Greenwald: "We're too scared to have real trials in our country"

[Winehole23]

The Right's textbook "surrender to terrorists" (http://www.salon.com/news/opinion/glenn_greenwald/2009/11/14/terrorism/index.html)

"We're too scared to have real trials in our country" is a level of cowardice unmatched in the world.


By Glenn Greenwald
Understanding and Combatting Terrorism, USMC Major S.M. Grass, 1989 (http://www.globalsecurity.org/military/library/report/1989/GSM.htm):


Terrorism is a psychological weapon and is directed to create a general climate of fear. As one definition cogently notes, "terror is a natural phenomenon, terrorism is the conscious exploitation of it." Terrorism utilizes violence to coerce governments and their people by inducing fear.
William Josiger, Fear Factor: The Impact of Terrorism on Public Opinion in the United States and Great Britain, 2006 (http://www.allacademic.com/meta/p_mla_apa_research_citation/0/9/9/9/2/p99922_index.html):


At its heart terrorism is about fear. While terrorist attacks destroy, maim and kill, the intended audience for these attacks is almost always the whole body politic and the terrorist's goal is to strike fear into their hearts.
GOP House Leader John Boehner, condemning Obama's decision to bring Khalid Sheikh Mohammed to New York for trial, yesterday (http://theplumline.whorunsgov.com/terrorism/boehner-obama-trying-911-mastermind-in-court-to-appease-unnamed-liberal-interest-groups/):


The Obama Administration’s irresponsible decision to prosecute the mastermind of the 9/11 attacks in New York City puts the interests of liberal special interest groups before the safety and security of the American people.
This is literally true: the Right's reaction to yesterday's announcement -- we're too afraid to allow trials and due process in our country -- is the textbook definition of "surrendering to terrorists." It's the same fear (http://www.salon.com/opinion/greenwald/2009/01/23/al_qaeda/) they've been spewing for years. As always, the Right's tough-guy leaders wallow in a combination of pitiful fear and cynical manipulation of the fear of their followers. Indeed, it's hard to find any group of people on the globe who exude this sort of weakness and fear more than the American Right.



Continue Reading (http://www.salon.com/news/opinion/glenn_greenwald/2009/11/14/terrorism/index.html#story_full_088ce4c705df876173d643cc0f3b 65c7)


People in capitals all over the world have hosted trials of high-level terrorist suspects using their normal justice system. They didn't allow fear to drive them to build island-prisons or create special commissions to depart from their rules of justice. Spain held an open trial in Madrid (http://news.bbc.co.uk/2/hi/europe/6363149.stm) for the individuals accused of that country's 2004 train bombings. The British put those accused of perpetrating the London subway bombings (http://www.nytimes.com/2008/04/11/world/europe/11britain.html) on trial right in their normal courthouse in London. Indonesia gave public trials (http://www.cnn.com/2003/WORLD/asiapcf/southeast/05/12/bali.bomb/) using standard court procedures to the individuals who bombed a nightclub in Bali. India used a Mumbai courtroom (http://timesofindia.indiatimes.com/india/26/11-trial-will-go-on-despite-Kasabs-confession/articleshow/4803238.cms) to try the sole surviving terrorist who participated in the 2008 massacre of hundreds of residents. In Argentina, the Israelis captured Adolf Eichmann, one of the most notorious Nazi war criminals, and brought him to Jerusalem (http://www.ushmm.org/wlc/article.php?lang=en&ModuleId=10005179) to stand trial for his crimes.


It's only America's Right that is too scared of the Terrorists -- or which exploits the fears of their followers -- to insist that no regular trials can be held and that "the safety and security of the American people" mean that we cannot even have them in our country to give them trials. As usual, it's the weakest and most frightened among us who rely on the most flamboyant (http://photos1.blogger.com/photoInclude/x/blogger/1794/1771/1600/280642/bush.jpg), theatrical (http://wonkette.com/400514/big-john-cornyn-creates-comical-western-montage-of-self) displays of "strength" and "courage" to hide what they really are. Then again, this is the same political movement whose "leaders" -- people like John Cornyn (http://www.mattwallace.net/2005/12/john-cornyn-civil-liberties-do.html) and Pat Roberts (http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x312410) -- cowardly insisted that we must ignore the Constitution in order to stay alive: the exact antithesis of the core value on which the nation was founded. Given that, it's hardly surprising that they exude a level of fear of Terrorists that is unmatched virtually anywhere in the world. It is, however, noteworthy that the position they advocate -- it's too scary to have normal trials in our country of Terrorists -- is as pure a surrender to the Terrorists as it gets.

