Holder: U.S. to seek death for 9/11 suspects. Attorney General Eric Holder announces that five 9/11 suspects, including Khalid Sheikh Mohammed, will be tried in a civilian federal court in New York, and the death penalty will be sought against them.
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Why was N.Y.C. chosen for 9/11 trials?
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9/11 mastermind to stand trial in N.Y. According to officials, alleged 9/11 mastermind Khalid Sheikh Mohammed and four other Guantanamo Bay detainees will stand trial in a civilian court.
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New Yorkers voice concerns about 9/11 trial
The move to put the self-proclaimed Sept. 11 mastermind on trial just blocks from ground zero raises a host of legal, political and security questions, chief among them: Can a fair-minded jury be found in a city still nursing deep wounds from the attack on the World Trade Center
Some also worry that the trial of Khalid Sheikh Mohammed will make New York an even bigger terrorist target, and that he will use the proceedings to incite more violence against Americans.
The loudest protests Friday came from relatives of the victims, many of whom oppose any civilian trial for terror suspects — especially at the federal courthouse 1,000 yards from the spot where nearly 3,000 people died.
"If we have to bring them to the United States, New York City is not the place to have it, let alone in a courthouse that is in the shadows of the twin towers," said Lee Ielpi, whose firefighter son died in the 9/11 attacks. The city's wounds, he said, are simply still too raw.
"Ripping that scab open will create a tremendous hardship," he said.
Some city leaders seemed to relish the chance to hold the evildoers accountable at the scene of the crime.
"It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered," Mayor Michael Bloomberg said.
New York Police Commissioner Raymond W. Kelly also said that holding the trial in the city most devastated by the 2001 attack is appropriate, and he pronounced the Police Department prepared to meet any security challenge.
Previous Terrorism cases tried
It may be years before Mohammed is brought to trial, and there is no guarantee the proceedings will actually be held in the city.
A defense attorney is almost certain to ask the judge to move the proceedings to someplace less likely to produce a jury tainted by extreme hatred of the defendant, said James Benjamin, a New York City lawyer who has studied terrorism prosecutions.
Still, he added, the city has handled big terrorism cases before.
Trials arising from the 1993 World Trade Center bombing and another plot to attack city landmarks were held in federal court in New York.
Manhattan has jails ready to receive Mohammed. Terrorism defendants have been taken to the Metropolitan Correctional Center — a 10-story building next to the courthouse — and placed in solitary confinement in 10 South, a cellblock for high-risk prisoners.
For the 2001 trial in the bombings of two U.S. embassies in Africa, spectators had to pass through two sets of metal detectors, the courtroom and surrounding hallways were monitored around the clock, and videotape recorded any movements.
The defendants were strip-searched before being led through a passageway connecting the jail to the courthouse. Their feet were shackled throughout the proceedings, the chains shielded from the jury by a curtain attached to the defense table.
"The courts have handled many sensational cases fairly and effectively over the years," Benjamin said.
Civil-rights groups, including the American Civil Liberties Union and Human Rights Watch, said Muhammad is likely to be treated more fairly in New York, despite the hatred for him here, than he would before a military tribunal.
It will be a Travesty!
In announcing that Mohammed and four other Guantanamo Bay detainees will be brought to trial in New York, Attorney General Eric Holder expressed confidence that a "searching, complete" selection process would produce a fair-minded jury.
"We can come up with a process that ensures the defendants can get a fair trial in New York," he said.
Still, others with close personal ties to the case predicted chaos.
"It will be a travesty!" said Debra Burlingame, sister of Charles Burlingame, one of the pilots of the airliners hijacked on Sept. 11.
She said Mohammed's court appearances will be a "three-ring circus," with the defendant using every opportunity to spout anti-American views as he did in front of 9/11 family members who traveled to Guantanamo to face him in court.
"He's going to be exulting in the suffering of the families," she said. "He will ridicule the judge. He will ridicule his lawyers. He will rally his jihadi brothers all over the world to kill more Americans."
She said she was sickened by "the prospect of these barbarians being turned into victims by their attorneys."
New York Rep. Peter King, a Republican who favors trials before a military tribunal, said that providing security for the Mohammed case would further stretch the Police Department's resources. "They already have 1,000 cops working on counterterrorism," he said.
