Team Obama makes the Keystone Cops look like models of competence and organization. Way to go, Barry!

First sentence should read "nothing more than."

So far, I haven’t heard a single credible argument in support of Eric Holder’s decision to hold the KSM trial in NYC. In fact, any decision by the Obama administration concerning any matter is routinely defended (by those assigned to defend) on the basis that Obama won the election last year and is therefore entitled to do whatever he wants. These defenders are from the same school that continues to promote the same rigorous standards (with regard to the art of ‘critical thinking’) that pronounced every Bush-Cheney initiative as evil and dangerous to America.

One would think that, should something untoward happen in Manhattan (or anywhere) as a direct result of this particular decision, the shallowness and blatant bias of the American Left’s propaganda mills would be exposed. But don’t bet on it.

I hear, rose colored glasses and kaleidoscopes are once again in full production by media, academe and Hollywood, designed to counter any unpleasantness that might arise out of this administration’s efforts to foist a ‘through the looking glass’ illusion on our hapless population.

It must be remembered that illusions in and of themselves are most often benign. It is only when they are used to conceal some sinister plot intended to disfigure or cause pain that they rise to the level of ‘evil’.

Enough dots have already been sown to hint at a somewhat disturbing overall picture. That is not to say that additional dots might not serve to mitigate that which to many is already apparent. It is safe to say that the standard spin by the WH spin factory will henceforth come under much closer scrutiny. Few people bought the WH spin of the Fort Hood massacre, for example. Neither will most take kindly to renewed AQ activity in New York City.

What about my argument in the previous thread, to show that we're not afraid?

Let's say that the terrorists were from, I don't know, Bora Bora. Some country without any national defense or ability to attack or exact revenge. Would any of this outcry be taking place? I don't think so.

Ah, but you say "Lou! It's an irrelevant thought experiment, because these people DO have some teeth to them, else the World Trade towers would still be standing." But if that's the case, doesn't it prove me point, that the fact that they have teeth is the real reason for the outcry?

I support the decision by Holder. Let's get this overwith and move on, and stop showing the world what cowards we are. Yes, cowards. Anyone who believes that we should have strip-down searches and metal detectors to board an airplane is a COWARD. Always felt that, always will feel it. It is a good day to die, and the day is not over yet.

These five have confessed freely (or at least some think they have confessed freely) to an act of terrorism. Of course terrorism has hundreds of definitions but they all deal with some kind of violence or threat of violence. Proving KSM and the four others threaten violence may be impossible; proving they committed violence may be equally difficult as far as physical evidence goes. The 1993 convictions of the Blind Sheik were actually for "inciting" violence not committing the act itself.

I think a military tribunal would have been better. It may not actually be as just (tribunals are normally held by the victor versus the defeated so their "justice" might be difficult to see as even-handed in historical perspective). Never the less, it doesn't have the "innocent until proven guilty" part just the "here are the people who conspired to kill the innocent" part....the US has been part of that kind of process before and not had a problem with it--military tribunals for Japanese "war criminals" and Nuremberg for German "war criminals" both civilian and military "war criminals" and even currently Mr. Malosevich over in Europe. Tribunals can also be run for "crimes against peace" and "crimes against humanity" which regular criminal trials can not. I would actually think that KSM and cohorts as confessed actually fit either of these last two crimes (more along the lines of "crimes against humanity" because it considers non-combatant civilians as targets and can be done by other than state agents).

So I'm with Lou: every day is a good day to die--do you think they will have tickets for the public? I would love to be in the front row (or where ever they'd seat the public). Of course, I am also not in NY currently and not someone this will end up being a poke in the eye every morning as the news reports the latest "shenanigans" from the court. However, I would love to go to NY and just act as a "witness" to history--i.e. tell our "friends of the Caliphate" that we as Americans stand ready to meet them before their/our God and let Him sort it out (this is meant as a humorous statement; please do not think I am being a fanatic just saying that I am willing to be fanatical to support those who in NY who will have to deal with the daily torture of this trial for the next few years. Fact is, most of us in the US will now have to deal with this trial every day and it's burden may be torture to all of us.)