[boutons_deux]

OBL has fully ripped the balls off America, and esp Repugs like the dickless Boner.

[DMX7]

Wow, very well said. And yes, John Cornyn is a coward.

[Winehole23]

Well, at least the cases are moving through the courts. We could eventually regrow our spines. And our brains.

[Winehole23]

Do you always have to be so vulgar and insulting, b_d? You're getting to be like the lefty version of micca around here.

[Ignignokt]

You guys are hilarious.

OBL and the rest of Islamic extremist don't give a shit wether we have fair trials in this country or not.

They hate us because of our indulgence to vices and our cultural liberalism.

It's only u who think this is a battle to see whether you will cave in on issuing civilian trials or not. It seems like the liberals are fighting within themselves over this.

OBL could give a shit if we hung any of his underlings.

[clambake]

oh, we'll hang'em.

our way.

[boutons_deux]

OBL said he hit WTC because the US imperial, oil-protecting military boots occupied and defiled his sacred Saudi Arabian soil after the Gulf War.

"our indulgence to vices and our cultural liberalism."

sounds like you disapprove as much as you think OBL does.

[spursncowboys]

It's good to know our Constitutional rights pass to, not just non-Americans, but the armies we are at war with. What an Utopia idea.

[TheProfessor]

It's good to know our Constitutional rights pass to, not just non-Americans, but the armies we are at war with. What an Utopia idea.
Do you really think we're giving them a fair and impartial trial under the 6th Amendment by trying them in a New York City district court?

What will be interesting is if their attorneys move for change of venue due to presumed prejudice from pretrial publicity.

[MannyIsGod]

You guys are hilarious.

OBL and the rest of Islamic extremist don't give a shit wether we have fair trials in this country or not.

They hate us because of our indulgence to vices and our cultural liberalism.

It's only u who think this is a battle to see whether you will cave in on issuing civilian trials or not. It seems like the liberals are fighting within themselves over this.

OBL could give a shit if we hung any of his underlings.

Its not about them.

[Ignignokt]

OBL said he hit WTC because the US imperial, oil-protecting military boots occupied and defiled his sacred Saudi Arabian soil after the Gulf War.

"our indulgence to vices and our cultural liberalism."

sounds like you disapprove as much as you think OBL does.

WHere does the right to civilian courts come in?

[Ignignokt]

Its not about them.

We're not fighting a war against them?

[Winehole23]

Are you against exposing them to the hazards of criminal justice?

Aren't they still criminals?

[MannyIsGod]

We're not fighting a war against them?

Thats not a fact ignored in the OP and the conclusion is the same.

[Winehole23]

WHere does the right to civilian courts come in?KSH didn't ask to be there. We decided to prosecute him. We have the right to, and since we have the alleged perp, we also have the power to.

You got a problem with that, gtown?

[Ignignokt]

Thats not a fact ignored in the OP and the conclusion is the same.

Wasn't this an act of war?

[Ignignokt]

KSH didn't ask to be there. We decided to prosecute him. We have the right to, and since we have the alleged perp, we also have the power to.

You got a problem with that, gtown?

I know, we did it on our own so we can pat ourselves on the back for being above the frey.:toast Brownie for all of us!

[Winehole23]

The death penalty is ruled in to start with. No brownie points for that?

[Ignignokt]

The death penalty is ruled in to start with. No brownie points for that?

Since you're all about them! Sure!

[MannyIsGod]

Wasn't this an act of war?

No. It was a crime. Declaring it an act of war is political rhetoric as there was no nation that attacked us.

[MannyIsGod]

I know, we did it on our own so we can pat ourselves on the back for being above the frey.:toast Brownie for all of us!

You may discount them all you want, but standards of this sort are important.

[Ignignokt]

No. It was a crime. Declaring it an act of war is political rhetoric as there was no nation that attacked us.

So u agree w/ me that Al QUeda should recieve no protection from the Geneva Convention regarding rules of "war"?

[MannyIsGod]

So u agree w/ me that Al QUeda should recieve no protection from the Geneva Convention regarding rules of "war"?

Of course not. The underlying reasons why those protections are in place are what is important here.

[hope4dopes]

The greenman is right, those fucks can't get a fair trial, so we may as well save the expense, and throw their asses off the empire state building.

[mouse]

Let Gov Perry take over they will all be dead by the end of the week.

[spurster]

For depriving us in many cases, of the benefits of trial by jury:

For transporting us beyond seas to be tried for pretended offenses:

[boutons_deux]

Don't forget that dubya and dickhead refused or were unable resolve the detainees situation for 6+ years, exactly like they couldn't finish any of the shit they started.

