Rudy Giuliani can spill a lot of poison in a short time. Today he said on a Sunday TV talk show that Attorney General Eric Holder's announcement that the U.S. would try the alleged 9/11 mastermind in federal court in New York is an instance of:
“Barack Obama deciding we’re not at war with terrorists any more....I’m concerned that we no longer believe we’re at war with Islamic terrorists when they’re at war with us” He added that the administration has been hesitant to label the Nov. 5 deadly shooting of 12 soldiers and a civilian at Fort Hood, Tex., as an act of terrorism, noting that the suspect, Nidal Malik Hasan, had printed a personal business card that used an abbreviation describing himself as a “Soldier of Allah.” “The administration has been slow to come to the conclusion that Hasan is an Islamic terrorist” he said on “This Week”, according to the New York Times.
How quickly do they forget that 9/11 happened on their watch, that it was George W. Bush who slept when he got the memo headlined "Bin Laden determined to strike U.S." Barack Obama, who on Monday paid powerful personal tribute to the victims at Ft. Hood (see post below) is on Sunday slandered. Par for the course for Rudy Giuliani to use tragedy and ethnic code as a partisan tool.
There will be much ink spilled on these upcoming trials. So let's begin with the basics. The United States has a choice. It can try the guerillas it has arrested before a military commission or an Article III civilian criminal court - the United States District Court for the Southern District of Manhattan. The prosecution is burdened by the legacy of those who drove us to war in Iraq on grounds proven false, by Abu Ghraib and the images of torture at the hands of American soldiers. Khalid Shaikh Mohammed, the most prominent of those we will now try for murder, has been tortured: 183 times on the notorious waterboard.
How shall we demonstrate to the world that the man we tortured and seek to execute is the right man, the actual planner of the 9/11 attacks, rather than a fantasist who seeks credit for a crime he did not commit? In a closed military tribunal? Or by trial in public, with the protections that our laws and constitution afford? The Justice Department has commendably chosen the latter.
“Barack Obama deciding we’re not at war with terrorists any more....I’m concerned that we no longer believe we’re at war with Islamic terrorists when they’re at war with us” He added that the administration has been hesitant to label the Nov. 5 deadly shooting of 12 soldiers and a civilian at Fort Hood, Tex., as an act of terrorism, noting that the suspect, Nidal Malik Hasan, had printed a personal business card that used an abbreviation describing himself as a “Soldier of Allah.” “The administration has been slow to come to the conclusion that Hasan is an Islamic terrorist” he said on “This Week”, according to the New York Times.
How quickly do they forget that 9/11 happened on their watch, that it was George W. Bush who slept when he got the memo headlined "Bin Laden determined to strike U.S." Barack Obama, who on Monday paid powerful personal tribute to the victims at Ft. Hood (see post below) is on Sunday slandered. Par for the course for Rudy Giuliani to use tragedy and ethnic code as a partisan tool.
There will be much ink spilled on these upcoming trials. So let's begin with the basics. The United States has a choice. It can try the guerillas it has arrested before a military commission or an Article III civilian criminal court - the United States District Court for the Southern District of Manhattan. The prosecution is burdened by the legacy of those who drove us to war in Iraq on grounds proven false, by Abu Ghraib and the images of torture at the hands of American soldiers. Khalid Shaikh Mohammed, the most prominent of those we will now try for murder, has been tortured: 183 times on the notorious waterboard.
How shall we demonstrate to the world that the man we tortured and seek to execute is the right man, the actual planner of the 9/11 attacks, rather than a fantasist who seeks credit for a crime he did not commit? In a closed military tribunal? Or by trial in public, with the protections that our laws and constitution afford? The Justice Department has commendably chosen the latter.
So let us look at the framework that our Constitution establishes in the 5th and 6th Amendments. The script they write is what inspired my classmate (HC '67) Rep. James Moran (D Va.) to say, with characteristically loose lip, that opposing the trials in New York is "unamerican":
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Well, I'm not sure, that to put Mohammed to the civilian court was the right decision. Because I doubt that this man is innocent - according to some unclassified report I read, a lot of evidence was found among his personal belongings. So perhaps the last thing missing was his confession. Of course getting it by torturing during the interrogation was perhaps not the best way and this evidence will now be facing the possible inadmissibility, which may also result in Mohammed's acquittal. Elli
ReplyDeleteI heard on a radio talk show that the Obama's administration's decision to try Mohammed in a NY court was ridiculous for two reasons: (1) Mohammed could be sentenced to death in a military court; and (2) he was not read his Miranda rights, so having him in a US court could mean that much evidence against him might not be admissible. We could be taking a big risk regarding our national security should we allow this man's fate to be decided by a jury.
ReplyDeleteMohammed can be sentenced to death under the Federal Death Penalty Act, 18 U.S.C. §§ 3591-3598.
ReplyDeleteTestimony derived via torture should be barred. The Miranda rule argument will be interesting. It does not apply outside the U.S. But what about Guantanamo.
I would bet that Mohammed bragged about his plans. It is fantasizing a role larger than he in fact had that is the likely risk to believability. - George Conk
As a fellow blogger via FordhamNotes, I wanted to let you know that I enjoyed your post on the KSM decision; I have also blogged on this very topic, with a sentiment that is different from (but not necessarily in disagreement with) your own:
ReplyDeletewww.michaelbaur.com/myblog/
Professor -
ReplyDeleteWhile nobody says that trying KSM in the SDNY is unconstitutional, it is also tru that trying him in military commisions is completely constitutional as well; this post implies that trying him in the military commissions is unconstitutional, a fact unsupported by any of the Sup. Ct. decisions.
And you neglect to address the impact this will have on our national security, as we are forced to reveal secret intelligence for all the world to see, including Al Quada.
Finally, there is no way that KSM can be convicted under general rules of evidence and procedure. Therefore, I ask: 1) do you wish to try him in the SDNY under altered rules and procedures - which may well be unconstitutional for a civilian court? Or do you insist that he be tried under normal rules of procedure and evidence, in which case any competent lawyer should be able to get him acquitted instantly, and allow him to walk free, with the blood of over three thousand innocent Americans on his hands?
Reuvain Borchardt
I don't suggest that trying Mohammed, et al in military courts would be unconstitutional. I simply say that the United States has a choice.
ReplyDeleteI do think that torture is illegal. Evidence derived that way will probably not be offered. Among other reasons, for its inherent unreliability.
Nothing compels courts to disclose vital secrets. Trials of criminal organizations in many jurisdictions have confronted such problems. It will be interesting to see how this develops. - GWC
But the problem is that if you do not disclose vital secrets, you may not be able to get a conviction, for the evidence in this trial will necessarily involve important intelligence.
ReplyDeleteConsidering that even you agree that trying KSM in military commissions is constitutional, I cannot possible understand why you would choose to try him in a venue that would compel the disclosure of intelligence secrets.
William McGurn had a great editorial in today's wsj (11/17/09) entitled "Holder's al Quada Incentive Plan"; you can easily google it, and I highly recommend it. (I tried posting the link here but I am unable to).
RB
RB -
ReplyDeleteWe want to bring them to justice and we want to show the world that we have proven them guilty before we execute them or jail them for life.
And we will do it without doing anything foolish or self-destructive. Paper accepts anything written on it and the paper the WSJ uses is even more absorbent than most.
- GWC
The courts and the U.S. Department of Justice have a lot of experience with prosecuting terrorism and criminal gang cases. Human Rights First has invested a lot of effort into this question.
ReplyDeleteThe executive summary of a key report can be found here: http://www.humanrightsfirst.info/pdf/080522-USLS-pj-exec-sum.pdf"