Breaking: Khalid Sheikh Mohammed Won’t Participate in His Military Commission

by Kevin Jon Heller

So reports the media.  I, for one, am shocked: it’s almost as if KSM has concluded, having been waterboarded (read: tortured) 183 times in one month, that the U.S. might not actually be committed to the highest standards of fairness and justice now.

Come on, KSM.  Can’t bygones be bygones?  Heed Obama’s injunction: now is the time to look forward, not backward.

5 Responses

  1. At the Legal Ethics Forum I just posted the following in response to a link to “Lawfare’s coverage of the KSM proceedings:” While he appears to have used numerous aliases, why can’t we use his full name: Khalid Sheikh Mohammed. Is the use of initials in this way a common practice in referring to individuals in criminal trials (irrespective of how ‘different’ this trial is)? After his full name is introduced, then perhaps we can simply use his surname. Among other possible complaints, “KSM” sounds like the name of a fast-food sushi chain or some corporate entity, and so forth. Whatever we might think of him and/or the acts he may be criminally liable for, he is still a person, with a name, and the use of his initials seems in some strange if not inexplicable way, to diminish the basic recognition that this trial involves a human being, a person, with a name.

  2. Of course the proceedings involve more than just Khalid Sheikh Mohammed.

  3. He is at least guilty for staying illegally on Guantanamo.

  4. Lawfareblog is a bit snarky but that is par for the course in this space.  I wrote to the Toledo Blade today about the coverage of the trial (Defendant’s disruptive; 9/11 victims frustrated being the memes I have seen on the crawls etc).

    I hope there will be a higher caliber of reporting over the course of these cases.

    Here is the letter I wrote to the local paper here the Toledo Blade on this.

    Dear Editor,
    Reading about the KSM military commission and the 9/11 families experiences in watching it prompt this letter.  While I lost a friend from high-school who just happened to be giving a speech in the Twin Towers that day, I know that I can not imagine the depths of the pain of those 9/11 families over their tremendous loss.  I share with them their frustration with the length of time it has taken to bring the alleged perpetrators of that horrible day to justice.
    Let us be clear as to who caused a significant part of that delay: the Executive and the Legislature in both the Bush and Obama Administrations.  Five days after 9/11 President Bush made the fatal mistake of ordering the creation of secret prisons and over the next months put in place two things: 1) a torture regime of black sites and persons to be held outside of law in places around the world including Guantanamo and 2) bogus military commissions constructed to guarantee convictions notwithstanding evidence procured by torture.  Those fateful errors in the first six months after 9/11 were combined with the taking us to war on false pretenses to Iraq which diverted vital time, treasure and cost the lives and health of too many wonderful and brave American soldiers.  At each step of the way the Legislative Branch abdicated its responsibility to reason deliberatively about these matters out of fear of being seen as weak on terrorism in their election bids.
    These decisions have been challenged successfully in the United States Supreme Court in various periods.  After the Supreme Court  in Hamdan in 2006 rejected the original military commissions of the President and confirmed what many of us had been saying for some time that at least Common Article 3 of the Geneva Conventions applied in this war, the Executive and Legislature cobbled together the Military Commission Act of 2006 which tried to legislatively enshrine a flawed third class process as compared to our ordinary courts or the courts-martial.    After the Supreme Court in Boumediene in 2008 took the persons held at Guantanamo out of the constitutional legal limbo purposely created by the Executive putting them there and the Legislature setting rules for commissions, the issue of the Constitution’s role in these proceedings squarely confronts us (including the extent to which all the ordinary rights we expect here in the United States against torture etc apply).
    When the Obama Administration caved to the pressures in Congress to prohibit these persons being tried in ordinary federal court (as pirates and terrorists have been successfully tried for years now), the third iteration of the military commissions has been put in place by the current Executive and the Legislative.  Notwithstanding all the happy talk by the proponents of this third iteration, they are deeply flawed for many reasons that experts in the field have explained.
    I hope that the reporting on what occurs over the next months or years concerning these military commissions is of its highest caliber.  The counsel of defendants appear indifferent about soliciting any sympathy for their clients but absolutely will bring into this proceeding every aspect of the torture that was done to these people in our name.  This will be done to attempt to win their freedom, but also to highlight the fundamental flaws of this third class military commission system which derive from its initial conception.
    The judge and the lawyers will aggressively play their respective roles as these defendants and this prosecution proceed through this death penalty case flying without instruments because of the question of the extent to which Constitutional or statutory precedents from normal federal court or courts-martial apply in this bastardized process.  I have faith that these persons will play their roles with great loyalty to the greatest traditions of our legal system – but they will be playing on a flawed stage that is the product of what both the Bush and Obama Administrations have put in place with the assistance of our Congress.
    And when the torture (which did not work and is illegal) comes out in this military commission (and it will), let us not look at it with the eyes of a rainbow coalition lynch mob seeking vengeance, but with the lucid understanding of just what those fateful early decisions I have described have cost us all these past eleven years and will cost us in the future.
    Justice is not a euphemism for vengeance.  As the late Supreme Court  Justice Robert Jackson, prosecutor at Nuremberg said, you can not have judicial forms without judicial norms.  To have a judicial process it must be a process in which, by martialing appropriate evidence, the defendant has the possibility of being acquitted.  The quality of justice of tribunals is not tested by their convictions, but by their acquittals.
    We are who we have become.
    Benjamin G. Davis
    Associate Professor of Law (for identification purposes only)
    University of Toledo College of Law
    1707 Alvin Street
    Toledo, Ohio 43607
    Tel.: 567-249-7287 (cell0
    Work:419 530 5117

    Here is the first part of a series of posts in due course over at SALTLAW.ORG/Blog which my muse is calling me to do.  It focuses on the military commissions in general and for me what happened with the military commission was completely logical based on the Khan and al-Nashiri under the MCA of 2009 and earlier matters.

    More in due course.

    Stepping out of Line (Redux): Refluat Stercus or an Essay in parts on the KSM and other Military Commissions, Torture, Habeas and Detention, Targeting with Drones, False Pretenses for the War in Iraq and other aspects of the current conflict and accountability

    Not that we really give much of a damn in America about justice.


  5. Breaking, this is a giant echo chamber.

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