At least Magic Negro's DoJ and military have gotten something moving towards a resolution, which has the Repugs scared shitless, along with their white-knuckle, ball-less fear of anything Muslim.

[EVAY]

It is not clear to me why non-citizens (whether they committed an act of war or just criminal acts) should have the constitutional rights of an American citizen who stood accused of the same acts. Were the Spanish courts trying folks who were not Spanish? Were the British courts trying folks who were not British citizens? I honestly don't know the answer to those questions, but I would like to know.

I won't accuse anyone of bad faith in their position on this. It is genuinely troubling to me. I understand WH's position that not trying them at all anywhere looks fearful and cowardly. But I am concerned about the precedent that this sets for the future. While we are certain that these folks will be convicted and likely put to death, what about future situations where we know that some terrorist is guilty but we can't prove it to the standard demanded for U.S. citizens in criminal courts? What if we didn't mirandize these jerks? Can they get off on a technicality? Wouldn't that be absurd?

I think I really prefer the military tribunals on this, not unlike Nurembourg. If these are not crimes against humanity, I don't know what one would look like.

[jack sommerset]

HAHAHAHA. This is great. Actually giving these terrorist a forum to continue to spread thier hate. Please Obama dems, keep this shit going.

[George Gervin's Afro]

HAHAHAHA. This is great. Actually giving these terrorist a forum to continue to spread thier hate. Please Obama dems, keep this shit going.

what are you talking about dummy? what forum does it give them dummy?

[jack sommerset]

what are you talking about dummy? what forum does it give them dummy?

:lol You calling someone a dummy!!!!

It's called a courtroom you fucking troll. They killed 3,000 innocent Americans. They should have been killed by now. Not giving a FORUM in a courtroom to allow these pigs to continue to spew their hate against our country.

[boutons_deux]

"They killed 3,000 innocent Americans."

You Lie

[George Gervin's Afro]

:lol You calling someone a dummy!!!!

It's called a courtroom you fucking troll. They killed 3,000 innocent Americans. They should have been killed by now. Not giving a FORUM in a courtroom to allow these pigs to continue to spew their hate against our country.

ok you are a dummy. you do realize they are supposed to keep their mouths shut dummy. if they aren't called as witnesses then they keep quiet dummy. In other words they aren't going to open thier mouths at this supposed forum. dummy.

are your feelings going to be hurt if they say they hate america dummy?

[jack sommerset]

ok you are a dummy. you do realize they are supposed to keep their mouths shut dummy. if they aren't called as witnesses then they keep quiet dummy. In other words they aren't going to open thier mouths at this supposed forum. dummy.

are your feelings going to be hurt if they say they hate america dummy?

Dude, you really are a fucking dumb troll. They have lawyers that speak for them and if they want they can waive that right to a lawyer and represent themselves.

You know, talking to you is like talking to a 6 year old. You just spent the above paragraph spewing nonsense. The fact is the guilty fucks have a forum. You think they don't and you call someone dumb for telling you the truth. Then on top of it you ask me if my feelings will be hurt if they say they hate america. You fucking dumbass. My feelings are hurt because they killed 3000 innocent people and our weakass leader is allowing these killers 8 years later to tell their pathetic reasons for murdering US citizens. You really are a fucking dumb troll. But there are real folks out there that think like this troll. Good day .

[boutons_deux]

"because they killed 3000 innocent people"

You Lie

[spurster]

It is not clear to me why non-citizens (whether they committed an act of war or just criminal acts) should have the constitutional rights of an American citizen who stood accused of the same acts.

Do you believe that all people have natural rights, or just Americans?

[George Gervin's Afro]

Dude, you really are a fucking dumb troll. They have lawyers that speak for them and if they want they can waive that right to a lawyer and represent themselves.

You know, talking to you is like talking to a 6 year old. You just spent the above paragraph spewing nonsense. The fact is the guilty fucks have a forum. You think they don't and you call someone dumb for telling you the truth. Then on top of it you ask me if my feelings will be hurt if they say they hate america. You fucking dumbass. My feelings are hurt because they killed 3000 innocent people and our weakass leader is allowing these killers 8 years later to tell their pathetic reasons for murdering US citizens. You really are a fucking dumb troll. But there are real folks out there that think like this troll. Good day .

what about the families who want confront these thugs? shouldn't they have the right to do that? what about their hurt feelings? YOur feelings don't matter dummy.

[ElNono]

Dude, you really are a fucking dumb troll. They have lawyers that speak for them and if they want they can waive that right to a lawyer and represent themselves.