"They're selling postcards of the hanging.
They're painting the passports brown.
The beauty parlor is filled with sailors
The circus is in town.
Here comes the blind commissioner...
They've got him in a trance.
One hand is tied to the tight-rope walker,
The other is in his pants.
And the riot squad they're restless
They need somewhere to go,
As Lady and I look out tonight on Desolation Row."

from WSJ:

By EVAN PEREZ and TIMOTHY W. MARTIN

The U.S. is looking at a mostly unused prison in Illinois as a place to move some terrorism suspects now detained at Guantanamo Bay, administration officials said.

Getty Images
The Thomson Correctional Center in Thomson, Ill., is shown above on Sunday and in an undated photo below.
View Full Image

Associated Press
Related

Letter by Illinois Gov. Pat Quinn to Defense Secretary Robert Gates and Attorney General Eric Holder
The idea of using the Thomson Correctional Center, 150 miles west of Chicago, has the support of some local elected officials, including Sen. Dick Durbin, the No. 2 Democrat in the Senate. But people in Thomson, a town of roughly 500 people bordering the Mississippi River, said that while they welcome the economic lift, they worry about the possible effect from people visiting the detainees.

Journal CommunityDISCUSS
“The location is one which could accommodate the projected inmate population. And the Illinois area can certainly benefit from the jobs created. And getting that place off the Illinois register of real estate burdens will help Illinois considerably. ”
— Lawrence Dawson
"If you have these people, the only thing holding them is the walls and the bars," said Billy O'Barr, 74 years old, who moved to Thomson more than 20 years ago. While the promise of 3,000 jobs and an injection of $1 billion into the local economy sounds good, Mr. O'Barr said, "Do you really want those folks put in there as your neighbors?"

The Obama administration faces difficulties in its bid to close the Guantanamo facility in Cuba. If the administration plans to move to the U.S. prisoners who aren't set for legal proceedings, it must persuade Congress to overturn legal restrictions barring such transfers other than for trial. Originally, the White House set a closure deadline of January, but it now says that is likely to slip.

Friday, Attorney General Eric Holder said five accused plotters in the 9/11 attacks, including self-described mastermind Khalid Sheikh Mohammed, will be brought to New York to face trial in a civilian court, while five more will face military tribunals.

Officials said the U.S. is leaning toward holding the military tribunals on American soil, but the site hasn't been determined. Currently, all the tribunals are taking place at Guantanamo, in a specially built courtroom.

Dozens of Guantanamo prisoners are cleared for release, but lack countries willing to accept them. Up to two dozen prisoners have been judged too dangerous to release, but the government believes there isn't enough evidence to try them in either a civilian or military court.

The U.S. is looking for a place to house detainees in both of those categories. It isn't clear which might go to Thomson.

Mr. Durbin said Thomson would house fewer than 100 of Guantanamo's 215 detainees. The Federal Bureau of Prisons would acquire the facility from the state of Illinois and lease a portion to the Defense Department to house the detainees, he said.

Associated Press
Jerry "Duke" Hebeler, village president of Thomson, Ill., talks Saturday about the Obama administration's possible plans to house detainees from Guantanamo Bay, Cuba, at the correctional center in Thomson.
Journal Community

Vote: Should the trial of Sept. 11 terror attack suspects be held in New York City?
"This is an opportunity to dramatically reduce unemployment, create thousands of good-paying jobs and breathe new economic life into this part of downstate Illinois," Mr. Durbin said. "We should not let the unsupported and misplaced fears of a few stand in the way of this historic economic boost to our region."

The state-of-the-art facility, built nearly a decade ago, remains mostly empty because the state doesn't have the money to run it at full capacity.

Illinois Gov. Pat Quinn said he had a brief discussion with President Barack Obama this month about using the facility. He also wrote a letter last Thursday to Defense Secretary Robert Gates and Mr. Holder, saying the federal government would be hard-pressed to find a more secure prison.

Mr. Quinn, a Democrat, said Illinois spent more than $120 million to build the facility, which has 1,600 cells on 146 acres. He said the local community is open to "any and all alternatives" for making use of it.

Tom Patel, 58, bought a motel within walking distance of the prison three years ago, expecting visitors to fill up his 40 rooms. Business is slow, he said: "From November to March, we don't make anything. I'm broke."

