It’s generally wrong to post a private email without the author’s consent, but there’s no reason to apply that principle to spam. Below is the full text (minus a link and a request to call Congress) of a message  I just received from Erik Erickson of RedState.
Today Barack Obama is going to announce that the terrorist mastermind of September 11th, Khalid Sheikh Mohammed, will be sent to New York City for a criminal trial in a civilian court.
In that trial, the terrorist will get all the rights afforded an American citizen in a criminal trial, including the right to a fair trial, the right to a taxpayer funded attorney, the right to review all the evidence against him, potentially including classified intelligence matters, the right to exclude evidence against him including, potentially, any confession obtained through enhanced interrogation techniques, etc.
At best, this will be a show trial fit not for the American Republic, but a third world kleptocratic totalitarian regime. At worse, Khalid Sheikh Mohammed will gain access to classified material he can then leak to other terrorists while New York yet again becomes a target for terrorists. We have already had occasions in this country where terrorists’ sympathetic lawyers have conveyed information, orders, and plans to other terrorists.
I am shocked – shocked! – to find that, right here in the United States of America, the Constitution of the United States of America is being respected. Surely no such thing could have happened were George W. Bush still in the White House.
A trial in an American courtroom under American legal principles is, indeed, identical to a show trial appropriate to a third world kleptocratic totalitarian regime. I suppose we couldn’t have expected anything better after the election of Barack Hussein Obama. Â And now that our krypto-Muslim President is imposing on us such principles of sharia as a speedy and public trial, we can only guess what further horrors lie in wait. Â Freedom of speech? Â Freedom of the press? Â Freedom of religion? Â Habeas corpus? Â Respect for reason and science?
Truly, the Republic teeters on the brink, and Western civilization is at risk.
At salon.com, Glenn Greenwald, coming from the left, also, like Erickson, sees it as a show trial. This is because, he writes, Obama is giving genuine trials only to defendants whom he knows he can convict, and is trying other defendants before military commissions or keeping them imprisoned with no trial at all.
Awesome….
Hmmm… So we're going to give them a fair trial (well…) before we execute them. Novel concept, that.
Be careful what you ask for. No Southern District judge is going to Lance Ito this one.
Do you doubt that terrorist cases such as this one will feature procedural innovations that you will not like? And that those features will trickle down to other criminal cases?
"Do you doubt that terrorist cases such as this one will feature procedural innovations that you will not like? And that those features will trickle down to other criminal cases?"
You mean like "Brady" or "Miranda" trickled down to other cases? Do you really think a federal district judge will have the last say on any procedural "innovations," which are utterly speculative, arising from these trials?
Talk about hyperventilating . . .
Erikson would scarcely avoid the dilemma, if there is one, just by taking KSM outside of the criminal courts. It's true that doing so would ensure that the "show trial fit not for the American Republic, but a third world kleptocratic totalitarian regime" wouldn’t happen in the criminal court system, but that's hardly his primary concern. If a process outside the criminal courts were somehow less of a show trial, more fit for the American Republic, less like a third world kleptocratic totalitarian regime, then he hasn't escaped the dilemma. If there was an argument to be made, it didn’t survive translation into Erickson’s voice.
DavidTX-
I can guarantee that the court will not call them innovations. Rather, you're going to see a lot of stuff come in that would have otherwise been excluded by the exclusionary rule or hearsay rules that's going to come in.
The problem with Constitutionalizing criminal procedure that the Warren Court did was that the exceptions get Constitutionalized too. Judges are human beings – when confronted with overwhelming indicia of guilt, the courts are reluctant to grant relief to the defendant, and thus, exceptions or other doctrines are created to uphold convictions, if the other choice is letting him free or even a trial de novo. Those exceptions then erode the protections for other defendants. That's the saying, "Hard cases make bad law" in operation.
I don't think that the district court judge will have the last word, of course, this is going to end up in the Supreme Court and everything will then have the imprimatur of the Supreme Court for the future.
Here's my prediction: KSM will be convicted of some enormous number of crimes, and will receive some whopping number of death sentences and eons of prison terms. The appeals court will reverse some small number of convictions or sentences without any substantive effect on the fact that KSM is headed for the needle.
I really don't get your argument, Horseball. Are you saying that we need to set aside a class of criminal charges that are so heinous that to afford those so charged due process of law will threaten due process in general? We have to burn the village in order to save it?
Actually, I am with Greenwald on this one. Giving KSM a trial according to Constitutional principles is great, but carefully selecting only those cases in which we are guaranteed a victory does seem like a show trial. There should be some principle by which we try some cases in US Courts, and others in Military tribunals other than "we are more sure to like the outcome this way".