You know, talking to you is like talking to a 6 year old. You just spent the above paragraph spewing nonsense. The fact is the guilty fucks have a forum. You think they don't and you call someone dumb for telling you the truth. Then on top of it you ask me if my feelings will be hurt if they say they hate america. You fucking dumbass. My feelings are hurt because they killed 3000 innocent people and our weakass leader is allowing these killers 8 years later to tell their pathetic reasons for murdering US citizens. You really are a fucking dumb troll. But there are real folks out there that think like this troll. Good day .

And every time they yell they hate America, it automatically makes them guilty. And so then they will face the veredict of a jury. And then pay the price for what they did. Without televised beheadings or barbaric acts. And that day, we will have succeded. Because we didn't need to reduce ourselves to the scum that they are in order to achieve justice. That day, we respected ourselves as a nation and started rebuilding our moral high ground.

[EVAY]

Do you believe that all people have natural rights, or just Americans?

I believe that all people have natural rights. I believe that those natural rights include life, liberty and the pursuit of happiness.

I believe that in THIS country, those rights include further rights to privacy, freedom of assembly and religion, speedy trial by peers, an ability to confront your accuser, etc. etc. One obtains these rights by virtue of citizenship in this country with our constitution. Other people in other countries have different rights than our own, based on their own laws.

I DO NOT believe that those 'natural' ( or, 'everyman') rights include things like a miranda warning, or the guarantee of having an attorney present at any questioning. I am glad that as an American that I have those rights, but I am not sad that others in other countries do not have those rights, and I fail to see why a non-American in this country can lay claim to rights that are mine by virtue of my citizenship.

Thus, I do not believe that my 'constitutional' rights should be extended to those who commit crimes within my borders but have never accepted the responsibilities of citizenship under my constitutional republic.

[MannyIsGod]

responsibilities of citizenship? Being born in a certain location is a hell of a responsibility.

[Winehole23]

Board conservatives seem to be agitating for a two-tiered system of justice. First class courts and detention for citizens; second class courts and detention for non-citizens.

[Oh, Gee!!]

and seperate hearings to determine who is a citizen in order to classify him as belonging to one tier or the other before investigating and then prosecuting?

[LnGrrrR]

It's my firm belief that our justice system was designed to be as fair as possible, not just for Americans but for all.

The founders did not want to create a system of justice just for "us"; they crested the system the way the did because it was the right thing to do. And nowhere did they explicitly deny non-US citizens.

If the American system of justice is the best in the world, why are we afraid of using it? Why is it acceptable to have such lowered standards for a certain group of suspects?

If these guys are the worst of the worst, then we should have evidence to back it up. (Ive said before I'm ok with secret courts headed by judges that don't have a conflict of interest.)

[boutons_deux]

right-wingers here are promoting American "exceptionalism" where Americans are better and different than other human beans (well, especially Euro-American citizens).

"inalienable rights" was meant to be inalienable for Americans? for all human beans?

The undigested poison pills of the dubya/dickhead/rummy Reign of Error continue to distract and poison US life.

[EVAY]

I do not accept that a position that says that American constitutional rights, which go BEYOND the inalienable human rights of life, liberty and the pursuit of happiness, are necessarily the automatic rights of every human being on the fafe of the earth, just because we, in this country, enjoy them.

Based on some of the logic utilized in this thread, it would seem to me that we should also open our voting to anyone in the world. I mean, we have virtually universal suffrage for the vote in this country. It was not always the case, inasmuch as we developed from a male-land-owning class of voters to one that now includes those who own nothing, women and people of all races. I consider that a positive development for our country. We do not, however, allow non-citizens to vote in our elections. We don't even allow citizens who have committed certain felonies to vote in our elections.

So it is not the case that we do not put limits on what are our constitutional rights when it comes to non-citizens. My position is that the full panoply of legal rights in a court of law may be comparable to voting. i.e., if you are not a citizen, you don't have access to all the same rights that I do.

Please do not accuse those that differ with you on this to be cowardly or 'afraid'. That is beneath all of us.

[Winehole23]

My position is that the full panoply of legal rights in a court of law may be comparable to voting. i.e., if you are not a citizen, you don't have access to all the same rights that I do.Counterfactual. The onus should be on you to show why our system of justice should institute second class courts and jails, instead of having one system of justice for everyone.

In criminal courts the life and liberty of alien defendants are no less at hazard than those of citizens: why should they receive any less protection?

If the sword of law threatens to separate men from their life and liberty, why don't the procedural niceties that protect life and liberty rise also to the level of natural law?

Having a second class system of justice is contrary to over 200 years of American custom, and it makes us look like hypocrites.

