders been captured they would have been treated as prisoners of war. The execution of a prisoner of war, except under unusual circumstances and following a court martial, is, in fact, a war crime.
The Geneva Convention in force at the time of World War II is here.
President Roosevelt did not "order" anyone's execution. The president, even as commander in chief, does not have that authority, and, contrary to what the immediate prior president believed, he is not the equivalent of the English monarch in the twelfth century.
Admiral Yamamoto, who many see as the architect of Pearl Harbor, was shot down in a well panned ambush in the air in World War II. I am certain the President was aware of the plan, but that does not qualify as an execution, but rather a military mission against a uniformed officer of an enemy at war, but the debate over its legality, such as it was, was discussed in its usually well written way by the great television show The West Wing a few years back.
Yes, I am a lawyer and I practice in this area. I cannot help you with fears over what "might" happen, only about what things are likely to happen.
I do not think the law is arbitrary and rootless as you (and your lawyer friends) apparently believe. Your lawyer friends ought to consider another line of work if they think the law is as bad as some of what passes for legal thought seems to suggest.
Yes, there are times when a judge suppresses evidence or otherwise renders a successful prosecution to be impossible when they should not have done so. Sometimes it is because the law has developed in an unnecessarily restricted way and some of us work very hard to have that changed. Those laws should be addressed differently not based on who the defendant is, but because they are wrong.
More often when evidence is wrongly suppressed it is because the judge interpreted the law incorrectly. Sometimes appeals from those orders are successful; other times not. When that happens, it is generally because the judge made an honest mistake, not because he or she wants to free criminals.
The discovery of state secrets issue came up in the Ramzi Yusef trial (in 2001, by the way) for the first Trade Center bombing. The defendant got nothing which could be used against the United States.
Judges are human beings, too. I cannot think of a judge who is going to go out of her or his way to find a way to let KSM or his co-defendants wriggle out of a conviction. I would be surprised if, notwithstanding the thumb suckers on Sunday morning tv, that KSM will be allowed to plead guilty and demand his own execution, but given the Attorney General's background and experience, and the rest of the Justice Department, they would not proceed to trial on this case without quite enough evidence to prove guilt beyond a reasonable doubt.
In Stalin's Soviet Union people were executed after secret trials. We are a different people, thank God and thanks to our Founders. You call that a circus. I call it freedom. If you think broadcasters and print journalists should not make this into a circus, you ought to tell them that.
(The cases that caused cameras to be banned from courtrooms for many years, one of the first "trials of the century" was the Hauptmann trial around 1938 for the kidnapping and murder of the "Lindbergh baby" and ultimately the 1965 reversal of the conviction of Billy Sol Estes, raise many of those issues, but the technology is quite different today.)
Hang in there, Bill. It will be all okay. Have faith in our system of laws. They are not as absurd as tv likes to make them sound.
November 15, 2009 2:19 PM | Reply | Permalink