White House weighs options for Sept. 11 trial

[AbnJack]

http://news.yahoo.com/s/ap/20100214/...l0ZWhvdXNld2U-

WASHINGTON – The Obama administration appears increasingly unsure what to do with professed Sept. 11 mastermind Khalid Sheikh Mohammed after officials indicated they are reconsidering not just where he should go on trial, but whether he should face civilian or military justice.

Both Attorney General Eric Holder and White House spokesman Robert Gibbs did not rule out a military trial when asked Friday about the Obama administration's options.

Trying Mohammed in military court would mark a further political retreat from Holder's announcement last year that Mohammed and the four other Sept. 11 suspects now held at the U.S. military prison at Guantanamo Bay, Cuba, would be tried in federal court in New York.

The Obama administration is trying to head off a possible vote in the Senate that could stop any terror suspects currently held at Guantanamo from being brought to the United States to face a civilian trial. Sen. Lindsey Graham, R-S.C., is offering such legislation, after losing a vote last year on the issue.

"These al-Qaida terrorists are not common criminals," Graham said Saturday in the Republicans' weekly radio and Internet address. "A civilian trial of hard-core terrorists is unnecessarily dangerous and creates more problems than it solves."

At stake is the public perception of the administration's handling of national security, already shaken last year by strong congressional opposition to transferring any Guantanamo detainees to American soil. A Hill defeat over the trial issue could embolden the GOP minority to raise national security concerns in the midterm elections later this year.

"Military tribunals are the best way to render justice, win this war and protect our nation from a vicious enemy," said Graham.

The prospect of such a vote could test of how many moderate Democrats have abandoned Obama on the issue.

White House officials said Friday that Obama and his top advisers will play a direct role in ultimately deciding how to prosecute Mohammed. The administration initially decided to try the five terror defendants in New York but have since appeared to backtrack.

"Obviously there are efforts on Capitol Hill through legislation to restrict either the type of or the venue of a trial for Khalid Sheikh Mohammed and his co-conspirators," Gibbs said. "That, by definition, involves the White House and ultimately the president."

"So, since this effort has moved from strictly a Justice Department decision to something that's in the legislative arena, the White House — and by definition the president — are involved."

As a result of Holder's decision to seek a civilian prosecution, Bush-era military charges that had been pending against the five suspects were dismissed last month. Those military charges could now be revived.
The administration is reconsidering Holder's plan to put the five men on trial in a federal court in Manhattan, after local officials there balked at security and logistics complications.

The White House insisted it is sensitive to their concerns.

"We're going to take into account security and logistical concerns that those individuals now have," Gibbs said. "The cost of the trial, obviously, is one thing."

Rep. Peter King, R-N.Y., who has repeatedly criticized Holder's decision to try Mohammed in New York, said the White House has bungled the issue from the start.

"What it shows is there was no preparation, no advance work done by the administration. It's one of the most irresponsible decisions anyone has ever made," said King.

Holder said he still expects Mohammed to be tried in a federal civilian court, but he conceded it's possible that won't happen.

"At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it's done as transparently as possible and with adherence to all the rules," Holder told The Washington Post. "If we do that, I'm not sure the location or even the forum is as important as what the world sees in that proceeding."

The administration has been on the defensive about its record on terrorism since a Nigerian man allegedly tried to blow up an airliner landing in Detroit on Christmas. The suspect faces charges in federal court, but Republicans say the Democratic administration should treat such suspects not as criminals but war criminals.

[AbnJack]

They are completely lost. Re-invented the wheel and discovered square wheels don't roll, will only go back to the round wheel if they can't find a triangular one to try first. craziness

[Zimmy]

I'm fence sitting this one. I understand that OPSEC and PERSEC of the various operators/tactics involved in capture in a civilian jury trial. But I see these trials as non military also.

The demand for these criminals to have a special court proceding seems outside the rule of law. It reminds me of the government attitude that the lay man on the street isn't smart enough to do anything right. The two administrations involved both were/are making sure they get a poll approved result.

The argument that the terrorists won't find a fair jury in the US is bullshit. If you don't want a lynch mob for a jury, don't commit heinous hanging offences.