You haven't even made the case that American criminal procedure needs to change EVAY, just that there is a logical argument that non-citizens needn't enjoy the law's protections when they are fully exposed to its hazards. Good luck with that.

[Oh, Gee!!]

so if Manu gets popped for DWI he can be held indefinitely without bail or a hearing because he's not a citizen? is that what you want, EVAY? for manu to be held forever with no notice of the charges against him? and you call yourself a spurs fan. pffft.

[admiralsnackbar]

It is not clear to me why non-citizens (whether they committed an act of war or just criminal acts) should have the constitutional rights of an American citizen who stood accused of the same acts. Were the Spanish courts trying folks who were not Spanish? Were the British courts trying folks who were not British citizens? I honestly don't know the answer to those questions, but I would like to know.


If memory serves, some of the original WTC bombers were tried and convicted domestically -- as far as I know they weren't citizens. If that's right, there is at least precedent to hang this on, even if it doesn't clarify your questions re: justification or process.

Just speculating, I'd say trying them in US courts does two things; 1) lessens the likelihood that a terrorist will be released back to his native land and suffer fewer -- or no -- consequences for his crime there, and; 2) serve as a symbolic band-aid (covering the last administration's terrorist-recruiter's wet-dream of a policy) showing that our government is superior and more just than the one Jihadists propose. Regarding #2, I can't help but feel it's too little, too late.

Also regarding #2, I know people like Whott will complain that this represents some form of appeasement. I would disagree with that position because we aren't talking about strategy between two sovereign nations, in which concessions might be taken as signs of weakness. Instead we're talking about making it harder for extremists to recruit new members -- we aren't, after all, going to change any Jihadists minds with our policies, but if we can give them less to work with as far as comporting ourselves within the letter of our laws and ideals is concerned, the movement stops being able to hang on our hypocrisy and dies like any other death cult.

This "war" can't be won on a battlefield when the enemy hides among the innocent -- the only way we eliminate the threat is to win hearts and minds (along with some surgical wet-work, if need be).

[EVAY]

Counterfactual. The onus should be on you to show why our system of justice should institute second class courts and jails, instead of having one system of justice for everyone.

In criminal courts the life and liberty of alien defendants are no less at hazard than those of citizens: why should they receive any less protection?

If the sword of law threatens to separate men from their life and liberty, why don't the procedural niceties that protect life and liberty rise also to the level of natural law?

Having a second class system of justice is contrary to over 200 years of American custom, and it makes us look like hypocrites.

You haven't even made the case that American criminal procedure needs to change EVAY, just that there is a logical argument that non-citizens needn't enjoy the law's protections when they are fully exposed to its hazards. Good luck with that.

Actually, WH, my position is that American criminal procedure does not need to change. It just does not need to apply to these cases. Take, for instance, the trials of the war criminals in Japan and Nurembourg after WWII. Those individuals had SOME of the rights and priveleges that attend American court procedure, but not all of them. It wasn't considered a 'second-class' system of justice, but it was taken on its own merit.

I will not accept that a system of justice that is not identical to our own is necessarily 'second-class'. Nor am I proposing that the folks in question here receive 'second-class' justice.

I would further suggest that reliance on '200 years of American custom' ignores the trials of the accused war criminals in virtually every war we have been in. They were not tried in criminal courts in American cities.

I guess I am making, in my own mind at least, a distinction between the 'terror' suspects and some poor schmuck from some foreign country who gets picked up here for robbing a bank or something. I'm afraid I really don't believe that an act of war should be tried in criminal courts.

[admiralsnackbar]

I guess I am making, in my own mind at least, a distinction between the 'terror' suspects and some poor schmuck from some foreign country who gets picked up here for robbing a bank or something. I'm afraid I really don't believe that an act of war should be tried in criminal courts.

Although the scale of the murder was immense, it was, ultimately, murder and not war. I'm pretty sure that as far as the deployment of our military is concerned, war is defined as a conflict of nations. IIRC, we went to "war" with terrorism because it opened up broad vistas of legal leeway with respect to the treatment of suspects.

[EVAY]

If memory serves, some of the original WTC bombers were tried and convicted domestically -- as far as I know they weren't citizens. If that's right, there is at least precedent to hang this on, even if it doesn't clarify your questions re: justification or process.

Just speculating, I'd say trying them in US courts does two things; 1) lessens the likelihood that a terrorist will be released back to his native land and suffer fewer -- or no -- consequences for his crime there, and; 2) serve as a symbolic band-aid (covering the last administration's terrorist-recruiter's wet-dream of a policy) showing that our government is superior and more just than the one Jihadists propose. Regarding #2, I can't help but feel it's too little, too late.