Mark,
Can we be so shocked that some people are not happy about essentially granting KSM rights as a United States citizen? How controversial is it to think that non-citizens should be treated differently than American citizens? The United States Constitution is for citizens of the United States. We *should* give everyone these rights, but legally we're not obligated to. Do you disagree? If not, then Erickson's main point isn't so easy to ridicule. Disagree with, sure.
When non-citizens commit crimes in the United States, we usually let their native countries deal with them. Right now, the United States doesn't have a good way to deal with foreign nationals whose native countries refuse to take control of them. We need a way to handle this problem.
And the number of people on the right who think President Obama is actually a Muslim probably rivals the number of people who genuinely believed President Bush and Vice President Cheney had something to do with the 9/11 attacks. The sarcasm probably isn't necessary, unless you're trying to channel Paul Krugman.
-TC
"Can we be so shocked that some people are not happy about essentially granting KSM rights as a United States citizen? How controversial is it to think that non-citizens should be treated differently than American citizens? The United States Constitution is for citizens of the United States. We *should* give everyone these rights, but legally we’re not obligated to"
I'm fairly certain that the criminal protections outlined in the Constitution apply to "persons," not "citizens." I'm also pretty sure that the courts have held that to be true repeatedly.
"When non-citizens commit crimes in the United States, we usually let their native countries deal with them"
I . . . don't think this is true? Wasn't there a case just in the last several years in which two Mexican citizens were executed in Texas, and there had been some controversy because we didn't allow them to contact their embassy or somesuch?
Krypto-Muslim President indeed, but remember, he isn't JUST a muslim. From the Reverand Wright episode, we ALSO know he is a racist black christian. Only in America is the lay public sophisticated enough to accept both of the above truths simultaneously. I'm sure if we lived somewhere else some simpleton might imply a contradiction is afoot.
I think Phil is right.
Those exceptions then erode the protections for other defendants
What kind of protections are you referring to? Constitutional (or constitutionalized) protections, or something else?
K, I'm a little confused by your post. In what way is Phil right? And I think what Horseball is saying in that quote about exceptions eroding protections for other defendants is that we can preserve due process only by selectively denying due process. We mustn’t be so damn neutrally principled in applying neutral principles, I guess.
Never mind. Phil is right. I'm tired and I've had several Scotches. But I stand by my criticism of Horseball's horse hockey.
It sounds as if they are being charged in New York with the attack on the Twin Towers. But are they being charged with the attack on the Pentagon? If for some reason Holder is wrong and something goes askew at trial and they are acquitted, then there is the Pentagon to fall back on with some other kind of tribunal; failing that, Flight 93 is a separate crime and there would be no problem with double jeopardy.
Is this far fetched? Could there be a backup charge that will bring the death penalty if that does not happen in New York?
Phil,
The Constitution may refer to "persons" and "the people," but that doesn't mean anyone in the world.
Maybe a better way to figure this out is to ask who the Constitution has jurisdiction over. Definitely our citizens. But citizens of other countries? Probably not.
The issue gets more complicated when non-citizens intend not just to murder as many people as possible, but to destroy our nation. KSM participated in 9/11 and the 93 bombings of the World Trade Center. I don't think there is any doubt about his intentions.
And I'd like to see some information on the Mexican citizens. I may be incorrect about what we usually do with other countries' citizens, but I have a hard time believing we didn't allow them to contact their embassy for the years they were being held before execution.
Anyone who commits a crime in the United States can be tried and punished under American law. As criminal defendants, foreigners have all the rights of U.S. citizens. No one, citizen or not, can be deprived of life, liberty, or property without due process of law. Everyone, citizen or not, is entitled to a speedy and public trial, to be tried by an impartial jury, to be assisted by counsel, to confront his accuser, and to be free of cruel and unusual punishment.
I am not very old, but I am old enough to remember living in a country where all that went without saying. And I remember how proud I was to be a citizen of that country.
As to the Greenwald-Erickson complaint, I call bullsh*t. There's nothing "show-trialish" about trying only those against whom there is sufficient admissible evidence to secure a conviction. Indeed, it is a basic ethical obligation of a prosecutor not to bring a case that cannot be won, no matter how guilty the prosecutor may believe the defendant to be.
But people who have committed no crime, or no crime of which the guilt can be brought home to them beyond reasonable doubt within the rules of evidence, may nonetheless be fighters for entities – such as al-Qaeda – that are at war with the United States. A captured enemy fighter can be held until the war is over: not as a criminal convicted of a crime, but simply as war captives.
[Prisoners of War – members of uniformed military units of states that have signed the Geneva Conventions – have rights under international law not to be treated as criminals are treated; precisely which of those rights attach to fighters for outfits such as al-Qaeda is an open question. They certainly have the right not to be tortured, or rather their captors have a binding obligation not to torture them.]