I'd be proud to serve on the jury. Even if I became a target of retaliation by the raghead bastard's Muslim buddies. It's the responsabilty of citizenship.

[AbnJack]

I just don't see how it's physically possible to for troops to capture someone in Iraq or Afghanistan and then try them in US courts. The thing that pisses me off the most is that this administration is doing things for the purpose of doing different than Bush. How many times do they make a change then decide "oops that don't work" then spend some time "thinking about it".
The campaign mantra of "change you can believe in" seems to have become the policy of "change for the sake of change". Obama has made a habit of demanding changes without offering alternatives.

[Ops NCO]

I'm fence sitting this one. I understand that OPSEC and PERSEC of the various operators/tactics involved in capture in a civilian jury trial. But I see these trials as non military also.

The demand for these criminals to have a special court proceding seems outside the rule of law. It reminds me of the government attitude that the lay man on the street isn't smart enough to do anything right. The two administrations involved both were/are making sure they get a poll approved result.

The argument that the terrorists won't find a fair jury in the US is bullshit. If you don't want a lynch mob for a jury, don't commit heinous hanging offences.

I'd be proud to serve on the jury. Even if I became a target of retaliation by the raghead bastard's Muslim buddies. It's the responsabilty of citizenship.

My feeling is, if the accused terrorist is a US citizen, then give them a civilian trial (to preserve their rights as a US citizen). If they're not, they get a military tribunal.



The only thing I'm still pondering is...once they're found guilty, should it be 5.56 or 7.62 for the firing squad?

[Zimmy]

The only thing I'm still pondering is...once they're found guilty, should it be 5.56 or 7.62 for the firing squad?

Rope, New, 1 each.

Bill the family for it.

[PMMurray]

I would think that it would be in the best interests of the U.S. to try Mohammed in Federal court on criminal charges rather than enter into the debate about his status as a combatant, terrorist or war criminal. Based on what Mohammed has already confessed to, and other evidence that I can imagine could be presented, the ability convict him within the context of Federal criminal law and its procedural rules seems highly likely. The possibility that he will receive one or more death sentences would seem very high. Putting emotion and politics aside, the Federal prosecution path seems to be one that maintains the fairness and openness of the proceedings, and requires that Mohammed's defense and prosecution follow the same standards as that of any criminal defendant. That approach avoids a lot of debate about who has jurisdiction, what laws have been violated, and how fair any proceedings would be.

Where the Federal trial would occur is initially the choice of the executive branch. Normally, the trial would occur in the same jurisdiction as that of the offense. In the WTC 9/11 situation, the U.S. Attorney for the Southern District of New York would be making that choice as a result of his criminal filings. Of course, given the politics and magnitude of the offense, the Department of Justice is effectively being told what locations to consider by the POTUS. Regardless of where the charges get filed, defense counsel will likely seek a change of venue for many reasons. At the end of the day, I would hope that the choice becomes a balance among the issues of finding a jury that can be impaneled, allowing access to counsel, witnesses and evidence that is not prohibitive and biased, and providing day-to-day operational security.

For some people, providing day-to-day operational security seems to be a difficult issue. Its importance is certainly high, but the U.S. Marshalls have done this quite effectively for decades. I'm sure that other agencies will team up with them as they have in the past to heighten and intermesh security for not only the defendant, but the judge, jury, counsel and witnesses.

The broader concern of retaliatory terrorist attacks either within U.S. jurisdiction or aboard is real, but is not unique to the prosecution of Mohammed. Somehow, we have been able to provide justice in the past without becoming frozen or fixated on what might happen.

We have the mechanism and tools that have stood the test of time to provide just Federal trials. We do not need to invent something new, or go behind closed doors.

Now, let's say by some twist of fate that Mohammed is found innocent of all Federal charges. I'm sure that the State of New York will have filed state criminal charges, other Federal and state charges arising from other 9/11 acts would be filed, and perhaps other nations or the World Court will have filed for extradition. The only question that the U.S. Attorney may have is which of several detainer warrants to utilize to bring Mohammed to justice. That decision would likely be based on who has the strongest case and a death penalty for the charges they have filed.