Also regarding #2, I know people like Whott will complain that this represents some form of appeasement. I would disagree with that position because we aren't talking about strategy between two sovereign nations, in which concessions might be taken as signs of weakness. Instead we're talking about making it harder for extremists to recruit new members -- we aren't, after all, going to change any Jihadists minds with our policies, but if we can give them less to work with as far as comporting ourselves within the letter of our laws and ideals is concerned, the movement stops being able to hang on our hypocrisy and dies like any other death cult.

This "war" can't be won on a battlefield when the enemy hides among the innocent -- the only way we eliminate the threat is to win hearts and minds (along with some surgical wet-work, if need be).

I respect your position, and moreover, it makes a great deal of sense. I will think about what you are saying, because I think you are right about theWTC bombers of the early nineties. I have the same memory about them being tried in the court system, and I had completely forgotten about that.

With respect to the propaganda value...yeah, I think that is just wishful thinking. While the prior admin's position may have made things worse, I think that this will not bring the U.S. to a position of higher standing in the court of world opinion. You are right...that boat sailed a long time ago.

Well, I appreciate your input immensely. Thank you.

[Winehole23]

I guess I am making, in my own mind at least, a distinction between the 'terror' suspects and some poor schmuck from some foreign country who gets picked up here for robbing a bank or something. I'm afraid I really don't believe that an act of war should be tried in criminal courts.The law made no such distinction, pre 9/11.

Terrorists are still criminals under the law. By way of a novel definition, they may now also be subject to article III commissions, the constitutionality of which may not be disputed but the wisdom of which may.

Clearly, it now lies at the discretion of the president whether terrorists will be prosecuted under the law, or instead declared "illegal enemy combatants", subject to military commissions and indefinite detention.

IMO glossing the law of war to include the actions of criminals who are not the agents of any other nation does violence both to the notion of war and to the law itself. It's a procrustean bed.

[Winehole23]

This sort of reasoning is characteristic of the whole GWOT. Instead of following the law, the law is continually changed to fit the facts, or to conduce to the desired results. One certainly can question if the results are so important that it justifies making a hash of both the law and our hard-won reputation for impartial justice.

[EVAY]

This sort of reasoning is characteristic of the whole GWOT. Instead of following the law, the law is continually changed to fit the facts, or to conduce to the desired results. One certainly can question if the results are so important that it justifies making a hash of both the law and our hard-won reputation for impartial justice.

But the law is dynamic, is it not? Mustn't it change to reflect current and/or changed situations? Surely you don't mean to say that ANY change in the law 'makes a hash' of it, just because you disagree with it. I wonder if the U.S.' reputation for impartial justice matters much to AQ members. It matters to you and to me, and that is as it should be. As long as the alleged perpetrators of these crimes are judged fairly, however, it is not such a big deal to me if they didn't get their Miranda warnings.


Let's assume for just a minute that KSM was not mirandized when he was caught in Pakistan. Would you be in favor of letting him go free because of that?

[admiralsnackbar]

Law is dynamic, but its purpose is to guide our actions. It's a two-way street, I realize, and our actions also guide law... but the founders framed the legislative process such that laws would have to develop slowly, from a continued need for them. By invoking presidential war powers, Bush did, in fact, make a hash of things. In a hurry.

The famous Bushism that will always stick in my craw is when he was being advised that actions he was pursuing re: the Patriot Act were potentially unconstitutional and he said: "It's just a goddamned piece of paper!" This is what the POTUS who vowed to uphold the constitution says? Christ.

[EVAY]

Law is dynamic, but its purpose is to guide our actions. It's a two-way street, I realize, and our actions also guide law... but the founders framed the legislative process such that laws would have to develop slowly, from a continued need for them. By invoking presidential war powers, Bush did, in fact, make a hash of things. In a hurry.

The famous Bushism that will always stick in my craw is when he was being advised that actions he was pursuing re: the Patriot Act were potentially unconstitutional and he said: "It's just a goddamned piece of paper!" This is what the POTUS who vowed to uphold the constitution says? Christ.

Hey, the last thing I want to do is defend the folks that were more than willing to do away with all of the bill of rights in the name of National Security. Good grief, I gave presents to people of cups that had the 'disappearing bill of rights' for Christmas after the Patriot Act went into effect. The Bush and Cheney admin walked all over the law. I hated it.
I don't want any part of that, and I was not aware that my position was supportive of that. I feel a bit like I'm the butt end of a 'slippery slope' reductio ad absurdam' argument.

[Winehole23]

But the law is dynamic, is it not? Mustn't it change to reflect current and/or changed situations? Must? Surely not.