King, who previously complained to the attorney general that transferring Guantanamo detainees to New York for a trial "will make New York City that much more of a target," said he hadn't changed his mind about the risk.
As for Mohammed, the congressman warned: "I think this is the moment he's been waiting for."
Imprison Here, Release Here
If Guantanamo Bay is closed, scores of trained jihadists, committed to killing Americans, will be released to dwell among us: It is that simple.
Pres. Barack Obama and Attorney General Eric Holder contend that America’s civilian federal prisons are secure. Our “supermaxes,” they insist, are up to the task of confining the most lethal terrorists. Even if that were true (and history shows it is not), the argument is the most hollow of strawmen. These terrorists are not going to escape — they are going to walk right out the prison gates. They are going to be freed by a perverse new legal system, an ad hoc creation of progressive federal judges, assisted mightily by an Obama Justice Department rife with lawyers whose former firms and institutions spent the last eight years representing America’s enemies.
The civilian criminal-justice system is neither designed for nor capable of handling wartime detention cases. The basic presumptions of the civilian system — innocence, privacy, the preference that the prosecution lose any case in which there is the slightest doubt about guilt — have no bearing on the detention of enemy operatives in wartime. Yet, international terrorists present challenges that traditional enemy combatants do not: They do not wear uniforms, they do not carry their weapons openly, they conduct their operations in secret, and they blend into the general population, intentionally creating ambiguity about whether they are combatants or civilians.
This ambiguity is a military issue, not a legal one. In our system, the conduct of war is a political exercise in which the judiciary has no proper role. Under separation-of-powers principles, a judge has no more business telling a field commander who the enemy is than a general has telling a judge how to rule on the validity of a contract. Unfortunately, our system has become over-lawyered, and our leaders lack the political will to tell judges to butt out — something Congress and the president have the power to do.
Recognizing that reality, a few of us have argued for years that Congress should create a national-security court. Such a tribunal would proceed under the laws of war, meaning that an individual could be detained if, in the rational judgment of the military, he was deemed an enemy operative. The procedures used would essentially mirror military justice, not the civilian system, with a significant caveat: To ensure the integrity of the rulings, and to entice cooperation from allies resistant to traditional military tribunals (which are unilateral executive-branch productions), independent federal judges would preside over detention cases. To guard against the propensity of judges to inflate the due-process rights of prisoners and defendants, Congress would enact four precautions: (a) the judges would have no authority to invent new procedural rights (i.e., detainees would have only whatever rights Congress gave them); (b) the government would have a right of immediate appeal if a judge tried to flout the rules; (c) the government would enjoy a strong presumption in favor of wartime detention (i.e., a detainee’s status as an enemy combatant could not be invalidated absent convincing evidence that the military had been irrational in so designating him); and (d) the government would have the right to appeal any decision voiding detention.
Many arguments supported the creation of a national-security court, but the best one was the inevitable consequence of a failure to act. Beginning in 2004, the Supreme Court’s liberal bloc signaled its determination to invite the federal courts into national-defense matters. If we lacked the will to tell the courts they had overstepped their constitutional limits, and lacked the foresight to create a tribunal that would circumscribe this meddling, then the judges would simply create their own system. Because judges are products of the American legal culture (as a class, they lean left, often radically), and because they have no political responsibility for national security (they don’t answer to the voters), a judicially crafted system was guaranteed to be terrorist-friendly.
Even these dire predictions failed to factor in the Obama administration’s radicalism. In the current Justice Department, several top officials, including the attorney general himself, are recused from various national-security cases under conflict-of-interest guidelines. The reason? They, or their former firms, represented enemy combatants in lawsuits against the American people. Indeed, such is the mindset of the Obama DOJ that, to help formulate detention policy, Holder recruited Jennifer Daskal — a Human Rights Watch official with no prosecutorial experience — who had been a tireless advocate for terrorists held by the United States.
#pageCongress failed to create a national-security court, and in 2007 both houses were taken over by Democrats philosophically aligned with the lawyers who would later fill the Obama Justice Department. The results are clear: We are now operating under a shadow detention-review system created by judges. In it, enemy combatants are not merely presumed innocent; the terrorists get advantages that American citizens do not get in the regular justice system.
