Mohammed Comes To The Mountain

I’m working late again this week, and have had no time to write. But reader JK has sent along a link to an informed and thoughtful post about the Obama administration’s decision to try Khalid Sheik Mohammed in the criminal court here in New York City. Here is an excerpt:

A new variety of warfare has emerged in which treatment as a traditional POW doesn’t apply and criminal law doesn’t work. Criminal law creates liabilities the United States doesn’t want to incur, and it is not geared to deal with a terrorist like Mohammed. U.S. criminal law assumes that capture is in the hands of law enforcement officials. Rights are prescribed and demanded, including having lawyers present and so forth. Such protections are practically and theoretically absurd in this case: Mohammed is not a soldier and he is not a suspected criminal presumed innocent until proven guilty. Law enforcement is not a practical counter to al Qaeda in Afghanistan and Pakistan. A nation cannot move from the rules of counterterrorism to an American courtroom; they are incompatible modes of operation. Nor can a nation use the code of criminal procedures against a terrorist organization operating transnationally. Instead, they must be stopped before they commit their action, and issuing search warrants and allowing attorneys present at questioning is not an option.

Therefore — and now we move to the political reality — it is difficult to imagine how the evidence accumulated against Mohammed could enter a courtroom. Ignoring the methods of questioning, which is a separate issue, how can one prove his guilt beyond a reasonable doubt without compromising sources and methods, and why should one? Mohammed was on a battlefield but not operating as a soldier. Imagine doing criminal forensics on a battlefield to prove the criminal liability of German commandos wearing American uniforms.

In our mind, there is a very real possibility that Mohammed could be found not guilty in a courtroom. The cases of O.J. Simpson and of Jewish Defense League head Rabbi Meir Kahane’s killer, El Sayyid Nosair — both found not guilty despite overwhelming evidence — come to mind. Juries do strange things, particularly amid what will be the greatest media circus imaginable in the media capital of the world.

But it may not be the jury that is the problem. A federal judge will have to ask the question of whether prejudicial publicity of such magnitude has occurred that Mohammed can’t receive a fair trial. (This is probably true.) Questions will be raised about whether he has received proper legal counsel, which undoubtedly he hasn’t. Issues about the chain of custody of evidence will be raised; given that he was held by troops and agents, and not by law enforcement, the chances of compromised evidence is likely. The issue of torture will, of course, also be raised but that really isn’t the main problem. How do you try a man under U.S. legal procedures who was captured in a third country by non-law enforcement personnel, and who has been in military custody for seven years?

There is a nontrivial possibility that he will be acquitted or have his case thrown out of court, which would be a foreign policy disaster for the United States. Some might view it as a sign of American adherence to the rule of law and be impressed, others might be convinced that Mohammed was not guilty in more than a legal sense and was held unjustly, and others might think the United States has bungled another matter.

The real problem here is international law, which does not address acts of war committed by non-state actors out of uniform. Or more precisely, it does, but leaves them deliberately in a state of legal limbo, with captors left free to deal with them as they wish. If the international legal community does not like the latter, it is time they did the hard work of defining precisely how a nation deals with an act of war carried out under these circumstances.

The international legal community has been quite vocal in condemning American treatment of POWs after 9/11, but it hasn’t evolved international law, even theoretically, to cope with this. Sept. 11 is not a crime in the proper sense of the term, and prosecuting the guilty is not the goal. Instead, it was an act of war carried out outside the confines of the Geneva Conventions. The U.S. goal is destroying al Qaeda so that it can no longer function, not punishing those who have acted. Similarly the goal in 1941 was not punishing the Japanese pilots at Pearl Harbor but destroying the Japanese Empire, and any Japanese soldier was a target who could be killed without trial in the course of combat. If it wishes to solve this problem, international law will have to recognize that al Qaeda committed an act of war, and its destruction has legal sanction without judicial review. And if some sort of protection is to be provided al Qaeda operatives out of uniform, then the Geneva Conventions must be changed, and with it the status of spies and saboteurs of all countries.

Holder has opened up an extraordinarily complex can of worms with this decision.

I have a very bad feeling about this; it deepens my already grave concern about the judgment and general competence of this administration. (Readers will kindly save themselves the trouble of remarking upon the competence of the previous administration, which is not the topic here.)