Surely you don't mean to say that ANY change in the law 'makes a hash' of it, just because you disagree with it.I do not. GWB made a hash of the law of war, that much is certain.


I wonder if the U.S.' reputation for impartial justice matters much to AQ members.I don't really care, but I wouldn't be too quick to assume we can know the answer to this, if there even is one.


It matters to you and to me, and that is as it should be. As long as the alleged perpetrators of these crimes are judged fairly, however, it is not such a big deal to me if they didn't get their Miranda warnings.


Let's assume for just a minute that KSM was not mirandized when he was caught in Pakistan. Would you be in favor of letting him go free because of that?Absolutely not.

This line of questioning strikes me as being a bit artificial, EVAY. What makes you think Miranda will even be an issue at trial with KSM? The predictable legal bramble will be the conditions of his detention: Miranda obviously has no relevance to detentions made abroad.

[admiralsnackbar]

Hey, the last thing I want to do is defend the folks that were more than willing to do away with all of the bill of rights in the name of National Security. Good grief, I gave presents to people of cups that had the 'disappearing bill of rights' for Christmas after the Patriot Act went into effect. The Bush and Cheney admin walked all over the law. I hated it.
I don't want any part of that, and I was not aware that my position was supportive of that. I feel a bit like I'm the butt end of a 'slippery slope' reductio ad absurdam' argument.

Sorry, chum -- I had no intention of giving that impression. I only wanted to underscore how vital it is to separate the powers and not act hastily -- that is, "too" dynamically.

[EVAY]

Must? Surely not.

I do not. GWB made a hash of the law of war, that much is certain.

I don't really care, but I wouldn't be too quick to assume we can know the answer to this, if there even is one.

Absolutely not.

This line of questioning strikes me as being a bit artificial, EVAY. What makes you think Miranda will even be an issue at trial with KSM? The predictable legal bramble will be the conditions of his detention: Miranda obviously has no relevance to detentions made abroad.

Well see now I know something I didn't know before. Why wouldn't miranda be an issue? I'm not a lawyer so I really don't know these things...do our laws make a distinction between foreign and domestic criminals with respect to miranda? (Serious question...I don't know...but I've been worrying about it).

Agreed, the conditions of his detention will be a HUGE issue, I suppose, if he pleads not guilty. Some talking head I heard on tv said that it doesn't matter if one trial after another keeps getting thrown out...they will just try him on the next 55 counts they have him on.

People keep saying he will plead guilty to all charges. What would he gain by doing that?

[admiralsnackbar]

People keep saying he will plead guilgy to all charges. What would he gain by doing that?

It wouldn't be surprised -- the poor misguided sonofabitch is probably proud of his accomplishments. I mean you don't plan the murder of thousands of people because your convictions are half-ass.

[Winehole23]

Well see now I know something I didn't know before. Why wouldn't miranda be an issue? I'm not a lawyer so I really don't know these things...do our laws make a distinction between foreign and domestic criminals with respect to miranda? (Serious question...I don't know...but I've been worrying about it).Just guessing here, because I am no lawyer either: (1.) KSM is not a US citizen, and was detained incident to war, rather than by US civil authorities; (2.) he was detained abroad (i.e., where our law does not reach).


People keep saying he will plead guilty to all charges. What would he gain by doing that?A slightly better chance to keep his life, perhaps.

[FromWayDowntown]

Miranda won't throw out his arrest or cause his release. What it might do is preclude the use of certain statements that he made without having first been Mirandized. But, frankly, given what we know about KSM's arrest, detention, and "confessions," Miranda is a fairly trivial concern. What will ultimately keep out most (if not all) of KSM's statements is the fact that he was (reportedly/allegedly) waterboarded again and again and again during his detention.

Honestly, I'd be shocked if the government's case against KSM depended to any degree upon anything that KSM confessed after his capture/arrest. It would be legal suicide to base a case against a defendant who was waterboarded upon anything that the defendant said once in custody.

[doobs]

Miranda won't throw out his arrest or cause his release. What it might do is preclude the use of certain statements that he made without having first been Mirandized. But, frankly, given what we know about KSM's arrest, detention, and "confessions," Miranda is a fairly trivial concern. What will ultimately keep out most (if not all) of KSM's statements is the fact that he was (reportedly/allegedly) waterboarded again and again and again during his detention.

Honestly, I'd be shocked if the government's case against KSM depended to any degree upon anything that KSM confessed after his capture/arrest. It would be legal suicide to base a case against a defendant who was waterboarded upon anything that the defendant said once in custody.

I agree with this. For the government to take this risk, where the consequences of acquittal would be immense, the case against KSM must be exceedingly strong, with or without his confession.

