Squaring the Culture




"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

11/19/2009 (5:14 pm)

On Trying KSM in Court

Lindsey Graham is not my favorite Senator by any means, but he demolished Erich Holder in this 4-minute exchange in the Senate Judiciary Committee. Listen:

The lawyers over at Power Line Blog have a pretty good analysis of this that, not coincidentally, concurs with my layman’s opinion. Holder’s attempt to defend the absence of Miranda rights for Osama bin Laden on the basis that his guilt “is so overwhelming” would not survive 5 seconds of scrutiny in any court in America, nor should it; he offered it because he was on the spot and had nowhere to hide. He was on the spot because Graham was clearly correct: if US courtroom standards apply to the 9/11 plotters, then they apply to all such detainees. Holder can’t have it both ways.

The Obama administration’s argument that they’re genuinely offering Kalid Sheik Mohamed a fair trial and full rights according to the rule of law is contradicted by their claim that the outcome is certain. If the outcome is certain, the trial is a show trial like the show trials of the Stalinistas in the 1940s’ Soviet Union. If KSM has full rights, the outcome cannot be certain. The juxtaposition of those two claims — rule of law, outcome certain — is the consequence of the Holder Justice Department having decided beforehand on other grounds that they were going to try KSM in federal court, and then justify the decision by whatever means they needed to manufacture.

So, on what other grounds did they decide that they were going to try KSM in federal court? I believe John Yoo, former Bush administration counsel and favorite whipping-boy of the insane left, gives us a clue when he describes what happened when we tried Zacarias Moussaoui in an American court:

For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots.

All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges…

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.

This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the “blind Sheikh”), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.

In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.

Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.

Leftists historically love to use courtroom rules as a vehicle to produce documentary evidence regarding government “misbehavior” as they perceive it. This was the motivation behind the dozens of lawsuits filed against phone companies for cooperating with the Bush administration in eavesdropping on possible terrorists, as I discussed here more than a year ago.

Is there documentary evidence that leftists desire to be made public related to Kalid Sheik Mohamed? Oh, you betcha. They’re already investigating the CIA, but you can be sure that KSM’s attorneys are going to bring up the manner of his interrogation in order to invalidate his confession. What will follow will be a public trial of the Bush administration’s interrogation policy, carried out in the pages of the New York Times by reporters already known to be hostile to the Bush administration. Also, I’m willing to bet that the choice of venue was influenced by the Justice Department’s knowledge of the judicial habits of the panel of judges in that district; they’re expecting liberal interpretations of evidence rules requiring government disclosure. Count on it.

Is that the goal? To be sure, trying KSM and the other 9/11 plotters as criminals has been the misguided aim of the ACLU and other hard leftists for years. They claim to be defending the rule of law. The ideologically-driven selectivity of their idea of the rule of law notwithstanding, I accept this as at least a plausible goal of some of the less-well-informed dupes of the neo-Marxist left.

However, the better-educated of these folks harbor ulterior motives. If they attempted publicly to try Bush administration officials, they would surely trigger violent reactions, fueled by accusations of attempting to criminalize policy differences. They do want to criminalize those policy differences, as I discussed here and here, but I think they also fear the repercussions. So, they’ve chosen a less direct route; they’ll try the 9/11 plotters, but in a forum that allows those plotters to turn the trial into a trial of the Bush administration. That way, they can pretend they’re defending the rule of law while continuing to vilify the good men who protected us from terrorist attack from 2001 through 2008.

Never believe what leftists say about their intentions, especially when their defense is so utterly lame in the face of easily predictable questions.

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