Meanwhile, we learn in this item that our Governor, David Patterson, was informed six months ago that president Obama was planning to try KSM here in Gotham.

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14 Comments

  1. the one eyed man says

    Deciding what to do with Gitmo detainees is one of the most difficult problems Obama inherited from the feckless Bush administration. Deciding which detainees are truly guilty is one problem, but this does not apply to KSM, whose guilt seems well established. What to do with a prisoner who has been held incommunicado for seven years, without being charged with a crime, and tortured for a large part of his confinement, is not an easy decision. You obviously can’t let him go, but neither can you continue to lock him up in perpetuity.

    In my view, KSM committed a crime on American soil, and should be tried in New York, where the crime was committed. Trying him in a military court has its own problems (among them is the fact that military courts are part of the executive branch, and he ought to be tried by the judicial branch), but it carries with it unfortunate symbolism, as it elevates him to the status of a warrior. He ought to be tried as the mass murderer that he is, just as Timothy McVeigh, Jeffrey Dahmer, the Washington snipers, the first set of WTC bombers, and others were. There is no better symbolism than exhibiting confidence that our legal system, with principles of fairness which are universally applied. It shows strength, rather than cowering in the face of terrorists, as many are now advocating.

    The entire issue boils down to whether you believe that KSM deserves a fair trial. If you do, then the question is whether there is another venue which would be more appropriate than Federal Court in Manhattan. If you don’t, then you are obligated to explain why we ought to abandon what has been a core American value since the Declaration of Independence: no matter how heinous the crime, the state does not have the right to incarcerate or execute an individual without a fair trial.

    Posted November 18, 2009 at 1:54 pm | Permalink
  2. Malcolm says

    KSM did not commit a “crime on American soil”; he plotted an act of war in a foreign country. Did you read the article?

    Posted November 18, 2009 at 2:05 pm | Permalink
  3. the one eyed man says

    If you conspire to commit a crime, and the crime occurs on American soil, you are legally responsible for it, regardless of where the planning took place.

    For example, if Bernie Madoff had planned his Ponzi scheme from Bermuda, but it ensnared American citizens using American bank accounts, he could have been extradited and brought to justice in American courts.

    Nor does the crime have to take place on American soil. Richard Reid (the shoe bomber) was brought to trial for bringing explosives on an airplane, even though the act took place far outside American borders. The fact that a crime is planned or executed outside American territory does not preclude indictment and trial in American courts.

    Posted November 18, 2009 at 2:25 pm | Permalink
  4. Malcolm says

    Again – have you read this article? The author addresses exactly these objections.

    Posted November 18, 2009 at 3:10 pm | Permalink
  5. the one eyed man says

    I have read the article. It is filled with a number of incorrect statements, starting with the first sentence. The events of 9/11 were not an act of war. War is when the militia of one nation attacks the militia of another nation. In the case of Al Qaeda, a stateless and amorphous group of terrorists attacked a civilian target. While no less lethal, there is a wide distinction between warfare and terrorism. Conflating the two is misleading and intellectually flaccid. The rest of the author’s thesis is incorrect because it flows from this initial misperception.

    Those who use the metaphor of war do so selectively, when it suits their purposes. For example, we did not torture Nazi prisoners (or, more precisely, in the rare instances when they were tortured by American soldiers, the soldiers were disciplined). While the Nazis were far more dangerous, and caused infinitely greater damage, than Al Qaeda, we treated their prisoners according to the rules of war. However, those who choose to portray the struggle against Al Qaeda as a war do not then treat their detainees as warriors. Have cake, eat it too.

    KSM has far more in common with Timothy McVeigh than, say, Rommel. Both McVeigh and KSM caused the deaths of innocents to make a twisted political point. The differences between the two are far less important than this essential similarity. The crimes are the same, although the motives and circumstances differ. Hence they ought to be tried in the same venue with the same set of rules and procedures.

    However, this is a distraction from the real issue. In your opinion, should KSM get a fair trial? If so, then what venue would be preferable to Federal courts? If not, why not?

    Posted November 18, 2009 at 4:26 pm | Permalink
  6. Malcolm says

    Well, the point of the article is that the definition you give of war — conjuring up images of the Prussians lined up in full regalia to face the French with cannons at daybreak — is obsolete, and insufficient to accommodate the complex situation we face nowadays.