[AbnJack]

Based on what Mohammed has already confessed to, and other evidence that I can imagine could be presented, the ability convict him within the context of Federal criminal law and its procedural rules seems highly likely.

How was all of that obtained? Bet a first year lawyer tears it up. Every single rule that protects evidence against the accused would have to be observed. The feds have already done this in federal courts with mixed results under Bush. How are soldiers supposed to press a war against combatants in the field and deliver them into a civilian court with all their "rights" intact as demanded by the court? From Afghan to Akron in time for a speedy trial before a jury of their peers? Insure the chain of custody of evidence, no questioning without a lawyer if so requested?....and definitely never under duress. I don't understand how or why it's necessary to welcome these guys into the fold of our Constitution while they are at war with us in an effort to destroy it. What will we have to do, change our system to the harm of our protections just to accommodate these fuckers? They are the enemies under the foreign category, they ain't members of the club, fuck em. Military tribunal or a camp for the duration.

[PMMurray]

AbnJack,

The issues and sentiments that you voice are part of the debate that has been going on for several years now. The events surrounding Mohammed are covered concisely at the web site, http://en.wikipedia.org/wiki/Khalid_Sheikh_Mohammed, and further at http://en.wikipedia.org/wiki/Combatant_Status_Review_Tribunal. I am not saying that the constitutional justice that we administer in the United States is easy, simple or without its own problems. But, it is an integral part of this country, and its performance appears to others to be living proof of America’s principles.

Regarding United States vs. Mohammed et al, this case should not be that difficult to win for the prosecution since the defendants in late 2008 told a military judge that they wanted to confess and plead guilty. Furthermore, the defendants appear quite willing to take responsibility for other terrorist attacks within United States and other countries. Issues of their mental competency to do this have been raised, but the defendants have seemed consistently to be sane. They are just following a different drummer.

These defendants want their ownership of their actions validated. In the process, they will no doubt be given a few opportunities to express their views and assert their righteousness. Then, they will very likely be found guilty and sentenced to death. The Federal system offers very few appeals even in capital cases. I can imagine that the defendants may decline all appeals and any clemency requests. At some time not much later, they will be executed at USP Terre Haute in Indiana.

You ask why we should afford these individuals the process and protections of our Federal criminal justice system. I would say that we should want the citizens of this nation and the world community to see that we believe in our principles of constitutional justice and the rule of law. We don’t just support those beliefs when it might be easy or convenient, but when they are applicable.

You raise the possibility that the defense counsel would derail the prosecution on several fronts. I would hope that the defense counsel would put forth all their best efforts to do just that. Whoever is counsel of these individuals should work as hard as possible to represent the interests of their clients. Whatever Federal justice hears the case should insist that the defendants being represented by competent and experienced counsel. In fact, Federal procedure mandates that an indigent defendant who is being prosecuted for a death penalty eligible crime be assigned two defense attorneys. One of which is experienced in capital cases. Now, if we look at the Federal prosecution team, we will see a team of highly talented and seasoned attorneys, investigators and experts, the ability to coordinate with the investigative, military and intelligence assets of many nations, and a large allotment of government funds. I’m betting that the government will meet its burden of proof, and will win several convictions. They only need to get one conviction that carries the death penalty for each defendant.

Finally, you comment that fighting a war affords limited or no opportunity or authority to conduct an investigation that you might expect of a Federal law enforcement agency. I agree. While few combatants or support units could perform those tasks, I would say that they do not need to have that training. Given the nature of the crimes with which defendants like this are charged, the evidence of their crimes is not likely to be found as part of their capture, and is very probably already in the right hands. If combatants encounter defendants like this, they may not even be able to identify them. Regardless of whether they are identified, I would think that the rules of engagement would determine how they are handled. My understanding is that most rules of engagement usually have some JAG review and approval. If you are on patrol and encounter someone that your command chain has been telling you about, I would bet that you are detaining and protecting the individual, and calling others to determine the next steps.