The local economy hasn't recovered since the U.S. Army shut down a defense-ammunition center in 2000. Gary Arnold, owner of Arnolds Bikes & Embroidery, said he supported housing more inmates because "there are a lot of benefits that we don't see every day or don't talk about."

—Jonathan Weisman contributed to this article.

It may be a good day for you to die, Lou, but I've got a few things to do tomorrow.
This is just stupid and may turn out to be very bad politics for BO crowd. I can only hope.
But most importantly, this sets a very bad precedent. We have essentially declared that those captured on the battlefield get to have a really fine legal defense. I'm with Pat Buchanan on this--I like the way german spies, japanese war criminals, Major Andre were handled. Try them and hang them. It is a good day for them to die.

Once again, we see, with the rest of the world, the shear brillance that is the obama administration. Just look at the vast number of countries appauding this most noble decision to put on trial known terrorists [and murders] in NYC. The American sense of fairplay, the American sense of going the extra mile, and the American sense of how stupid this administration is. 4 years and gone. Go Rudy.

Excellent piece by George Freedom of Stratfor.comBy George Friedman

U.S. Attorney General Eric Holder has decided that Khalid Sheikh Mohammed will be tried in federal court in New York. Holder’s decision was driven by the need for the U.S. government to decide how to dispose of prisoners at Guantanamo Bay, a U.S. Naval base outside the boundaries of the United States selected as the camp in which to hold suspected al Qaeda members.

We very carefully use the word “camp” rather than prison or prisoner of war camp. This is because of an ongoing and profound ambiguity not only in U.S. government perceptions of how to define those held there, but also due to uncertainties in international law, particularly with regard to the Geneva Conventions of 1949. Were the U.S. facility at Guantanamo a prison, then its residents would be criminals. If it were a POW camp, then they would be enemy soldiers being held under the rules of war. It has never really been decided which these men are, and therefore their legal standing has remained unclear.
War vs. Criminal Justice

The ambiguity began shortly after 9/11, when then-U.S. President George W. Bush defined two missions: waging a war on terror, and bringing Osama bin Laden and his followers to justice. Both made for good rhetoric. But they also were fundamentally contradictory. A war is not a judicial inquiry, and a criminal investigation is not part of war.

An analogy might be drawn from Pearl Harbor. Imagine that in addition to stating that the United States was at war with Japan, Franklin Roosevelt also called for bringing the individual Japanese pilots who struck Hawaii to justice under American law. This would make no sense. As an act of war, the Japanese action fell under the rules of war as provided for in international law, the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Japanese pilots could not be held individually responsible for the lawful order they received. In the same sense, trying to bring soldiers to trial in a civilian court in the United States would make no sense. Creating a mission in which individual Japanese airmen would be hunted down and tried under the rules of evidence not only would make no sense, it would be impossible. Building a case against them individually also would be impossible. Judges would rule on evidence, on whether an unprejudiced jury could be found, and so on. None of this happened, of course — World War II was a war, not a judicial inquiry.

It is important to consider how wars are conducted. Enemy soldiers are not shot or captured because of what they have done; they are shot and captured because of who they are — members of an enemy military force. War, once launched, is pre-emptive. Soldiers are killed or captured in the course of fighting enemy forces, or even before they have carried out hostile acts. Soldiers are not held responsible for their actions, but neither are they immune to attack just because they have not done anything. Guilt and innocence do not enter into the equation. Certainly, if war crimes are in question, charges may be brought; the UCMJ determines how they will be tried by U.S. forces. Soldiers are tried by courts-martial, not by civilian courts, because of their status as soldiers. Soldiers are tried by a jury of their peers, and their peers are held to be other soldiers.

International law is actually not particularly ambiguous about the status of the members of al Qaeda. The Geneva Conventions do not apply to them because they have not adhered to a fundamental requirement of the Geneva Conventions, namely, identifying themselves as soldiers of an army. Doing so does not mean they must wear a uniform. The postwar Geneva Conventions make room for partisans, something older versions of the conventions did not. A partisan is not a uniformed fighter, but he must wear some form of insignia identifying himself as a soldier to enjoy the conventions’ protections. As Article 4.1.6 puts it, prisoners of war include “Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” The Geneva Conventions of 1949 does not mention, nor provide protection to, civilians attacking foreign countries without openly carrying arms.

