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Print This PageA Defense of Holder’s Decision to Try KSM in New York
James Comey and Jack Goldsmith provide here the best (although not completely convincing) defense of the decision to try KSM in New York. I agree that the most defensible explanation is that military commissions remain constitutionally vulnerable, hence it makes sense to use the civilian courts for your most important cases. I don’t quite buy this, but I think this is the most sensible explanation of what seems otherwise a totally baffling decision.
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Julian,
I would be very curious to know why you find the decision baffling.
at 8:58 am EST Kevin Jon Heller
The military commissions’ constitutional vulnerability is perhaps the strongest argument for why the government should try KSM in a civilian court.
Not only has the United States’ prestige and influence on international politics waned because of incidents such as Abu Ghraib, the waterboarding of detainees, the torture memos, etc, but the fundamental extremists have actually used the U.S.’ dubious treatment of detainees as a recruiting tool. Thus, trying KSM in a military court will undermine our efforts to win “hearts and minds” in the Middle East.
With that said, it is also important to demonstrate to the international community that we are capable of providing due process (not a watered-down constitutionally vulnerable version) to those whom we most despise, because our idea of justice is based on, among other things, the principal that a person is innocent until proven guilty.
Ultimately, Holder’s decision is indicative of the principle Justice O’Connor announce in Hamdi v. Rumsfeld: “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”
The factual differences aside, I think the underlying principle is applicable nonetheless. Therefore, I think Holder made a prudent decision in deciding to try KSM in New York rather than a military commission.
at 8:30 pm EST BDT
I agree with BDT. The article in the Post does an excellent job of laying out the legal justification for trying KSM in civilian court, but it fails to acknowledge the positive effect it potentially has on the US image both internationally and domestically. First, there is no question that the worldwide opinion of the US has been less than favorable over the last few years. By trying KSM in civilian court, we show the international community that we stand by our notions of justice and fairness and apply them to all, even our greatest enemies. Furthermore, this might help ease the blow to our image from Obama’s failure to close Gitmo by January as promised. Second, if KSM does indeed receive a fair trial, standing by our belief in our judicial system might reinvigorate patriotism among US citizens. Trying KSM so close to ground zero will at the very least be a sobering image which will invoke some feeling of a national community.
at 9:24 pm EST Amanda
I also find the defense of Holder’s decision reasonable and convincing, especially when it comes to the point made about the perceived legitimacy of the trial. As the article points out, whether KSM were tried in a federal or military court, they would claim unfair treatment. The greater degree of protections and, to an extent, transparency in the federal court system, however, offers the benefit of more easily combating that sort of claim because of the additional protections offered. I really fail to see the disadvantage of trying KSM in a federal setting given the strength of the case and the fact that he is being tried in US territory at the very site of the 9/11 attacks; his being afforded some due process does not to me seem to be likely to result in an acquittal or some sort of lenient sentence.
at 8:49 am EST Jessica Bartelt
The questionable efficacy and efficiency of military commissions is certainly a legitimate concern - the number terror suspects actually brought to trial in federal court to date far outstrips those brought to trial in military commissions.
Additionally, the transparency of trials carried out in our civilian courts is something to be desired. The therapeutic value that the transparency of the KSM et al will provide to U.S. citizens couldn’t be matched by a military commission.
On these grounds, the choice to go to federal district court is wholly justifiable.
Concerns about the trial’s legitimacy, however, are another issue, and one that would be implicated by either option.
The legitimacy of KSM’s trial is important to observers within and without the U.S. Outsiders’ perceptions of the United States will obviously be influenced by the manner in which the prosecution of 9/11 terror suspects proceeds - they will judge the trial fully aware that these defendants are the ones responsible (or at least were nominated by U.S. intelligence as best candidates for responsibility) for the most devastating and visible attack on American soil and civilians. It’s likely that they’re expecting us to conduct ourselves with much the same bulldozing momentum that led to U.S. involvement in two generation-defining wars. But legitimacy is something that concerns (should concern) U.S. citizens beyond the impacts it has on our campaign for global prom queen. Bringing these men to justice, legitimately, is the next best step toward leaving the past in the past, healing ourselves within, and moving forward as a nation to regain prominence as a leader in the global markets of ideology and actual power.
Obviously the opacity of military of commissions provides sufficient basis for questioning the legitimacy of any outcomes resulting therefrom. But, even granted the high degree of transparency, the legitimacy of a civilian trial is anything but a foregone conclusion.
Eric Holder [in]famously uttered in his Congressional showdown that “failure was not an option.” The requirement of a successful prosecution - e.g. obtaining a convictions and maximum sentencing regarding all of the accused - has been imposed upon federal prosecutors. This is a charge, many claim, that will be debited from what’s left in our legitimacy-savings account.
Some said on this week’s edition of Meet the Press that, while Holder likely intended his “not an option” comment to mean no more than good, old-fashioned football-coach-pregame-speech encouragement to his team of prosecutors, what it also communicated much more insidious - evidence that the choice to proceed in federal district court views these prosecutions as no more than a procedural formality, that Holder, the Obama administration, and the American people require nothing more legitimate for KSM & co. than the veneer of a “show trial.”
I admit, it’s highly doubtful, even if KSM and his cohorts go without conviction a in federal court caused by some misstep of the federal prosecutors or some other perceived miscarriage of the procedures of U.S. justice, that KSM and friends will ever walk free, outside the custody of the United States government. This opinion, shared by many, may fuel the show trial fire, but in reality their conviction is almost guaranteed even before the trials start - and perhaps this exactly is what Holder meant by saying “failure is not an option.”
KSM and the other defendants have confessed their involvement. And, even in light of allegations that these confessions were coerced through torture, since making these statements no portion of the confessions have ever been retracted.
What’s more is that KSM and co. intend to use their trials for show as well. KSM’s attorney stated this morning that KSM et al plan to plead not guilty, yet they will all proceed to admit their instrumental roles in the attacks, while attempting to defend themselves with ideological justifications of their actions.
I say, let them have their show trial. But let us use it to show the world that terrorism, always unjustifiable and intolerable regardless of the thrust of the ideological rhetoric used to radicalize factions and justify violence, will not be dealt with unjustly by the United States.
at 10:49 am EST Andrew D. Gonzalez
I do not find this argument baffling at all. If the US is going to try KSM, the federal courts are the way to do it. The article discussed the ineffectiveness of the military commissions, for practical and political reasons it makes sense to use the federal courts. Practically, it seems that the military commissions are unable or unwilling to provide the sentences and convictions which should be forthcoming in these cases. Politically, trying terrorists in federal courts is a continuation of President Bush’s policies (though Republicans have already and no doubt will continue to argue against trial in federal courts), which provides consistency, and sustains America’s image as a nation of laws.
at 1:16 pm EST Josh Silk