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.

  
Khalid Sheikh Mohammed, Umar Farouk Abdulmutallab, and anyone else apprehended and suspected of terrorism should be openly tried in a civilian court. Forget all the legal arguments and debates – this is about national security. The best way to ensure the safety of the U.S. is to give these men their day in court, in public, and allow the legal system to run its course.

You’re all familiar with the arguments against allowing suspected terrorists in court – it will turn into jihadi propaganda, it will compromise intelligence sources, and it limits our ability to interrogate terrorists. Steven Simon does a thorough job demolishing those falsehoods, but even without his well-reasoned defense of the judiciary a higher priority should compel the Obama Administration to send all detainees directly to court.

Despite what some pundits and politicians may tell you, we are not fighting a Global War on Terror. Terrorism is a tactic – how can you declare war on a tactic? Osama bin Laden and his ilk use terrorism, but they are not defined by it. They seek to destroy the U.S., or at the very least curb its power and influence. This is their goal, not terrorism. They cannot do this alone – a few ideologues, no matter how dedicated, are incapable of bringing down a superpower. And they know this. To succeed, they must convince the rest of the world that America is not the benevolent leader it claims to be, but rather another imperialist hegemon bent on conquest and power. In other words, bin Laden and others are fighting a battle of ideas, and terrorism is only one of their many tools to win that battle. If we fail to acknowledge that we are in a war of ideas, not a War Against Terror, we are destined to lose. By detaining and denying people the right to trial, we give undermine our position make ourselves more vulnerable.

When we abandon our ideals – democracy, freedom, and basic human rights – we help Al Qaeda make their case. The best recruiting tools extremists have ever possessed were the photos and stories that emerged from the prisoner abuse scandal at Abu Ghraib. If we want to win this war of ideas, we need to demonstrate that what happened at Abu Ghraib was a tragic mistake, not an indicative behavior. Keeping prisoners locked in military detention without charge or trial reinforces the negative image of the U.S. that bin Laden cultivates and strengthens his position. Fair and open trials send the exact opposite message – America is a just nation of laws and respect, not an imperialist power, and that it is bin Laden who is ideologically bankrupt.

If the Obama Administration is serious about protecting America, then they need to ensure that all detainees receive their day in court. It’s not about the legal minutia; it’s about national security.

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.

From the ever-so 'pithy' Michele McPhee a conservative radio 'host' up here in Boston:

“As liberal a bastion as we are, I think people take umbrage, whether you are left or right, at Khalid Sheikh Mohammed laughing his head off in a taxpayer-funded cell at a billion dollars a year. Even the biggest moonbat can’t wrap their arms around that,” McPhee said. “It’s symbolic of how out of touch some politicians are.”

Oh Man!

Is the cost of Gitmo or a Supermax measured only in dollars and cents? While there are several valid arguments both for and against trying Khalid Sheikh Mohammed in civilian court (see my next post!), I think its important to approach this quote (and the general FOX News kerfufflery around trying KSM and the UndieBomber in civilian court) with the gravitas that it deserves:

Stop being silly.

Lets talk about cost-benefit here. We can calculate this in the nice quantifiable black and white numbers -- but we would be missing the whole picture. In the past few years, billions of dollars have been spent having KBR/Haliburton build up our internment facilities in Cuba, but the cost to the United States has been much more than the dollars spent.

As I mentioned in my earlier post, our past approach to shadowy apprehensions, semi-legal interrogation techniques, and secretive military tribunals has become a constant motivator and recruitment tool for Al Qaeda and its affiliated movements -- and has fueled dijihadis and third-generation self-starter terrorists around the globe.

But perhaps even more concerning, Guantanamo has become a recruitment center, training camp, and radicalization zone for all alleged enemy combatants -- whether they were rightly 'charged' or otherwise. It is an uncomfortable truth -- without due process or access to legal aid, many innocents have found themselves in Gitmo for a stay. How many walk out innocent is another matter. There has been, in the past few years, a steady stream of ex-Guantanamo inmates who have participated in 'martyrdom ops', or been arrested mid-plot. Still skeptical? Use the google!

Specifically, AQAP has been revitalized with ex-Gitmo recruits, and if you want a more direct example of what Gitmo may have cost us so far, the man who trained Umar Farouk Abdulmutallab (our least favorite example of the efficacy of Liar Liar Pants on Fire) was a former inmate at Gitmo.

AQAP's media wing Malahem has celebrated the impact that Guantanamo Bay has had on their recruitment and strength, most memorably in last year's video "From Here We Begin, at Al Aqsa We Shall Meet". In it, Abu Sufian al Azdi Saeed al Shihri (a former Gitmo resident) stated:

"We assure our leaders Sheikh Osama Bin Laden, may God protect him, and Dr. Ayman al Zawahiri, that we shall continue to follow the path of jihad. By God's will, our imprisonment has only made us more resilient and more committed to our principles that we fought jihad and were taken prisoners for"

al Shihri (by the way) is now AQAP's number 2. He has gone from Gitmo to XO quite fast.

But this is merely one example of what Gitmo has cost this nation. It has also driven a wedge between the US and it allies, and has soured many NGOs and IGOs about participating in stability operations in both Iraq and Afghanistan, where they are desperately needed. Today marks a year since President Obama pledged to close Gitmo in that time, and it is my hope that that pledge will be realized in the future. However, that leaves us with the most pertinent question:

What now?

While there are many things that can (and will be) said about the civilian trial of KSM, I don't think it particularly Moonbatty to think we need a new approach to how we deal with captured terror suspects -- one that does not fuel our enemies, or lessen our national security.