    Jihadist terrorists — who certainly see themselves as soldiers engaging in holy war, in which the House of Islam struggles against the House of War — are, I agree, not uniformed combatants fighting for a national army, but neither are they simply run-of-the-mill criminals. In this asymmetrical conflict they are captured not by law-enforcement officers, but by our own soldiers.

    Our soldiers are not policemen; the training and purpose of the army and domestic law-enforcement agencies are utterly different. Under such circumstances the procedures and expectations of domestic criminal proceedings, the technicalities and loopholes of prosecution and defense, as well as the the acquisition and production of evidence, are a very poor fit. To see KSM acquitted on some nicety along these lines would be a disaster — and if we are to be assured that this won’t happen, well then this is nothing but a show trial, a kangaroo court — an impression President Obama recently reinforced by reassuring those who doubt the wisdom of this move that they won’t feel that way once KSM has been found guilty and executed.

    As this article argues, we need to think hard about how our legal system must evolve to reflect these new realities. But just shoehorning them into the existing criminal-courts system is a bad idea, no matter what public-relations points it may score.

    Posted November 18, 2009 at 5:46 pm | Permalink
  7. JK says

    one-eye? I’m uncertain whether you’ve the time for such a long read but you may recall that at one time the military considered trying KSM in a tribunal. The military went so far as to prepare some paperwork wherein you may find that the dog actually committed crimes within the US proper. That should satisfy at least one of your “objections.”

    http://fl1.findlaw.com/news.findlaw.com/wsj/docs/terrorism/usksmetal20808chrgs.pdf

    Posted November 18, 2009 at 6:10 pm | Permalink
  8. the one eyed man says

    I don’t disagree that “our legal system must evolve to reflect these new realities,” and in some ways terrorism is neither fish nor fowl. The Bush administration came up with legal fictions which were routinely discarded by the Supreme Court and other courts, so we wasted six years without establishing a workable legal framework to sort through these issues. That’s also the same period of time that Gitmo detainees have been held without charges or evidence presented against them. Habeas corpus is about as basic a principle as we have, as well as the notion that justice delayed is justice denied. The time to do something is now, but each of the alternatives has its own drawbacks.

    We have these choices: continue to let KSM rot in jail without trial, execute him without trial, try him in a military court, or try him in a civilian court. I believe the first two choices are non-starters, for obvious reasons. Cogent arguments regarding why a civilian court is better than a military court can be found at http://www.bloomberg.com/apps/news?pid=20601039&sid=aSf54LAfJyyQ. I agree with the author and hence believe that the Obama administration is doing the right thing.

    I don’t think Holder would try KSM in a federal court if he thought he would lose the case. I think the likelihood of KSM getting off on a “legal nicety” is about as great as seeing me in the Master’s Tournament next April. You could perhaps have a rogue juror who causes a mistrial or hung jury, leading to a retrial. If a black swan event occurred and KSM was acquitted, he could be indicted the next day for the plane which crashed in Pennsylvania. I wouldn’t expect a death penalty, as I doubt a judge would give grant him his wish of martyrdom. I would bet substantial odds that he faces the rest of his life in the Big House and dies there.

    It is important not only that justice be carried out in a fair way, but that it be seen to be carried out in a fair way. Partly this is because we right-thinking Americans have certain core values which are immutable over time, regardless of the nature of the threat or how it may be different than previous threats. To use an over-used cliché, if we abandon our core values, then the terrorists have won. However, there is a pragmatic element which may be equally important. If we are perceived throughout the world as being faithful to core American values, we will have gone very far towards winning the so-called war on terror. While I’m not sure if you can get through a Glenn Greenwald column without gagging, his essay today at http://www.salon.com/news/opinion/glenn_greenwald/ has quotes from Muslim terrorists and ex-terrorists which are illuminating (they’re towards the bottom, if you’re disinclined to read his eminently sensible disembowelment of the Weekly Standard). Whatever you may think of Obama – and the quick answer to your “grave concern about the judgment and general competence of this administration” is to ask which administration, besides Clinton’s, in your lifetime, has had better judgment or competence – the fact that the American electorate elected a black man named Barack Hussein Obama to be President has probably done more to change hearts and minds throughout the world than anything else we have done in a very long time. (Not that I am suggesting that he should have been elected because it pleases foreigners. He should have been elected because of his all-around awesomeness. But I digress.) I think that Obama and Holder faced a very difficult issue here and handled it in exactly the right way.

