Former Bush DOJ Officials Back Holder on Trial of 9/11 Suspects

By Jeralyn, Section Terror Trials
Posted on Fri Nov 20, 2009 at 08:26:00 AM EST
Tags: Khalid Sheikh Mohammed, Eric Holder (all tags)

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James Comey and Jack Goldsmith, high-ranking Department of Justice officials under Bush, have an op-ed in the Washington Post defending Attorney General Eric Holder's decision to prosecute Khalid Sheikh Mohammed and four other detainees in federal criminal court instead of a military commission proceeding. The conclusion is fine:

But Holder's critics do not help their case by understating the criminal justice system's capacities, overstating the military system's virtues and bumper-stickering a reasonable decision.

In reaching that correct assessment, however, there's a few statements I take issue with. They posit that Holder made the decision to keep the U.S.S. Cole detainees in a military proceeding not for the reasons he said (that the attack happened outside the U.S.) but because the case against them is weak and the chance of conviction is greater in a military commission trial. In other words, Holder forum-shopped (as, they say, Bush's DOJ did before him) and there's nothing wrong with that. I think when it's done hoping to skirt the requirement of proof beyond a reasonable doubt because you know you can't meet it, there's definitely something wrong with it.
[More...]

As to military commissions, they write that despite "relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them," military commissions only offer the Government "a "marginal advantage." Sorry, but those aren't the only disparities and even the revised commission procedures provide a big advantage towards conviction over a federal criminal trial -- and an unfair one.

They also predict Obama will continue with indefinite detentions of the Guantanamo detainees not charged with crimes, and they seem to have no problem with it:

It is also likely that the Justice Department will decide that many other terrorists at Guantanamo Bay will not be tried in civilian or military court but, rather, will be held under a military detention rationale more suitable to the circumstances of their cases.

"More suitable?" How is continued military detention ever suitable for someone who has never been charged with a crime? Or for someone a court has determined was unfairly declared by the Bush Administration to be an enemy combatant? Are they suggesting the Government will only indefinitely hold uncharged detainees who are guilty of something terrible, but we just couldn't prove it without their inadmissible statements made under torture? I don't believe for a minute those are the only ones who will be indefinitely detained, and I don't like giving the Justice Department or the military the sole discretion to make the call. "He's guilty and dangerous, we just can't prove it, so we're not going to try" should never be a license to imprison someone forever.

There's also a statement I find particularly grating, especially coming from lawyers:

The potential procedural advantages of military commission trials are relatively unimportant with obviously guilty defendants such as Mohammed...

"Obviously guilty?" Did I miss the trial?

To sum up the authors' views: the procedural advantages of military commissions are only "potential" not real ones, and if such advantages do exist, they are "relatively unimportant," but KSM is "obviously guilty."

At least they got the ending right, so I'll reprint it again:

Holder's critics do not help their case by understating the criminal justice system's capacities, overstating the military system's virtues and bumper-stickering a reasonable decision.

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Former Bush DOJ Officials Back Holder on Trial of 9/11 Suspects | 28 comments (28 topical)

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Obama weighs in. (5.00 / 4) (#2)
by lentinel on Fri Nov 20, 2009 at 05:02:04 AM EST

There's also a statement I find particularly grating, especially coming from lawyers:
The potential procedural advantages of military commission trials are relatively unimportant with obviously guilty defendants such as Mohammed...
"Obviously guilty?" Did I miss the trial?

President Obama, also a lawyer, has also announced that professed Sept. 11 mastermind Khalid Sheikh Mohammed will be convicted and executed...

Obama went on to say that those offended by the legal privileges given to Mohammed ... won't find it "offensive at all when he's convicted and when the death penalty is applied to him."

In fairness, Obama went on to say that he hadn't said what he had just said, and that when he said that Mohammed would be convicted and executed he wasn't prejudging anything.....

Do we laugh or cry?

As BTD has repeatedly pointed out (5.00 / 0) (#8)
by gyrfalcon on Fri Nov 20, 2009 at 10:58:16 AM EST

KSM loudly and emphatically not just confessed but trumpeted his guilt in open court.