The dialogue that we are having is similar what is happening at the highest levels of government as well as in the homes and workplaces of many Americans.

[CharliePC]

You ask why we should afford these individuals the process and protections of our Federal criminal justice system. I would say that we should want the citizens of this nation and the world community to see that we believe in our principles of constitutional justice and the rule of law. We don’t just support those beliefs when it might be easy or convenient, but when they are applicable.

I want *the citizens of this nation and the world community* to see him marched straight from a military tribunal to a gallows. Personally, I want to see that f**ker swinging from the end of a rope…. but that’s just me.

His civilian trial will give him a platform, viewed world-wide, to put the US on trial. His attorney has admitted so plainly. The whole thing will end up being a huge recruiting tool for Al Qaeda and international Jihad.

Khalid S. Mohammed isn’t a citizen of the US and he wasn’t captured on US soil. He wasn’t arrested for stealing a car or robbing a liquor store- he planned a mass murder which was an act of war. There is no basis to *give* him the protections of the US Constitution.

We are fighting a war. The emphasis should not be on protecting the rights of the accused and adhering to American Jurisprudence. It’s not about them- it’s about the war. We need to extract every bit of actionable intelligence and “use them” in ways that shouldn’t be discussed here. If they end up sitting years or decades in a jail cell- well shit- they shouldn’t make war on the US.

Further, he and his ilk aren’t even eligible for the protections of the Geneva Convention. The Geneva Convention isn’t international law, it a treaty. Al Qaeda isn’t a signer, and, more importantly, they don’t adhere to its constraints. They purposely target civilians and they behead captured enemy combatants. Once every bit of intelligence/practical use is extracted from him, he should face a military tribunal and a noose.

On a practical note- all detainees are human beings- more or less. Each one should face a tribunal of some sort soon after being captured, to make a determination that there is “reason” to hold them. Afterwards- screw’em. If some Euro-weenie doesn’t like it, well, screw them too. They of all people have benefited most from American protection.

[Zimmy]

As a Texan, I'm quite confident in my peer's ability to send down a death sentence. If the trial needs gag orders, sequestering, records redacting, or some other new method to provide security let it be.

I say a trial. Not a fucking judge making some grandiose ruling from chambers. A trial to get the citizens of this country more involved in this conflict that channel surfing on the goddamned TV.

Am I soft on them? Fuck no. I'd just as soon there be a no-quarter ruling in the ROE for these fucks. But I see these captives languishing in jails wherever they end up as being against American process of law. Kill 'em or interrogate 'em then try them and kill them.

And I ain't no damn euroweenie.

[CharliePC]

A trial to get the citizens of this country more involved in this conflict that channel surfing on the goddamned TV.

I’ll agree with this portion- a civilian trial *will* get the citizens involved. They’ll continue wondering WTF were they thinking at the White House.

The Administrations intent to try KSM as a civilian has already produced positive results. It was a part of Scott Brown’s victory in Massachusetts. To quote Scott Brown,

In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.

http://www.politico.com/news/stories/0110/31758.html

[Gato Rojo]

Here's some food for thought:

Ruling by Judge William Young, US District Court.

Prior to sentencing, the Judge asked the defendant if he had anything to say. His response: After admitting his guilt to the court for the record, Reid also admitted his 'allegiance to Osama bin Laden, to Islam, and to the religion of Allah,' defiantly stating, 'I think I will not apologize for my actions,' and told the court 'I am at war with your country.'

Judge Young then delivered the statement quoted below:

January 30, 2003, United States vs. Reid.

Judge Young: 'Mr. Richard C. Reid, hearken now to the sentence the Court imposes upon you.

On counts 1, 5 and 6 the Court sentences you to life in prison in the custody of the United States Attorney General. On counts 2, 3, 4and 7, the Court sentences you to 20 years in prison on each count, the sentence on each count to run consecutively. (That's 80 years..)

On count 8 the Court sentences you to the mandatory 30 years again, to be served consecutively to the 80 years just imposed.. The Court imposes upon you for each of the eight counts a fine of $250,000 that's an aggregate fine of $2 million. The Court accepts the government's recommendation with respect to restitution and orders restitution in the amount of $298.17 to Andre Bousquet and $5,784 to American Airlines.