To see that this is so, one need look no further than the case of Kuwaiti detainee Khaled al Mutairi, methodically dissected by the Foundation for the Defense of Democracies’ Tom Joscelyn in an important post at the Weekly Standard’s blog.
The intelligence and evidence supporting the military’s designation of Mutairi as an enemy combatant were not merely solid, they were overwhelming. The Kuwaiti intelligence service identified him as a “hardcore extremist” affiliated with al-Qaeda before he left for Afghanistan shortly after the September 11 attacks; to get to Afghanistan, he used a known al-Qaeda smuggling route; he contributed money to an al-Qaeda front designated as a terrorist entity by both the United States and the U.N.; after the U.S. invasion, he fled towards Tora Bora at the same time and using the same route as al-Qaeda and Taliban fighters; when al-Qaeda safehouses were raided after his apprehension, his name was found on a roster of “captured Mujahideen” (a mujahid is one who fights in a jihad); and his passport was deposited in a safe-deposit box consistent with the al-Qaeda practice of having operatives turn in their passports (which gives the network more control over them, makes identification difficult if they are captured, and provides al-Qaeda opportunities to forge fraudulent identification documents). In the face of these damning facts, the military’s determination that Mutairi is an enemy combatant was invalidated. A federal district judge in Washington, Colleen Kollar-Kotelly, absurdly held that the evidence was insufficient.
#ad#We should by now be familiar with Judge Kollar-Kotelly. She is the Clinton appointee who became chief judge of the Foreign Intelligence Surveillance Court (the FISA court) in 2002. She is one of the judges who tried to rebuild the infamous “wall” between criminal investigators and intelligence agents — the disastrous impediment that Congress razed in the 2001 PATRIOT Act because it had contributed so significantly to the failure to detect the 9/11 plot. Though that lawless rebuilding effort was overruled by the FISA Court of Review in 2002, Kollar-Kotelly was reportedly among the sharpest critics of the Bush administration’s warrantless-surveillance program targeting international terrorist communications. And in 2005, in the absence of any authority in the habeas corpus statute, she ruled that enemy combatants were entitled to counsel, at taxpayers’ expense, to challenge their detention. In sum, she has a record of elevating concerns about due process for America’s enemies over the security of Americans.
Even by Kollar-Kotelly’s standards, however, the Mutairi ruling is breathtaking. She treated wartime detention of the enemy as if it were a bells-’n’-whistles criminal trial in which the government has the burden of proving a crime beyond a reasonable doubt. She offered no deference to — much less a presumption in favor of — the conclusion of our professional war-fighters about who the enemy is. She gave every bounce of the ball to Mutairi, reasoning that he, not our military, was entitled to the benefit of any doubt.
But it’s even worse than that. If Mutairi’s detention proceeding had been a regular trial rather than a habeas corpus hearing, the terrorist would have been convicted of being part of the al-Qaeda conspiracy. That is because trials in the regular criminal-justice system take place under rules fashioned by Congress — the judges don’t get to make it up as they go along. For one thing, they are jury trials. Under our law, the jury determines the facts of a case and the credibility of witnesses. Judges may not interfere. Thus jurors, ordinary Americans drawn from the community, are a key safeguard against the defendant-friendly proclivities of jurists such as Kollar-Kotelly.
Criminal trials also proceed in accordance with a pair of centuries-old legal principles. First, pieces of evidence are viewed not in isolation but in conjunction; second, jurors do not check their common sense at the door when they enter the courtroom. This is why the vast majority of defendants who go to trial get convicted. Even a not-so-clever defense lawyer can always come up with a reason to degrade this or that aspect of the prosecution’s case: Maybe the teller didn’t get a good look at the bank robber; the defendant’s fingerprint could have been left in the getaway car weeks before the robbery; the robbery money might be in his house because he unknowingly borrowed it from the real robber; and the accomplice may have falsely fingered him in hopes of saving his own skin. But if the prosecution shows an identification by the teller, a fingerprint in the getaway car, possession of the robbery proceeds, and a co-conspirator saying the defendant was in on it, that’s not a shaky case. Taken together, those facts spell slam dunk to a rational, objective fact-finder.