Although a conviction would seem to be a certainty, I wonder if KSM will be disinclined to plead guilty now that some of the evidence against him will not be introduced. If that happens, lower Manhattan will be a circus.

[FromWayDowntown]

From a practical standpoint, the two issues that most concern me about a trial of KSM and his colleagues are: (1) the almost-inevitable disclosure of sensitive information through the discovery processes (and the real difficulty in protecting all such information while fulfilling the defendant's right to discovery, limited as it may be in criminal trials); and (2) the heightened risk that a trial of those guys in NYC will invite another attack upon NYC by those (whether directly aligned with AQ and sent at its bidding, simply supportive of its goals, or simply desirous of the publicity that will come with such an attack).

I don't know that #2 justifies a fear of prosecution -- personally, I think the strongest message to send to terrorists is that we will not change, not one iota, based upon the threats that they offer. But I do think the concern is a legitimate one and a significant part of the prosecutorial calculus.

[doobs]

From a practical standpoint, the two issues that most concern me about a trial of KSM and his colleagues are: (1) the almost-inevitable disclosure of sensitive information through the discovery processes (and the real difficulty in protecting all such information while fulfilling the defendant's right to discovery, limited as it may be in criminal trials); and (2) the heightened risk that a trial of those guys in NYC will invite another attack upon NYC by those (whether directly aligned with AQ and sent at its bidding, simply supportive of its goals, or simply desirous of the publicity that will come with such an attack).

I don't know that #2 justifies a fear of prosecution -- personally, I think the strongest message to send to terrorists is that we will not change, not one iota, based upon the threats that they offer. But I do think the concern is a legitimate one and a significant part of the prosecutorial calculus.

I think concern (1) is a stronger argument for sticking with the military commissions, since the risk of disclosure of sensitive information is not unique to the Southern District of New York. Concern (2) primarily addresses the actual location of the trial, though I suppose it applies less forcefully to any federal district court in America.

[FromWayDowntown]

I think concern (1) is a stronger argument for sticking with the military commissions, since the risk of disclosure of sensitive information is not unique to the Southern District of New York. Concern (2) primarily addresses the actual location of the trial, though I suppose it applies less forcefully to any federal district court in America.

Yeah, of the two, the structural concern is the disclosure problem; I suspect that the government can protect some information via my assumption that recognized privileges can be relied upon to protect classified material from release in even criminal trials. And since I'd presume that a goodly chunk of the existing classified information is either: (a) not going to be relied upon by the United States because it is the fruit of the poisonous tree or (b) not going to be exculpatory and subject to Brady disclosure. Still, because discovery rules are more liberal than evidentiary rules, I think it will be difficult (if not impossible) to categorically protect sensitive information.

[ElNono]

Can't the judge issue a protective order? Wouldn't that be sufficient?
I mean, protecting things like trade secrets happen in court all the time.

[doobs]

Yeah, of the two, the structural concern is the disclosure problem; I suspect that the government can protect some information via my assumption that recognized privileges can be relied upon to protect classified material from release in even criminal trials. And since I'd presume that a goodly chunk of the existing classified information is either: (a) not going to be relied upon by the United States because it is the fruit of the poisonous tree or (b) not going to be exculpatory and subject to Brady disclosure. Still, because discovery rules are more liberal than evidentiary rules, I think it will be difficult (if not impossible) to categorically protect sensitive information.

Do you think KSM might have a speedy trial claim? I should probably know the answer to that question.

[EmptyMan]

Send them to Texas.

[FromWayDowntown]

Do you think KSM might have a speedy trial claim? I should probably know the answer to that question.

Perhaps, but I can't imagine that any judge would grant that motion, given the balancing of interests that is inherent in analyzing any speedy trial claim. Clearly, KSM's case is going to be a complex one and the circumstances giving rise to the delay in bringing him to trial are relatively unique. I would also think that no federal appellate court would be inclined to overrule a district judge's decision to deny the claim.

Moreover, Jose Padilla went that route without any success, so the precedent is there to support denial of a speedy trial claim here.

In KSM's case, he's been under indictment since 1996, but was not captured until 2003, and in 2008 was charged with additional terrorist acts that will be tried if this case goes forward. While I don't think the sheer aggregation of the charges will justify denial of a speedy trial claim, the government could, I think, make a strong argument (to a sympathetic listener) that it has been obligated to undertake substantial investigation to determine the exact extent of this prosecution and to gather wide-ranging facts in support of all the charges that it might bring. It would be reckless for the government to risk losing charges it might be able to levy by failing to indict for this trial.