Just sayin'.


KSM confesses... (none / 0) (#20)
by lentinel on Fri Nov 20, 2009 at 05:11:06 PM EST

There is room for doubt about the accuracy of his confession. And it wasn't in "open court" - it was in a secret court in Gitmo.

Here's an article in Time Magazine as an example of the thinking of those who think that KSM might be mentally unstable and prone to exaggeration:

TIME

Another thing that I have read is that the confession was obtained after Mohammed was incarcerated in Guantanamo for three years.

For another take on the many confessions of KSM, see this link:

The Young Turks- Cenk Uygur and Ben Mankiewicz.

What I am suggesting is that we will get to see the evidence when a trial is held. Then we can make an informed opinion.
But government officials, in my opinion, have no business announcing their verdict and sentence on a defendant before the trial has even taken place. And when a lawyer does it - especially the President - it smacks of pandering and posturing. It makes me queasy. It doesn't feel right. It doesn't feel American imo.


: Well, I can't disagree with that (5.00 / 1) (#28)
by gyrfalcon on Fri Nov 20, 2009 at 11:05:16 PM EST

I'm the one who argued on another thread, after all, that my mistrust of the government on this whole thing is such that I would have no problem being a juror on this trial.
But I was honestly more bothered by Obama's pronouncement on the Henry Louis Gates incident than I am by this one. Though you're right, he shouldn't do it at all under any circumstances-- if he weren't pandering to make political points.

Rights to a speedy trial? (none / 0) (#1)
by Ben Masel on Fri Nov 20, 2009 at 01:35:19 AM EST

Do those heraded to the Federal Courts stand a chance of diksmissal for failure to bring timely prosecutions?

: Peter G replied to a comment of mine (none / 0) (#16)
by oculus on Fri Nov 20, 2009 at 12:31:23 PM EST

some time ago answering that question. Apparently in federal court criminal cases there is no statutory time limit for bringing an accused to trial. Of course, there is the Sixth Amendment to the U.S. Constitution.

It's One Thing (none / 0) (#3)
by The Maven on Fri Nov 20, 2009 at 08:44:07 AM EST

to engage in forum-shopping, if that is to mean trying to select a more favorable jurisdiction among courts at roughly the same level. It's entirely another -- and one I would hope we would all agree is unacceptable -- when it means selecting among proceedings at which the defendants have vastly different rights and for which radically lesser thresholds are required in order to obtain a conviction.

As many observers have noted, this system Holder has announced (undoubtedly with Obama's explicit blessing, as he would otherwise have been publicly rebuked long ago) is very clearly designed such that the detainees will only be accorded a level of "justice" that will be guaranteed to result in a guilty verdict. The government will never permit a defendant to be tried before a court, commission, or whatever, if there is any doubt that convictions will result. (Thus, it's fairly easy, albeit disingenuous, for Obama to sound so assured that KSM et al. will be found guilty.) This type of multi-tiered setup, complete with the prospect of indefinite detention without prospect of trial for some and assurances of continued detention post-trial, regardless of the outcome, for others, is abhorrent in a democracy and is part of the very essence of tyrrany -- i.e., a government of men and not of laws.

To this administration, just like the one before it, Equal Justice Under Law seems to be little more than four random words with no real meaning.

You know (none / 0) (#4)
by Steve M on Fri Nov 20, 2009 at 09:53:41 AM EST

we gave the Nazis a fair trial at Nuremberg but I don't think people went around pretending like Goering and Hess were innocent until proven guilty.

I am glad we are finally giving these guys some regular process, even though I agree with the criticism that we are forum-shopping in a serious way. But if the price of trying people like KSM in civilian courts is that we expect political leaders to suddenly start acting like they're all utterly innocent unless and until a jury says otherwise, then you know what, maybe I'm going to just line up with the Lindsey Grahams of the world because I find that preposterous.

The case is styled The United States of America v. Khalid Sheikh Mohammed. The United States is the sovereign bringing these terrorism charges in the first place. I do not expect the head of state to be agnostic about whether the guy is guilty! The presumption of innocence applies TO THE TRIAL ITSELF.

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