But Gitmo terrorists don’t have to deal with jurors vetted to ensure their objectivity. They get highly opinionated judges. Those judges first make up the rules, procedures, and presumptions, and then purport to apply this “law” to the facts — in many cases, just as a defense lawyer would do. As Joscelyn demonstrates, Kollar-Kotelly simply ignored some of the facts (like the Kuwaiti intelligence that Mutairi was an al-Qaeda operative) and speciously minimized or explained away others, studiously averting her gaze from the mosaic composed by the proof.
Naturally, the Obama Justice Department went along for the ride. No appeal was pursued, nor would one have expected otherwise. The way Kollar-Kotelly warped the case is precisely the kind of “justice” top Obama lawyers were pushing for over the last eight years. Now they’re in charge, and they readily cited Kollar-Kotelly’s ruling as justification for transferring Mutairi back to Kuwait, where he’ll be free to rejoin the jihad and take up arms against the United States — like so many other former detainees who’ve been released in the mad dash to empty Gitmo.
Here’s the thing: Because we still have Gitmo, at least Mutairi was outside the United States. When the judge voided his combatant status and the Justice Department declined to challenge the ruling, Kollar-Kotelly was in no position to force Mutairi’s release inside our country. He either had to go home to Kuwait or bide his time, like the Uighur detainees, until a country willing to take him was found.
Rest assured that this will not happen if the detainees are transferred to U.S. prisons, so that Gitmo can be shuttered. Once they are here, we will have the perfect storm: Federal judges, inherently hostile to detention without trial, running amok with no guidance from Congress, no political accountability, and no jury to check their excesses; combatant-designations judicially voided for scores of trained jihadists no trustworthy country is willing to take in; and a combatant-friendly Justice Department unwilling to challenge the judicial usurpation of the military’s war-fighting powers. Inexorably, the judges will order that the detainees be released in the United States. One judge already tried to do that with the Uighurs, even though they were outside the United States and had no legal right to enter.
For the judges, the hard part was wresting from the executive branch the power to decide who is an enemy combatant. With that accomplished, ordering their release will be easy. And once the Obama administration brings the combatants into the United States, it will be done — bank on it.
Trial of the Century, A Little Late
Khalid Sheikh Mohammed is going to be put on trial, in front of a jury of New Yorkers, in a courthouse a few blocks away from where the Twin Towers once stood. What could be more right? The firemen and policemen and people who worked in those buildings, and the passengers on the planes who died with them, don’t get justice when something happens in a dark room in a secret prison. They get it when their murderer has to answer for his crime in open court, with as many of their relatives in the audience as can fit. KSM will be brought here with four co-defendants, for what is already being referred to as the “trial of the century.” It comes later in the century than it should: KSM was captured in March 2003. Why have we had to wait so long?
Not everyone seems to be happy that a man believed to be a mass murderer is going on trial, strange to say. Senator Joe Lieberman, on cue, said that the proceedings would give KSM a chance to “mock” his victims. Mock? KSM will be the one on trial; we, free people with a new tower being built at Ground Zero, will be the ones judging. (The tower’s construction delays may, on reflection, be the one mockable aspect of this.) One of the shabbier arguments one hears is that we shouldn't put KSM on trial a civilian court because he will walk right out of there—some liberal judge will throw out the case, just because he was tortured. Oddly, this is presented as a vindication of places like Guantánamo, rather than as one of their flaws. But it is all less about logic than about scaring people. There was an indictment against KSM for terrorist activities even before September 11, 2001—an indictment, one assumes, that had evidence to back it up. There is no good reason he should not have been put on trial long ago. If his trial reveals details of his detainment that are embarrassing, then that’s just one more reason to go ahead with it—we deserve as much as anyone to know what our government has done.
This case alone won’t close Guantánamo. The Washington Post anticipates that, even with planned trials and detainees “cleared for repatriation or resettlement,” there will still be seventy-five prisoners at Guantánamo who
are deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.
By the way, can we stop saying that these people “cannot be prosecuted”? Because it’s not true. “Probably can’t be prosecuted successfully” might, in some cases, be one way to put it, but there’s nothing stopping the government from taking its chances and taking them to court. They just don’t want to. And what is an “evidentiary issue”? Is it that someone has been tortured? If so, we should, again, hear about it—prisoners aren’t broken toys you stuff in a box and hope your parents don’t see. Or is the evidentiary issue that there is no evidence? That seems to have been the case in a number of habeas corpus proceedings, including one involving a prisoner locked up in Guantánamo since he was a child, and is a rather dark sort of problem. Are we saying that someone against whom there is no evidence can and should be locked up indefinitely?
