Friday, January 22, 2010

I'm almost afraid to wade into this issue, as I'm sure I will anger many (I invite your comments!), but this issue is too important NOT to post on. Below is my analysis of the Obama Administration's decision to try Khalid Sheikh Mohammed in a civilian courtroom in lower Manhattan.

Is Khalid Sheikh Mohammed a criminal? Yes -- and, in a perfect world, he should get his day in court. He should be tried by an impartial jury lead by an impartial judge, and legally collected evidence should be presented for and against his guilt. The findings of the court should reflect the strength of our constitution -- finding someone guilty of a crime despite all of the protections afforded the accused.

How beautifully normative -- huh?

But we have problems here. Alot of them.

The Obama Administration has put on their normative caps (something I usually applaud) for exactly the wrong issue, at exactly the wrong time. Unfortunately, they have also pinned alot of their credibility and political capital to this trial.

Beyond moving the trial to the remotest corner of the globe, into a village without Internet, TV, radio, telegraph, semaphore, or word of mouth -- you are not going to find an impartial jury, much less an impartial judge. By holding the trial in Lower Manhattan a few blocks from ground zero, you raise the absurdity of this fact. Anyone who can swear in court that they are able to render an impartial verdict for KSM (especially in NY) is a liar. Can you bar the jurors from visiting something as innocuous as wikipedia?

Then there is the "evidence" issue. Will the transcripts of KSM's Gitmo interrogations be allowed? How do you transliterate the sound of water flowing over someone's gagged mouth? I would think that any lawyer would argue that there are some serious 4th and 5th amendment issues at play there. Should a judge rule that they are admissible, can a proper chain of custody be established over the content of the transcripts without violating alot of people's TS/SCI clearances?

Was KSM mirandized?

What evidence can be presented in open court? Will the government be granting temporary clearances to the jurors?

But more importantly, this trial will run the risk of perhaps the greatest opportunity for jury nullification even witnessed. Will this be a trial of a Terrorist, or a trial on Waterboarding? Will this be a trial of the 9/11 plotters, or an indictment of Gitmo?

Ultimately, I think this unlikely. KSM will be found guilty because he is guilty, but the issue is this: if the result of the trial is a foregone conclusion, is it a trial? The jury, upon entering the courtroom will not be questioning KSM's guilt or innocence, but rather how long they have to sit there before they can say "guilty" and go home.

Will the US government be issued a gag order on talking about terror, al Qaeda, KSM et al. during the trial to avoid charges of jury tampering?

This will be a show trial. Which is the polar opposite of what the Obama Administration wants, and it is a tragedy. We cannot find him innocent -- but we cannot give him a fair day in court either. What kind of defense will KSM present for his actions? Even scarier, what kind of defense will he be ALLOWED to present?

Ultimately, I don't know how else we can approach this mess. It seems that if we are to try terrorists like KSM in civilian court, they must be treated as criminals from their arrest to their incarceration. Since the Bush Administration failed to do this, we cannot attempt to reverse engineer a trial for those detained before Obama took office. This is something it appears the current President is seeking to rectify with the UndieBomber, but will a free and fair trial for terror suspects even be possible in this media environment?

In the words of my colleague Jeremy, that's my 50 cents (inflation...)

If you've got a better idea, let me know.

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