The reasoning behind this is important. During the Franco-Prussian war, French franc-tireurs fired on Prussian soldiers. Ununiformed and without insignia, they melded into the crowd. It was impossible for the Prussians to distinguish between civilians and soldiers, so they fired on both, and civilian casualties resulted. The framers of the Geneva Conventions held the franc-tireurs, not the Prussian soldiers, responsible for the casualties. Their failure to be in uniform forced the Prussians to defend themselves at the cost of civilian lives. The franc-tireurs were seen as using civilians as camouflage. This was regarded as outside the rules of war, and those who carried out such acts were seen as not protected by the conventions. They were not soldiers, and were not to be treated as such.
An Ambiguous Status

Extending protections to partisans following World War II was seen as a major concession. It was done with concerns that it not be extended so far that combatants of irregular forces could legally operate using their ability to blend in with surrounding civilians, and hence a requirement of wearing armbands. The status of purely covert operatives remained unchanged: They were not protected under the Geneva Conventions. Their status remained ambiguous.

During World War II, it was U.S. Army practice to hold perfunctory trials followed by executions. During the Battle of the Bulge, German commandos captured wearing U.S. uniforms — in violation of the Geneva Conventions — were summarily tried in field courts-martial and executed. The idea that such individuals were to be handed over to civilian courts was never considered. The actions of al Qaeda simply were not anticipated in the Geneva Conventions. And to the extent they were expected, they violated the conventions.

Holder’s decision to transfer Khalid Sheikh Mohammed to federal court makes it clear that Mohammed was not a soldier acting in time of war, but a criminal. While during times of war spies are tried as criminals, their status is precarious, particularly if they are members of an enemy army. Enemy soldiers out of uniform carrying out reconnaissance or espionage are subject to military, not civilian, justice, and frequently are executed. A spy captured in the course of collecting information is a civilian, particularly in peacetime, and normally is tried as a criminal with rules of evidence.

Which was Mohammed? Under the Geneva Conventions, his actions in organizing the Sept. 11 attacks, which were carried out without uniforms or other badges of a combatant, denies him status and protection as a POW. Logically, he is therefore a criminal, but if he is, consider the consequences.

Criminal law is focused on punishments meted out after the fact. They rarely have been preventive measures. In either case, they follow strict rules of evidence, require certain treatments of prisoners and so on. For example, prisoners have to be read the Miranda warning. Soldiers are not policeman. They are not trained or expected to protect the legal rights of captives save as POWs under the UCMJ, nor protect the chain of custody of evidence nor countless other things that are required in a civilian court. In criminal law, it is assumed that law enforcement has captured the prisoner and is well-versed in these rules. In this case, the capture was made without any consideration of these matters, nor would one expect such consideration.

Consider further the role of U.S. covert operations in these captures. The United States conducts covert operations in which operatives work out of uniform and are generally not members of the military. Operating outside the United States, they are not protected by U.S. law although they do operate under the laws and regulations promulgated by the U.S. government. Much of their operations run counter to international and national law. At the same time, their operations are accepted as best practices by the international system. Some operate under cover of diplomatic immunity but carry out operations incompatible with their status as diplomats. Others operate without official cover. Should those under unofficial cover be captured, their treatment falls under local law, if such exists. The Geneva Conventions do not apply to them, nor was it intended to.

Spies, saboteurs and terrorists fall outside the realm of international law. This class of actors falls under the category of national law, leaving open the question of their liability if they conduct acts inimical to a third country. Who has jurisdiction? The United States is claiming that Mohammed is to be tried under the criminal code of the United States for actions planned in Afghanistan but carried out by others in the United States. It is a defensible position, but where does this leave American intelligence planners working at CIA headquarters for actions carried out by others in a third country? Are they subject to prosecution in the third country? Those captured in the third country clearly are, but the claim here is that Mohammed is subject to prosecution under U.S. laws for actions carried out by others in the United States. And that creates an interesting reciprocal liability.
A Failure to Evolve

The fact is that international law has not evolved to deal with persons like Mohammed. Or more precisely, most legal discussion under international law is moving counter to the Geneva Conventions’ intent, which was to treat the franc-tireurs as unworthy of legal protection because they were not soldiers and were violating the rules of war. International law wants to push Mohammed into a category where he doesn’t fit, providing protections that are not apparent under the Geneva Conventions. The United States has shoved him into U.S. criminal law, where he doesn’t fit either, unless the United States is prepared to accept reciprocal liability for CIA personnel based in the United States planning and supporting operations in third countries. The United States has never claimed, for example, that the KGB planners who operated agents in the United States on behalf of the Soviet Union were themselves subject to criminal prosecution.