The Court imposes upon you an $800 special assessment. The Court imposes upon you five years supervised release simply because the law requires it.. But the life sentences are real life sentences so I need go no further.

This is the sentence that is provided for by our statutes. It is a fair and just sentence. It is a righteous sentence.

Now, let me explain this to you. We are not afraid of you or any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before. There is too much war talk here and I say that to everyone with the utmost respect. Here in this court, we deal with individuals as individuals and care for individuals as individuals. As human beings, we reach out for justice.

You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier, gives you far too much stature. Whether the officers of government do it or your attorney does it, or if you think you are a soldier, you are not----- you are a terrorist. And we do not negotiate with terrorists. We do not meet with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice.

So war talk is way out of line in this court. You are a big fellow. But you are not that big. You're no warrior. I've known warriors. You are a terrorist. A species of criminal that is guilty of multiple attempted murders. In a very real sense, State Trooper Santiago had it right when you first were taken off that plane and into custody and you wondered where the press and the TV crews were, and he said: 'You're no big deal.'

You are no big deal.

What your able counsel and what the equally able United States attorneys have grappled with and what I have as honestly as I know how tried to grapple with, is why you did something so horrific. What was it that led you here to this courtroom today?

I have listened respectfully to what you have to say. And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty and admit you are guilty of doing? And, I have an answer for you. It may not satisfy you, but as I search this entire record, it comes as close to understanding as I know.

It seems to me you hate the one thing that to us is most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not believe as we individually choose. Here, in this society, the very wind carries freedom. It carries it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are here in this beautiful courtroom, so that everyone can see, truly see, that justice is administered fairly, individually, and discretely. It is for freedom's sake that your lawyers are striving so vigorously on your behalf, have filed appeals, will go on in their representation of you before other judges.

We Americans are all about freedom. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties. Make no mistake though. It is yet true that we will bear any burden; pay any price, to preserve our freedoms. Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. The day after tomorrow, it will be forgotten, but this, however, will long endure.

Here in this courtroom and courtrooms all across America , the American people will gather to see that justice, individual justice, justice, not war, individual justice is in fact being done. The very President of the United States through his officers will have to come into courtrooms and lay out evidence on which specific matters can be judged and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice.

See that flag, Mr. Reid? That's the flag of the United States of America . That flag will fly there long after this is all forgotten. That flag stands for freedom. And it always will.

Mr. Custody Officer. Stand him down.

[PMMurray]

CharliePC and Zimmy,

Your responses to the thread characterize a lot of the division on this topic. Shortly, the U. S. government will communicate to all how it will handle those who fight against us. That decision will become an important component of our domestic and international policy for many years.
As the issues have evolved since 2001, the trend has been to move toward applying U.S. laws in the context of a Federal criminal trial. None of that means that we should proceed with any less intensity in any part of the Afghan war.
Almost certainly, Mohammed and his four co-defendants will be found guilty, given a death sentence and be executed. How we get to that end does say a lot about what America values. This is not the first time the United States has faced these choices, and often expediency has outweighed the more time-tested administration of justice. In the Afghan situation, how much protection and justice should we afford them?
Regarding the Geneva Convention, its applicability has been reviewed and tested several times in the current context. The current view based on U.S. Supreme Court rulings is that the provisions of the Convention do apply. My understanding is that DOD leadership has issued specific directives to ensure that the obligations under the Convention are known.
Definitely, we should extract as much actionable intelligence from anyone that we can, but how we do that reflects on our nation. Do the results justify the means? May be they do at times, but what is the standard to determine that?
Finally, these individuals or others representing will make compelling public statements. That is just a reality, and “gag” orders from a U.S. District Court judge are only as good as the ability to enforce them. The statements can easily be made beyond the reach of any Federal court.

[PMMurray]

That's a great story! It is indicative of how the Federal system handles criminal cases involving these kind of charges. Mr. Ried will spend the rest of his days in a Federal super max prison.