Wednesday, February 3, 2010

I was planning to write a piece to supplement my last post and argue that Umar Farouk Abdulmutallab, everyone's favorite underwear bomber, was a perfect example of why utilizing the criminal justice system for terror suspects was the right decision.  However, I discovered that Adam Serwer over at TAPPED already wrote the exact same piece, and wrote it better than I could have done.  So instead of reinventing the wheel, I highly recommend you all check him out.

Additionally, in response to my previous post, my colleague "Angry" Jeff Schneider raised a few excellent questions about the feasibility of trying terror suspects in court.  He first questioned if it was even possible to give prominent terrorists, like Khalid Sheikh Mohammed, a fair trial.  I believe it is.  Jack Goldsmith over at Slate gives a nice run-down of how the legalistic issues, such as an impartial jury, can be solved.  Steven Simon also makes the case that there is sufficient evidence that is unclassified and "clean" (i.e. not obtained through torture or other illegal means) to secure a conviction under standard legal rules.

I think this also speaks to Jeff's final point, about the danger of it become a Stalinist show trial.  I agree that the possibility exists, and it would be a huge problem for the U.S. if the proceedings are perceived that way.  In fact, it would be a national security issue, as I addressed previously.  However, I believe that, once the case goes to court, it will be conducted in accordance with the legal principles of the U.S., which ensures fairness and equality, and that this will be plainly evident to all observers.  If the concern is about perception, even a flawed trial is better than indefinite detention.  In short, I still think trying KSM in a civilian court is the right decision.


Jeff Schneider said...

Dave -- first, great post!

second -- on this issue, I think it very important to view the civilian trial of Umar Farouk "UndieBomber" Abdulmutallab and KSM.

The UndieBomber, after setting his genitals on fire, was immediately arrested and mirandized. His entire case has been above the board, and properly handled.

KSM, I believe, is another story entirely. With the UndieBomber there will be witnesses, forensics, and a confession -- none of it the fruit of the "poisonous tree". With the UndieBomber we find a case where his act has been defined, from start to finish, as criminal.

KSM, was first a "enemy mastermind", then "enemy combatant". He was spirited away, in the middle on the night, without warrant -- to Bagram, then Gitmo. Waterboarded more than the waves on Waikiki, and then put before a criminal tribunal.

Clean evidence or no -- his classification as "criminal" is a new suit -- and i'm not sure we can make it fit. Or if we should even try. Its not something I'm proud of, but there may be no "right" answer here. What do you think?

angrily, (but not really!)


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