A new variety of warfare has emerged in which treatment as a traditional POW doesn’t apply and criminal law doesn’t work. Criminal law creates liabilities the United States doesn’t want to incur, and it is not geared to deal with a terrorist like Mohammed. U.S. criminal law assumes that capture is in the hands of law enforcement officials. Rights are prescribed and demanded, including having lawyers present and so forth. Such protections are practically and theoretically absurd in this case: Mohammed is not a soldier and he is not a suspected criminal presumed innocent until proven guilty. Law enforcement is not a practical counter to al Qaeda in Afghanistan and Pakistan. A nation cannot move from the rules of counterterrorism to an American courtroom; they are incompatible modes of operation. Nor can a nation use the code of criminal procedures against a terrorist organization operating transnationally. Instead, they must be stopped before they commit their action, and issuing search warrants and allowing attorneys present at questioning is not an option.

Therefore — and now we move to the political reality — it is difficult to imagine how the evidence accumulated against Mohammed could enter a courtroom. Ignoring the methods of questioning, which is a separate issue, how can one prove his guilt beyond a reasonable doubt without compromising sources and methods, and why should one? Mohammed was on a battlefield but not operating as a soldier. Imagine doing criminal forensics on a battlefield to prove the criminal liability of German commandos wearing American uniforms.

In our mind, there is a very real possibility that Mohammed could be found not guilty in a courtroom. The cases of O.J. Simpson and of Jewish Defense League head Rabbi Meir Kahane’s killer, El Sayyid Nosair — both found not guilty despite overwhelming evidence — come to mind. Juries do strange things, particularly amid what will be the greatest media circus imaginable in the media capital of the world.

But it may not be the jury that is the problem. A federal judge will have to ask the question of whether prejudicial publicity of such magnitude has occurred that Mohammed can’t receive a fair trial. (This is probably true.) Questions will be raised about whether he has received proper legal counsel, which undoubtedly he hasn’t. Issues about the chain of custody of evidence will be raised; given that he was held by troops and agents, and not by law enforcement, the chances of compromised evidence is likely. The issue of torture will, of course, also be raised but that really isn’t the main problem. How do you try a man under U.S. legal procedures who was captured in a third country by non-law enforcement personnel, and who has been in military custody for seven years?

There is a nontrivial possibility that he will be acquitted or have his case thrown out of court, which would be a foreign policy disaster for the United States. Some might view it as a sign of American adherence to the rule of law and be impressed, others might be convinced that Mohammed was not guilty in more than a legal sense and was held unjustly, and others might think the United States has bungled another matter.

The real problem here is international law, which does not address acts of war committed by non-state actors out of uniform. Or more precisely, it does, but leaves them deliberately in a state of legal limbo, with captors left free to deal with them as they wish. If the international legal community does not like the latter, it is time they did the hard work of defining precisely how a nation deals with an act of war carried out under these circumstances.

The international legal community has been quite vocal in condemning American treatment of POWs after 9/11, but it hasn’t evolved international law, even theoretically, to cope with this. Sept. 11 is not a crime in the proper sense of the term, and prosecuting the guilty is not the goal. Instead, it was an act of war carried out outside the confines of the Geneva Conventions. The U.S. goal is destroying al Qaeda so that it can no longer function, not punishing those who have acted. Similarly the goal in 1941 was not punishing the Japanese pilots at Pearl Harbor but destroying the Japanese Empire, and any Japanese soldier was a target who could be killed without trial in the course of combat. If it wishes to solve this problem, international law will have to recognize that al Qaeda committed an act of war, and its destruction has legal sanction without judicial review. And if some sort of protection is to be provided al Qaeda operatives out of uniform, then the Geneva Conventions must be changed, and with it the status of spies and saboteurs of all countries.

