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

[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 cons utionality 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 uncons utional and he said: "It's just a goddamned piece of paper!" This is what the POTUS who vowed to uphold the cons ution 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 uncons utional and he said: "It's just a goddamned piece of paper!" This is what the POTUS who vowed to uphold the cons ution 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 sonofa 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 cir stances 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.