Andrew McCarthy, at the National Review Online, has a blog post in which he essentially argues that we don’t have to try KSM precisely because there is so much evidence against him, which is not any easier to make sense of than his talk of the Adminstration’s “hidden agenda.” That’s not as bad, though, as the piece McCarthy ran a few weeks ago, which opened this way:
If Guantanamo Bay is closed, scores of trained jihadists, committed to killing Americans, will be released to dwell among us: It is that simple.
It’s that simply wrong. Almost every sentence of McCarthy’s piece shows a lack of understanding of our Constitutional system, and, worse, a lack of pride in our system. One hears that the National Review is conservative—where is the appreciation for the genius of what our Founding Fathers wrote, and what they anticipated? McCarthy wants a brand new national security court, so that “an individual could be detained if, in the rational judgment of the military, he was deemed an enemy operative.” Any individual? He doesn’t specify non-citizens. How about annoying reporters? While he doesn’t like judges—among other problems, they “are products of the American legal culture”—he would be willing to let them into these courts on some conditions. For one thing,
judges would have no authority to invent new procedural rights (i.e., detainees would have only whatever rights Congress gave them)
Rights Congress gave them? What happened to the rights recognized in the same document that created Congress? The rights are ours—inalienable, self-evident.
But McCarthy’s disdain for judges does, in the end, lead us to the same place, namely to a courtroom in lower Manhattan. In his rage against habeas hearings—where judges, as he sees it, “get to make it up as they go along,” he forgets himself, and actually makes a sound argument for bringing prisoners from Guantánamo and into courts:
Under our law, the jury determines the facts of a case and the credibility of witnesses. Judges may not interfere. Thus jurors, ordinary Americans drawn from the community, are a key safeguard against the defendant-friendly proclivities of jurists such as Kollar-Kotelly.
Criminal trials also proceed in accordance with a pair of centuries-old legal principles. First, pieces of evidence are viewed not in isolation but in conjunction; second, jurors do not check their common sense at the door when they enter the courtroom. This is why the vast majority of defendants who go to trial get convicted.
Ordinary Americans are and always will be our key safeguard. For one thing, we know our rights, and our responsibilities, one of which is sitting on a jury when we are asked, and holding people like KSM and his co-defendants accountable. And we can.
Then there’s the concern that terror suspects, like plague carriers, are just too dangerous to have on our soil, even if the soil they’re on is within the confines of a prison. The Times notes that some local politicians, in Virginia (home to the Pentagon, also attacked that day) and elsewhere, have raised this alarm. But:
New York City has been different. In March, for example, when the administration prepared to bring Ahmed Kahlfan Ghailani, a suspect in the 1998 bombings of United States embassies in Africa which killed 224 people, to face trial there, Senator Charles Schumer, Democrat of New York, reacted with equanimity, saying that the city was well-accustomed to handling high-profile terror suspects.
“Bottom line is we have had terrorists housed in New York before,” Mr. Schumer said.
You bet. Not to put Virginia down, but we’ll take care of this one.
The oddest complaint, though, is that, by going to trial, the Obama Administration is somehow saying, as Jonah Goldberg put it, that “Khalid Sheikh Mohammed was right” because, upon his arrest, he predicted that he’d end up in court. Well, yes, but all that proves is that he knew which country he was attacking, and the rudiments of its legal system. If KSM said that the sky was blue, would we try to paint it orange? Perhaps, by pretending that secret prisons were compatible with our values, that’s what the Bush Administration did.
In other news: proof that local prejudices can, of course, affect how we see legal proceedings. The victim of an attempted armed robbery for which three University of Tennessee football players were arrested had this to say:
“I think they should still be able to play football, regardless,” he said. “Tennessee is my place. It’s my football team.”
“Even after they put a gun in your face, you say let them play football?” 6 News asked.
“Yeah, it’s Tennessee. That’s the way it is sometimes,” Zickefoose said.
Now, there’s a man willing to paint the sky orange.
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Sources: MSNBC, New Yorker, National Review, Google Maps
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