Holder has opened up an extraordinarily complex can of worms with this decision. As U.S. attorney general, he has committed himself to proving Mohammed’s guilt beyond a reasonable doubt while guaranteeing that his constitutional rights (for a non-U.S. citizen captured and held outside the United States under extraordinary circumstances by individuals not trained as law enforcement personnel, no less) are protected. It is Holder’s duty to ensure Mohammed’s prosecution, conviction and fair treatment under the law. It is hard to see how he can.

Whatever the politics of this decision — and all such decisions have political dimensions — the real problem faced by both the Obama and Bush administrations has been the failure of international law to evolve to provide guidance on dealing with combatants such as al Qaeda. International law has clung to a model of law governing a very different type of warfare despite new realities. International law must therefore either reaffirm the doctrine that combatants who do not distinguish themselves from noncombatants are not due the protections of international law, or it must clearly define what those protections are. Otherwise, international law discredits itself.

- I think international law is valid for the concept that eventually we'll look to their aspects to seek cover.
- If I had my druthers - I would have just exterminated KSM and Compatriots directly upon capture- nothing else would have come from it & it would not been viewed as anything more than bad men met their destiny- no media no martyrs nothing.

- There cases in Gitmo that are not clear cut and i have reason to believe some of these detainees aren't guilty of anything but getting caught up in money exchnges . . .rewards to the PAK for bodies led to innocent folks being rounded up so yeah I wanna get that fixed like 8 years ago.

CNN
17 -1- Nov. 13-15, 2009
Interviews with 1,014 adult Americans, including 928 registered
voters, conducted by telephone by Opinion Research Corporation
on November 13-15, 2009. The margin of sampling error for
results based on the total sample is plus or minus 3 percentage
points and for registered voters is plus or minus 3 percentage
points.
FOR RELEASE: MONDAY, NOVEMBER 16 AT 4 PM
17 -2- Nov. 13-15, 2009
31. Now here are some questions about Khalid Sheik Mohammed who may be responsible for planning
the 9/11 attacks and who is now in custody at a U.S. military prison in another country: If you had
to choose, would you rather see Khalid Sheik Mohammed brought to trial in a criminal court run by
the civilian judicial system, or would you rather see him tried by a military court run by the U.S.
armed forces?
Nov. 13-15
2009
Brought to trial in a criminal court run by
the civilian judicial system 34%
Tried by a military court run by the U.S
armed forces 64%
No opinion 2%
32. And regardless of which court system you think he should be tried in, if you had to choose, would
you rather see Khalid Sheik Mohammed brought to the U.S. to stand trial or would you rather see
him tried in a U.S. facility in another country?
Nov. 13-15
2009
Brought to the U.S. to stand trial 60%
Tried in a U.S. facility in another country 37%
No opinion 3%
33. If Khalid Sheik Mohammed is tried in a civilian court in the U.S., do you think he would get a fair
trial, or don’t you think so?
Nov. 13-15
2009
Yes, fair trial 64%
No, don’t think so 34%
No opinion 2%
17 -3- Nov. 13-15, 2009
34. If Khalid Sheik Mohammed is found guilty of planning the 9/11 attacks, which of the following
statements best describes your view:
Nov. 13-15
2009
You generally support the death penalty and
believe he should be executed if he is
found guilty 59%
You generally oppose the death penalty, but
believe he should be executed in this case if
he is found guilty 19%
You generally oppose the death penalty and believe
he should not be executed if he is found guilty 19%
Other (vol.) 1%
No opinion 1%
FOR COMPARISON
CNN/USA TODAY/GALLUP TRENDS
Now thinking about Timothy McVeigh, the man convicted of murder in the Oklahoma City bombing case and sentenced to death, which
comes closest to your view -- I generally support the death penalty and believe McVeigh should be executed, I generally oppose the death
penalty, but believe McVeigh should be executed in this case, (or) I generally oppose the death penalty and do not believe McVeigh should
be executed?
June 8-10 May 18-20 April 20-22
2001 2001 2001
Support death penalty, believe McVeigh should be executed 59 57 59
Oppose death penalty, believe McVeigh should be executed 19 23 22
Oppose death penalty, believe McVeigh should not be executed 17 16 16
Other (vol.) 3 2 1
No opinion 2 2 2

Outstanding piece
chicago boyz via Mark Levin show and just had to get over here. . .
By Shannon Love

Men, we’ve got to give this man a fair trial before we hang him.” — attributed to Judge Roy Bean.