Since holding a captured fighter does not depend on finding him guilty of a crime, the "due process" for doing so is not the same as a criminal trial. In the case of someone not captured in uniform, on the battlefield, bearing arms, there may be a question about whether he is indeed a fighter: as opposed, for example, to a peaceful Afghan villager whose cousin narked him out for spite or cash. When that question is raised, there must be some sort of process to decide it, but since that process isn't a criminal trial not all of the rights of a criminal defendant apply: for example, the right to a jury trial.
So I don't understand why anyone has a complaint when the Obama Administration decides to try murderers as criminals and hold captured warriors as prisoners.
Very interesting point, Mark. It seems to me that the previous administration, while certainly owed the allowance that what they were dealing with was in many ways unprecedented, made a royal mockery of justice – infusing it as they did with cynical political manipulation, primal revenge fantasies, and inhumane policy calculations more fitting of television plots than a sober view of reality.
Prof. Kleiman's comment is entirely correct, which is why I am doubtful that putting KSM on a criminal trial in an ordinary US District Court is the right thing to do, not only as anti-terrorism policy but also for the effects that such trials will have on the generally applicable criminal law and criminal procedure law. Due to the extraordinary pressure to convict him, there is absolutely no chance that the court system will let KSM free – and for good reason as I, for one, am absolutely certain that he's substantively guilty of at least one crime that merits the death penalty (and I'd like to meet the person who has even a moment's doubt on the question). I am also sure that whoever the judge is (as well as any appellate judge) will also share this belief in his or her private judgment, alongside the judge's no doubt good faith efforts to uphold the procedural law.
If by some unforseen fluke any court — trial or appellate — sets KSM free or gives him lenient treatment you can be sure that the independence of the judiciary will come under more of a threat than it has since the New Deal — remember "the switch in time that saved the nine." The problem is that if the matter goes to trial, there are going to be an enormous number of niggling problems with the evidence that the government will want to present, and various exceptions or rules will be stretched to bring the evidence in. As I said above, the judges will not need be cynical in their rulings – they will undoubtedly be convinced of KSM's guilt, and if you do not think that the judge's private view of substantive liability colors procedural rulings, I've got a bridge to sell you.
One problem is that it is far from evident that prosecuting a crime in the United States in our domestic courts is the best option here. We didn't do that with Japanese or German war criminals. They didn't bring the prosecutions against people in Rwanda or the former Yugoslavia in anyone's domestic criminal courts. Perhaps we set a bad precedent by doing so with the original WTC bombers.
What will be clear in retrospect is that we ought to have some special venue to try these cases, with special rules. The bill of rights only fully applies to the US Government dealing with its own citizens within its own borders. For example, my recollection is that non-citizen detainees in INS detention centers don't quite have the full compliment of rights that inmates in jails or prisons do. Other examples include that the military can ban abortions in overseas military bases, but not within the US; that the government can ban people from entering much more easily than deporting them (as what happened when the Blind Sheikh was accidentally admitted into the country), and so on.
The bill of rights is not the minimum standard of decency, nor is it like some sort of corporate charter rendering every contrary action ultra vires. It's a compact embodied in positive law between a particular people and its government — and KSM is not a party to that compact. We certainly recognize criminal convictions and other types of judicial determinations from other jurisdictions that do not follow the bill of rights. So, I don't think that the only route to a just and fair adjudication that would be accepted as legitimate is a criminal trial fully subject to the bill of rights, federal rules of evidence, federal rules of criminal procedure, and so on.
The United States, having waterboarded KSM 183 times and held him for years without a trial, lacks the moral standing to try him. We cannot try people like him while we continue to allow Bush and his henchmen to escape justice. We should release KSM or turn him and Bush over to the Hague to sort things out.
Henry,
We should release KSM? Really? He conspired to commit multiple terrorist attacks in the United States and elsewhere. His actions directly led to thousands of people dying.
Another question: Is moral standing a prerequisite for trying someone like KSM? We could be morally bankrupt, yet still try him for the right reasons.
Tom,
OK, not really; I was expressing frustration with the hypocrisy of the United States. Bush's actions directly led to dozens of people being tortured to death, and Congress and Obama are letting him get away with it. I stand by my second proposal, however, that an international tribunal try both KSM and Bush. Moral standing is not a legal prerequisite for trying someone like KSM, but I wasn't making a legal point.
It seems to me that (assuming KSM is found competent to stand trial — which is a pretty low standard under the current supremes) there are two things that can happen simultaneously. First, he goes to trial and the oodles of non-tainted evidence convicts him. Second, his lawyers should be able to sue for damages for the tortious/criminal acts performed on him.