    Posted November 18, 2009 at 6:45 pm | Permalink
  9. JK says

    Oops. I committed an (by now too regular) error by not reading twice prior to commenting.

    Apologies.

    Posted November 18, 2009 at 6:46 pm | Permalink
  10. Malcolm says

    Peter, that link you provided doesn’t seem to be working.

    First: the competence of previous administrations is not the issue here, and is irrelevant to the competence of the present one, as I tried to pre-emptively point out in the post itself, in the vain hope of forestalling exactly the comparison you couldn’t help yourself from making anyway. Surely you know enough about logical argument to realize that even if every single one of America’s previous chief executives all the way back to George Washington was a gormless, blundering fool, that has no bearing on whether the current occupant of the office is or is not.

    I agree with you that this is a very difficult problem, and I agree also that holding people indefinitely without trial is deeply offensive to our liberal sensibilities (as are, for example, the kitchen-knife beheadings that KSM personally oversaw, but I digress).

    Your argument, however, is weakened by your falling back on the same assurance that the president just gave us, to wit: “don’t worry, he’ll be convicted.” This makes the trial, effectively, a sham, a transparent ploy. (And I am not as confident as you are that once KSM is granted the full panoply of rights and presumptions granted to defendants in U.S. courts — and considering also the difficulties the production of evidence may present in a case like this — that something mightn’t go horribly wrong.) Are we only going to try those folks that we can put on a good show with?

    Given that we agree that KSM and his pals occupy an unmapped territory somewhere between uniformed combatants and common criminals, I would err on the side of caution here — in terms of security, legal precedent, etc. — even if by making an ostentatious display of our good nature we might instead burnish our image.

    To repost an excerpt from this article:

    A new variety of warfare has emerged in which treatment as a traditional POW doesn’t apply and criminal law doesn’t work. Criminal law creates liabilities the United States doesn’t want to incur, and it is not geared to deal with a terrorist like Mohammed. U.S. criminal law assumes that capture is in the hands of law enforcement officials. Rights are prescribed and demanded, including having lawyers present and so forth. Such protections are practically and theoretically absurd in this case: Mohammed is not a soldier and he is not a suspected criminal presumed innocent until proven guilty. Law enforcement is not a practical counter to al Qaeda in Afghanistan and Pakistan. A nation cannot move from the rules of counterterrorism to an American courtroom; they are incompatible modes of operation. Nor can a nation use the code of criminal procedures against a terrorist organization operating transnationally. Instead, they must be stopped before they commit their action, and issuing search warrants and allowing attorneys present at questioning is not an option.

    Given all of this, I think a military tribunal is probably the best choice. (Though if I met the guy in a back alley, other options might come to mind.) Above all, I want to be very, very sure this man never gets loose.

    Posted November 18, 2009 at 7:51 pm | Permalink
  11. the one eyed man says

    Re Obama vs. his predecessors: competence and judgment are relative things. If each of the preceding Presidents were “gormless, blundering fools,” and Obama were slightly less gormless and blundering, then Obama would not be considered gormless or blundering. In the land of the blind, the one eyed man is king.

    Here are the links:

    http://www.bloomberg.com/apps/news?pid=20601039&sid=aSf54LAfJyyQ

    http://www.salon.com/news/opinion/glenn_greenwald/

    They should work – if not, you can get them from the Bloomberg and salon.com homepages.

    Posted November 18, 2009 at 8:49 pm | Permalink
  12. Malcolm says

    Thank you, your Highness. I’ll take a look.

    Posted November 18, 2009 at 8:59 pm | Permalink
  13. the one eyed man says

    Your Highness? Better than Cyclops, I guess.

    Posted November 18, 2009 at 9:06 pm | Permalink
  14. JK says

    Malcolm,

    Your “Given all of this, I think a military tribunal is probably the best choice. (Though if I met the guy in a back alley, other options might come to mind.)”

    I’ll take door number two.

    http://www.longwarjournal.org/archives/2009/10/another_former_gitmo.php

    After all, this guy graduated with honors from the Saudi “Play Nice Boys” School for Terrorist Rehabilitation.

    Posted November 18, 2009 at 11:37 pm | Permalink