Finding an impartial jury for Khalid Sheikh Mohammed (KSM) is the least of our worries in President Obama’s decision to try him in a civil court. Our greatest concern is that it will be a shambles of a show trail that ignores all established legal precedent. The ramifications of that could be worse than terrorism itself.

What Obama the law professor fails to grasp is that none of the prerequisites exist for a fair civil trial in the case of terrorist captured overseas by intelligence agents.

For example, just for starters, what objective proof do we have that the individual who will show up in the courtroom is actually the Khalid Sheikh Mohammed who planned 9/11? What do we do if he simply asserts he is not the person the government claims he is?

We seldom concern ourselves with the true identity of civil criminals because all of us in America and the rest of the developed world live in a web of interlocking forms of identification. When a civil criminal is captured overseas, we rely on the civil authorities of the country of capture to ascertain identity. Even in the case of criminals who use false identity, it’s trivial to find witnesses to physically identify the defendant as the individual using a particular identity. How can we hope to have that level of certitude in the case of someone captured overseas in a society with no formal system of identification?

Then we have the entire problem of terrorists operating under the cover of false identities like spies. It’s not uncommon for high-level members of covert organizations to have doubles who leave false trails to confuse their pursuers. What if we caught one of those guys? What if the entire identity of Khalid Sheikh Mohammed is entirely fabricated and doesn’t actually attach to a specific individual? That would make useless all the witnesses and electronic information saying that an individual with that name did this or that.

That is just the start of the myriad testimonial and evidentiary problems with a civil trial.

KSM was water boarded. In a normal civil trial, that would make his confession entirely inadmissible. Even if the jury knows of the confession external to the trial, an honest jury member would have to disregard such information. If the confession is allowed against all precedent, the jury could honestly disregard it just as they would in any proven instance of police brutality.

The critical witnesses against KSH will all be people who serve covertly in either intelligence agencies or the special forces. Spies don’t play fair even with the people they protect. To deceive a nation’s enemies, they have to deceive a nation’s people. Can a jury actually trust witnesses who spend their lives serving in a shadowy world of deception? The Church commission report even claimed that US intelligence officers lied under oath before Congress under orders of the President in order to protect ongoing operations. Couldn’t they do so again? Couldn’t a jury reasonably conclude that intelligence officers would not tell the whole truth in a trial in order to protect agents and methods? Couldn’t a jury reasonably conclude that intelligence officers might frame an individual in order to pursue some other more significant target or to prevent another 9/11?

What about chain of evidence? Khalid Sheikh Mohammed wasn’t captured by civil law enforcement but by the military. These people where fighting a war, not gathering evidence for a civil trial. Did they carefully log every physical piece of evidence and log every time some touched it? How will the prosecution refute a claim that evidence was tampered with?

In a civil trial, the defendant has the right to examine any and all evidence used in the trial. That includes examining the tools used to find evidence such as computer forensic software. Are we going to let Khalid Sheikh Mohammed and his defense team examine the internals of the software and hardware we use to track enemy communications? Are we going to expose all the techniques of the NSA for the whole world to see?

A civil defendant has the right to face all accusers. Are we going to force intelligence officers and special forces members to reveal their identities in open court? If we don’t, how do we prove that the government witnesses are real people and that they are telling the truth about real events?

These and other factors could all combine to create a plausible defense that simply says that all the evidence presented was fabricated by the government. Such fabrication does occur in much less prominent civil cases, so a jury cannot disregard the possibility it could occur in such a high profile case. How could the government objectively refute such a claim when it employed none of the safeguards used by civil law enforcement?

I personally would have real doubts of convicting KSM if I sat on his jury. I believe he is guilty and I’m not one of those people who automatically assumes that everyone in the military or intelligence is unethical. Indeed, I think he is guilty expressly because I trust the people who serve. However, in a civil trail, the burden of proof rests on the state and part of that burden is the ability of the state to objectively demonstrate that all its assertions are true. If they can’t do that, then a juror is morally and legally obligated to find the defendant not guilty.

We wouldn’t expect a jury in an ordinary trial to convict just on the basis of a cop on the stand saying, “He did it. I have secret evidence and witnesses that prove it. Just trust me on that.” We would expect a jury to find the defendant not guilty even if they had information independent of the trial of the defendant’s guilt. Why should we assume a lower standard in this case?

KSM will no doubt be convicted but it won’t be in a fair trial by any standard definitions of the term. He will be convicted purely on the government’s say so. The trial will offer dozens or hundreds of grounds for appeal. KSM will be alive owing to appeals 20 years down the road regardless of what sentence the court hands down.

However, the real danger of this trial isn’t that KSM will go free. The real danger is that Obama’s obsession with treating terrorism as a civil crime will lead to the destruction of our entire civil criminal justice system. I will cover that grim possibility in my next post.

In my previous post, I listed some (but far from all) of the practical problems presented by trying in a civil criminal court an individual (1) who was captured overseas, (2) had evidence against him collected using covert means, with (3) no chain of evidence or custody, and (4) was harshly and physically interrogated with (5) all witnesses and methods being secret.

The greatest danger posed in the trial of Khalid Sheikh Mohammed (KSM) isn’t that he will go free. The greatest danger is that he will be convicted and that during his appeals the courts will ratify all of the extraordinary measures used to capture and convict him. The great danger is that the courts will ratify the rough, inaccurate and ambiguous norms of martial law as applying to all civil criminal trials.

After a couple of decades of these court decisions reverberating throughout the legal system, we could end up living under de facto martial law.

The Constitution recognizes only two types of trials, the civil and the military. The Fifth Amendment states:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Until the Obama administration overturned two centuries of precedence, America had two systems of justice, the civil and the military. The military system played a very small and focused role. It served rough justice in the chaos of war and in places like the open sea in which no nation’s law governed.

For over two hundred years, those captured by the military outside the civil boundaries or caught carrying out military action on US soil, were tried by military tribunals. Up until the 1950s the military used drum head trials to convict and execute those found fighting in violation of custom and international law. Pirates were often hung at sea within hours of their capture. In WWII, anyone fighting disguised as a civilian faced summary execution with the approval of just three officers.

For over two hundred years we were careful to keep a firewall between civil and martial law. We did so because civil and martial law are polar opposites. Civil law is focused on protecting the rights of the accused against the overwhelming power of the state. When there is doubt, the accused walks free. Martial law is focused on imposing a minimal order on bloody chaos. It was focused on allowing the military to complete its mission and win wars. When there is doubt, the accused is presumed guilty.

Now, Obama wants to bring martial law into a civil court room in Manhattan. In order to let a civil conviction of KSM stand, the higher courts will have to overturn almost all the current constitutional protections of the accused.

They will have to overturn the requirement for Miranda warnings. They will have to overturn the Fifth Amendment protection against self incrimination. They will have to overturn the right to face one’s accusers and to examine all evidence and evidence gathering methods.

Even if the courts throw out his conviction, the government will never allow him to go free, so we will toss out protection against double jeopardy if they try to convict with a military tribunal, and toss out the right of no imprisonment without trial if they don’t.

Our system of justice relies on precedent and equality of procedure. The same rules apply to every civil trail. We can’t say that it’s okay to deny the right against self-incrimination in one person’s trial while saying it’s okay in another. If the courts overturn the rights of one individual accused, it must overturn the rights of all of them.

Nothing good will come of this trial.

If it is conducted outside the bounds of normal civil law, it will be nothing but a corrupt show trial whose outcome was preordained by politicians. Instead of showing the world that America is a land of laws in which even our enemies receive fair treatment, it will show the world the opposite.

If it is conducted within the bounds of normal civil law, then it will force the courts to choose between letting a mass murdering terrorist walk free and setting dangerous legal precedents that will undermine the basic civil rights of all Americans.

Obama has unleashed something in America far, far more dangerous than any excesses Bush might have committed. He has taken all the horrible compromises we must make in war and driven them into the heart of the civil legal system. If the courts do not set Khalid Sheikh Mohammed free, the cancer of martial law will metastasize into the entire justice system.

We may eventually wish we had never caught the bastard at all.